AIN v Medical Council (New South Wales) - [2013] NSWADT 112

Administrative Decisions Tribunal

New South Wales

Case Title: AIN and Medical Council of NSW

Medium Neutral Citation: [2013] NSWADT 112

Hearing Date(s): On the papers

Decision Date: 24 May 2013

Jurisdiction: General Division

Before: Naida Isenberg, Judicial member

Decision:
The decision under review is affirmed other than in relation to documents 3, 30 and 46 (the doctors' resumes) and documents 6, 13, 41, 68, 113 and 134 (counsels' invoices) which are to be released to the applicant redacted in accordance with these reasons.

Catchwords: Government information - conclusive presumptions - legal professional privilege and Health Care Complaints Act 1993 - overriding public interest against disclosure of information - reasonable grounds to believe that there are additional documents - reasonable searches to find the documents

Legislation Cited: Government Information (Public Access) Act 2009
Freedom of Information Act 1989
Privacy and Personal Information Protection Act 1998
Health Care Complaints Act 1993
Medical Practice Act 1992
Health Practitioner Regulation National Law (NSW) 2009
Public Sector Employment and Management Act 2002
Health Practitioner Regulation (New South Wales) Regulation 2010
Evidence Act 1995
Administrative Decisions Tribunal Act 1997

Cases Cited: Commissioner of Police v Camilleri [2012] NSWADTAP 19

Category: Principal judgment

Parties: AIN (Applicant)
Medical Council of NSW (Respondent)

Representation

- Solicitors: AIN (Applicant in person)
Crown Solicitors Office (Respondent)

File Number(s): 123052

REASONS FOR DECISION

BACKGROUND

On 20 December 2011 AIN, the applicant, a medical practitioner, requested the respondent to provide access to information, pursuant to the Government Information (Public Access) Act 2009 ('the Act'). She sought documents held by the respondent in her name, other than documents included in the files provided by the respondent on 2 December 2011, and other documents relating to her not held in that file and all other documents up until the date of the application.
About 2,000 pages were released to the applicant but the respondent refused access to 139 documents, on the basis that there was an overriding public interest against the disclosure of the information. The applicant seeks review of that decision.
After the application for review was filed, the respondent released some further information - some whole documents and some partial documents.
Since the application for review the respondent has conducted a further search and has located a further 24 documents. The respondent considered that the public interest favours disclosure of all of those documents, and I understand them to have been provided to the applicant.
The Tribunal set a timetable for filing evidence and submissions which was broadly complied with. A schedule, detailing the documents to be reviewed by the Tribunal was filed by the respondent, and a copy of the documents which had been withheld from the applicant. The applicant provided a list of documents she considered were missing from those either provided to her or which the respondent had refused to provide.
The applicant requested the Tribunal to issue a summons to the respondent to produce extensive material, mainly relating to its TRIM system and documents which might be on that system. I came to the view that it was inappropriate to do so in the circumstances of the case.
In support of its contentions the respondent relied on statements by Miranda St Hill, the respondent's Legal Director, who provided two open statements and also a confidential statement. The respondent asked that the latter statement be kept confidential from the applicant and any other member of the public, so that privilege in those communications is not waived: s.107(3)(b) of the Act, s.75(2)(c) and (d) of the Administrative Decisions Tribunal Act 1997.
The applicant provided a statement and extensive submissions. Some of her submissions covered the history between the parties, and while informative, were largely irrelevant to the issues to be determined and sought to canvass aspects of the respondent's decision-making in the past which was unassociated with her access application.

Legislative scheme

The objects of the GIPA Act are set out in s 3, which provides:
Object of Act
(1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by:
(a)authorising and encouraging the proactive public release of government information by agencies, and
(b)giving members of the public an enforceable right to access government information, and
(c)providing that access to government information is restricted only when there is an overriding public interest against disclosure.
(2) It is the intention of Parliament:
(a)that this Act be interpreted and applied so as to further the object of this Act, and
(b)that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.
It was not disputed that the information the subject of this application, is government information and is held by an agency: s.4(1) of the GIPA Act.
Section 5 provides that there is a presumption in favour of the disclosure of government information unless there is an 'overriding public interest against disclosure.'
Subsection 12(1) provides that there is a 'general public interest in favour of the disclosure of government information.' Subsection 12(2) provides that nothing in the Act limits any other public interest consideration in favour of the disclosure of government information, which may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government Information. The subsection also sets out a number of examples of public interest considerations in favour of disclosure of government information.
Section 13 of the GIPA Act sets out the test that is to be applied in determining whether there is an overriding public interest against disclosure. That test is in the following terms:
Public interest test
There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interests considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure
The public interest considerations against disclosure are set out in a Table in s.14 of the GIPA Act ('the Table').
Section 15 sets out the principles that are to be applied when determining whether there is an overriding public interest against disclosure. It provides:
15 Principles that apply to public interest determination
A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles:
(a)Agencies must exercise their functions so as to promote the object of this Act.
(b)Agencies must have regard to any relevant guidelines issued by the Information Commissioner.
(c)The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account.
(d)The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account.
(e)In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information.
Section 54 of the GIPA Act contains a requirement that an agency is to take reasonably practicable steps to consult with specified persons before providing access to information. That requirement only applies to information, which is of a kind that requires consultation under s.54(2) which includes personal information about a person: see s.54(2)(a) of the GIPA Act.
On an application for review to the Tribunal, the onus is on the agency to establish that the decision the subject of review is justified: s.105(1).

ISSUE BEFORE THE TRIBUNAL

1.Is there an overriding public interest against disclosure of the information sought by the applicant in terms of s.13 of the GIPA Act?
2.Are there reasonable grounds to believe that there are additional documents? If so, did the respondent undertake reasonable searches to find the documents?

CONSIDERATION

In deciding whether to release information, the Tribunal must apply the public interest test and decide whether or not an overriding public interest against disclosure applies to the information. As noted above, s.13 of the GIPA Act requires the Tribunal to undertake the following steps:
·identify the relevant public interest considerations in favour of disclosure
·identify the relevant public interest considerations against disclosure.
·determine the weight of the public interest considerations in favour of and against disclosure and where the balance between those interests lies.

Public interest considerations in favour of disclosure

Section 12 of the GIPA Act reiterates the general presumption in favour of disclosure of government information, and lists examples of public interest considerations that favour disclosure.
It was unclear what public interest considerations that the applicant claimed, either from the examples in s.12 or generally. Having regard to her emphasis in submissions upon allegations improper conduct by the respondent, especially through its legal staff, it is reasonable to assume that her interest was, at the very least, in exposing that perceived misconduct.

Public interest considerations against disclosure

The respondent submitted that the remaining documents which should not be disclosed, either in whole or in part, fall into the following categories:
a.The documents would be privileged from production in legal proceedings on the grounds of client legal proceedings, so that there is a conclusive presumption that there is an overriding public interest against disclosure: cl. 5 of Sch. 1 to the Act.
b.The documents were obtained by the respondent from the Health Care Complaints Commission, as part of their joint exercise of functions conferred by the Health Care Complaints Act 1993, so that there is a conclusive presumption that there is an overriding public interest against disclosure: cl. 1 of Sch. 1 to the Act.
c.The documents contain the personal contact details of people who have provided their CVs to the respondent (or its predecessor, the Medical Board, included as the respondent) and there is an overriding public interest against disclosing these details: cl. 3(a) and (b) of the Table.
d.The documents contain the hourly rates of barristers engaged by the respondent and disclosure would sufficiently prejudice their commercial interests, so that there is an overriding public interest against disclosing that information: cl. 4(d) of the Table.
While the Tribunal's task is to balance the public interest considerations for and against disclosure of the information sought, in relation to information properly the subject of a claim for legal professional privilege there is a conclusive presumption that there is an overriding public interest against disclosure: schedule 1 cl. 5(1) of the Act.
Similarly, in relation to information, the release of which is prohibited by the Health Care Complaints Act 1993, there is a conclusive presumption that there is an overriding public interest against disclosure: schedule 1 cl. 1 of the Act.
Ms St Hill's first open statement outlined the history between the parties, notably:
The applicant is a medical practitioner who was first registered to practise medicine in 1980 (conditional upon her completing her internship).
After some years, the applicant obtained non-practising registration, which was conditional upon her not practising medicine. The applicant subsequently obtained Limited Practice Registration, which allowed her to undertake limited practice without professional indemnity insurance.
A few years later, the applicant elected to transfer her registration to "Limited Prescribing and Referral Registration'', which allowed her, for a reduced registration fee, to prescribe medication to patients and refer patients to other practitioners, provided that no fee was charged. (This form of registration was intended to allow retired practitioners to treat friends and family on a limited basis and did not require professional indemnity insurance.)
Shortly thereafter, the applicant sought full general registration but her application was refused. She lodged an appeal to the Medical Tribunal, which did not proceed. On receipt of further information from the applicant, her application for unconditional registration was referred to a formal inquiry, under Schedule 1 to the now-repealed Medical Practice Act 1992 ("the Inquiry"), which decided it was appropriate to grant her general registration subject to certain conditions.
The applicant appealed that decision to the Medical Tribunal. The respondent briefed Ms Furness SC to act on its behalf in those proceedings. The proceedings were resolved by the parties agreeing to revised conditions.
The applicant made a complaint to the Health Care Complaints Commission ("HCCC") about a member of the respondent's Board, although the HCCC discontinued the complaint. The respondent then decided that it should investigate the applicant's complaint, as it related to the Board member, but the respondent's Executive Committee decided to take no further action in relation to the applicant's complaint and informed the applicant accordingly. The applicant then asked for the decision to discontinue her complaint to be reviewed. The HCCC undertook that review.
The applicant's lawyers made a complaint on her behalf that the respondent had breached the non-publication orders made by the Medical Tribunal in that an internet search for her name (on Google) led to a search result that displayed her name in connection with the Medical Tribunal's reasons for decision. The respondent subsequently investigated the applicant's claims, took legal advice, briefed Ms Richardson of counsel, and then rectified the issue.
The applicant then wrote to the Council saying that its decision to grant her a Limited Prescribing and Referral Registration was without statutory power and that she, in fact, held General Registration at all relevant times. The respondent then briefed Ms Furness SC and Ms Richardson to advise in relation to the issues raised by the applicant.
In November 2011, Ms H, a legal officer received a complaint from the Law Society, made by the applicant. Ms Furness SC provided Ms H with legal advice in relation to the complaint and then the HPCA instructed the Crown Solicitor to act in relation to the applicant's complaint against Ms H.
In December 2011, the respondent wrote to the applicant, saying that it now appreciated that her registration in 2008 did not require amendment and that she had retained General Registration. In February 2012, the respondent amended the register to record that the applicant's general registration was not subject to the conditions previously recorded as a result of the Inquiry and Medical Tribunal proceedings. Similarly the National Register was also amended.

Background to the respondent's structure

By way of background, Ms St Hill wrote that the Medical Board, the respondent's predecessor, was established by the Medical Practice Act 1992. The respondent was established under s. 41B of the Health Practitioner Regulation National Law (NSW) 2009. All its staff are employed by the Health Professional Councils Authority ("the HPCA"), which is a division of the Government Service: Sch. 1 of the Public Sector Employment and Management Act 2002 ("the PSMEA"). I accept that the staff of the HPCA are therefore employed in the service of the Crown and are employed to enable the HPCA and the health professional councils, as statutory corporations, to exercise their functions: s. 4A and s. 4B of the PSMEA. Clause 18 of the Health Practitioner Regulation (New South Wales) Regulation 2010 provides that the assets and liabilities of a former Board are taken to be the assets and liabilities of a Council. For the purposes of this matter I make no distinction between the respondent and its predecessor: cl.14 Sch 4 to the Act.

Are there documents which would be privileged from production in legal proceedings on the grounds of client legal proceedings, so that there is a conclusive presumption that there is an overriding public interest against disclosure: cl.5 of Sch. 1 to the Act?

Section 14(1) of the Act provides that it is to be conclusively presumed that there is an overriding public interest against disclosing any of the government information described in Sch. 1 to the Act. Clause 5 of Sch. 1 of the Act relevantly provides:
It is to be conclusively presumed that there is an overriding public interest against disclosure of information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege), unless the person in whose favour the privilege exists has waived the privilege.
The terms 'legal professional privilege' and 'client legal privilege' are not defined in Schedule 4 of the 'Interpretative provision' of the Act, but are to be interpreted in accordance with the general law.
The historical basis for legal professional privilege is that it promotes the public interest because it assists and enhances the administration of justice by facilitating the representation of clients by legal advisers and encourages the client to make a full and frank disclosure of the relevant circumstances to the legal adviser: Grant v Downs (1976) 135 CLR 574.
The principles governing legal professional privilege were usefully summarised by Young J in AWB Ltd v Cole (No 5) (2006) 155 FCR 30 at [44]. In applying those principles it is first necessary to decide in relation to each document for which the exemption is claimed, whether the respondent has discharged the onus of establishing that it was brought into existence, for the dominant purpose of giving or obtaining legal advice.
Those common law principles are now reflected in Part 3.10, Division 1 (Client Legal Privilege) of the Evidence Act 1995, especially sections 117 and 119 to protect confidential communications between a client and his or her lawyer where such communications are for the dominant purpose of the client being provided with professional legal services.
Section 117 contains the following definitions:
Client includes:
(a)a person or body who engages a lawyer to provide legal services or who employs a lawyer (including under contract of service),
(b)an employee or agent of a client.
(c)an employer of a lawyer if the employer is:
(i)the Commonwealth or State or Territory, or
(ii)a body established by a law of the Commonwealth or a State or Territory,
...
(f)a successor to the rights and obligations of a client, being rights and obligations in respect of which a confidential communication was made.
Confidential communication means a communication made in such circumstances that, when it was made:
(a)the person who made it, or
(b)the person to whom it was made,
was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law.
Confidential document means a document prepared in such circumstances that, when it was prepared:
(a)the person who prepared it, or
(b)the person for whom it was prepared,
was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law.

Section 118 relates to the provision of legal advice:
Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of:
(a) a confidential communication made between the client and a lawyer, or
(b) a confidential communication made between 2 or more lawyers acting for the client, or
(c) the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person,
for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.
Section 119 relates to privilege in the context of litigation:
Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of:
(a)a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made, or,
(b)the contents of a confidential document (whether delivered or not) that was prepared,
for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party.
Legal professional privilege therefore will only attach to confidential information made for the dominant purpose of obtaining or giving legal advice or for use in legal proceedings. The fact that the author of a document is a lawyer does not automatically determine that privilege attaches to the document; rather, it must be shown that the document was brought into existence in the course of the performance of the lawyer's professional role.
The protection of legal professional privilege is not limited to communications made directly between a lawyer and his or her client for the dominant purpose of obtaining or giving legal advice or for the purposes of litigation; communications between a client's lawyer and third parties may also attract privilege if it can be shown that a document was prepared for the dominant purpose of actual or contemplated legal proceedings. Legal privilege may also be extended to copies of documents that are not privileged where the copy was made for the dominant purpose of obtaining legal advice or for use in pending or contemplated litigation: Cianfrano v Director-General, Premiers Department NSW & Anor [2004] NSWADT 255 at [30] ('Cianfrano').
It was convenient to consider separately the legal advice provided to the respondent by its external legal advisers and by its internal legal advisers.
Before turning to that, I will address the applicant's claims of improper conduct by the both the respondent's external and internal lawyers. She alleged that Ms H, Ms St Hill and Ms Furness SC, were all engaged in improper conduct, so that their correspondence cannot be said to be the subject of legal professional privilege. These are extremely serious allegations, which were strenuously denied by the respondent on behalf of those persons.
The relevance of these allegations to the present matter is that s.125 of the Evidence Act 1995 outlines circumstances in which client legal privilege may be lost through misconduct:
(1) This Division does not prevent the adducing of evidence of:
(a) a communication made or the contents of a document prepared by a client or lawyer (or both), or a party who is not represented in the proceeding by a lawyer, in furtherance of the commission of a fraud or an offence or the commission of an act that renders a person liable to a civil penalty, or
(b) a communication or the contents of a document that the client or lawyer (or both), or the party, knew or ought reasonably to have known was made or prepared in furtherance of a deliberate abuse of a power.
(2) For the purposes of this section, if the commission of the fraud, offence or act, or the abuse of power, is a fact in issue and there are reasonable grounds for finding that:
(a) the fraud, offence or act, or the abuse of power, was committed, and
(b) a communication was made or document prepared in furtherance of the commission of the fraud, offence or act or the abuse of power,
the court may find that the communication was so made or the document so prepared.
(3) In this section: "power" means a power conferred by or under an Australian law.
In Kang v Kwan [2001] NSWSC 698 at [37], Santow J set out a number of comprehensive principles governing the operation of s.125 of the Evidence Act, relevantly:
...
5.Thus where it is alleged that the communication falls outside the ambit of protection for legal professional privilege it is not sufficient for the party seeking to resist the claim for legal privilege merely to state or assert that the communication was made in furtherance of a fraud or other illegal purpose but must adduce admissible evidence: Commissioner of Australian Federal Police v Propend Finance Pty Limited (supra).
6.Although the standard of proof is not required to the level of proof on the balance of probabilities that the communication was made in the commission of a fraud or other improper purpose, there must be "something to give colour to the charge", some evidence at a prima facie level that has foundation in fact grounding such a claim: per McHugh J in Propend at 587; Hill J in Zemanek (supra) at 6.
7.Consistent with the reasoning in Propend, the standards for establishing reasonable grounds will depend on the circumstances, though must still be sufficient to "give colour to the charge", that is at a prima facie level. Thus if a person challenging privilege is clearly not in a position to lead very much evidence concerning purpose, as where the other party has exclusive access to that evidence, the Court may be satisfied with relatively less evidence. In contrast, much more evidence may be required where the party challenging improperly obtained access to that evidence; Watson v McLearnon [2000] NSWSC 19, Hodgson CJ in Eq, 1 February 2000.
9.I would follow the view, though expressed as tentative, that "fraud", as used in s.125, requires an element of dishonesty; per Hodgson CJ in Eq in Idoport para [63]. I would however use that term to include the kind of sharp practice often associated with equitable fraud encompassed by the Shorter Oxford Dictionary sense of dishonesty, namely "lack of probity; disposition to deceive, defraud or steal". I would agree also that an "abuse of power7' which is dishonest would be caught by sl25(l)(b) as is clear from the requirement that there be a "deliberate" abuse of power. It is difficult to imagine a deliberate abuse of power that does not involve some element of dishonesty but I leave open that possibility for future decision.
10.It follows that the use of the word "deliberate" in s.125(1)(b) requires that the client know that the acts in question are an abuse of power, not merely that the client unknowingly but deliberately commit acts that constitute an abuse of power: per Hodgson CJ in Idoport para [64].
...
In Van Der Lee v State of New South Wales [2002] NSWCA 286, the Court of Appeal considered a similarly worded exception in s.131 of the Evidence Act, and held that "fraud" required actual dishonesty and that the word "deliberate" required that the person concerned must be aware that he or she is abusing power: at [61].
In Saggers v Director General, Attorney General's Department [2005] NSWADT 193, the President said at [36] that the malfeasance or misconduct must be of a gross kind, not one that may be no more than an administrative oversight in the course of a process which the Act clearly entitled the Government to undertake.
In Cianfrano Montgomery JM said, citing his earlier decision of McGuirk v University of New South Wales [2006] NSWADT 84 at [36] that a mere allegation of wrongdoing is not enough and that an applicant bears the onus of demonstrating prima facie evidence of wrongdoing. Such serious allegations ought to be made out to the standard described by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-363.
The applicant alleged:
·There was an amendment to a draft set of orders to remove the words "In accordance with Part 3, Schedule 1 of the Medical Practice Act 1992". It should be inferred, in the absence of any other evidence, that Ms H (whose name I have anonymised because of serious, and as I understand, as yet unsubstantiated allegations being investigated by the Law Society and/or the Legal Services Commissioner) made that amendment and further, that she knew that there was no power to impose conditions upon the applicant and was deliberately trying to maintain the conditions unlawfully imposed on the applicant.
·
·In the costs hearing before the Medical Tribunal, Ms Furness SC made submissions about the nature of a "limited prescribing and referral" registration. She and the Medical Council must therefore have understood that the Council had no power to impose conditions and were acting with iniquity in their conduct before at the Inquiry and the before the Tribunal.
·
·Ms H contravened the Medical Tribunal's non-publication order by advising the Australian Health Practitioner Registration Agency of the conditions that had been imposed by the Tribunal on the applicant's registration. This was a breach of the non-publication order. In the absence of any evidence from Ms H, this Tribunal should assume that the breach was a deliberate abuse of power.
·
··By seeking information from Medicare/PBS about the applicant's prescribing history, this Tribunal should presume that Ms H was deliberately abusing her power as a public official.
In response to these serious allegations, Ms St Hill provided the confidential statement setting out the circumstances in which the advices of counsel were sought and received. In the end result I have not found it necessary to take into account the information in the confidential affidavit in reaching my decision.
Ms St Hill wrote in her open affidavit that the question of whether a doctor with a "Limited Prescribing and Referral Registration" was a fully registered doctor (and therefore not able to be subject to the imposition of conditions) was first raised by the applicant with the respondent in a letter dated 1 October 2011, that is, almost 2 years after the Inquiry and one year after the Medical Tribunal proceedings had finished. The applicant had been legally assisted in both proceedings. On 15 November 2011 and 6 December 2011 the respondent briefed counsel to provide advice on the issue raised by the applicant: documents 110 and 78. I have read those documents and am satisfied as to the circumstances in which counsel were instructed. Counsel provided their advice on 29 November 2011 and 12 December 2011: documents 98 and 130. On 15 December 2011, the Council wrote to the applicant saying that it now appreciated that her registration in 2008 did not require amendment and that she had in fact retained General Registration.
Actions of lawyers are not "an abuse of power" for the purposes of s.125, simply because the respondent may have acted outside its statutory powers. Section 125 requires that the legal representatives knew that the acts in question were an abuse of power, and deliberately acted so as to exceed the known statutory powers of the Council: Kang v Kwan at [37] points 9-10; Van Der Lee at [61]; Saggers. It is not sufficient for the applicant to simply assert a fraud or an abuse of power on the part of the respondent's legal representatives. In her submissions the applicant claimed that Ms H, Ms St Hill and Ms Furness SC were aware that there was a potential deficiency of statutory power to impose conditions on the applicant's registration (my emphasis) and that consequently each communication directed to achieving that outcome was in furtherance of a deliberate abuse of power. I reject this submission because even the applicant does not assert that the legal advisors were aware of an actual, as distinct from potential, deficiency. The respondent was entitled to seek legal advice about its activities.
The applicant, in effect, generally alleged a deliberate attempt by the respondent's lawyers to undermine her interests. She provided an example that her emails had been rejected by the respondent as spam for a short period of time, and concluded that that must necessarily have been done at the request of Ms St Hill with the intention of blocking communications from the applicant. There was no evidence whatsoever that, if this occurred, that it had been in any way deliberate.
The applicant asked the Tribunal to draw an adverse inference because the respondent did not provide statements from Ms Furness, Ms H and other of the respondent's staff. The respondent referred to Roads and Maritime Services v AF; AF v Roads and Maritime Services [2011] NSWADTAP 63 at [35] where the Appeal Panel said, referring to s.73 of the Administrative Decisions Tribunal Act 1997 ('the ADT Act'), in context of an application under the Privacy and Personal Information Protection Act 1998, that the Tribunal would ordinarily require only the documents held by an agency and its internal review decision as evidence. Proceedings in the Tribunal are to be dealt with as quickly as is practicable: s.73(5) of the ADT Act. The respondent noted that at least 25 people were referred to in the documents which are before the Tribunal, as well as additional persons mentioned in the submissions of the applicant.
I see no reason for those persons to provide statements and potentially be called to give evidence. It is not the Tribunal's role in this matter to re-visit the history of the relationship between the parties, by seeking evidence from the many players that have had a role in shaping that relationship. I consider it appropriate that Ms St Hill, the respondent's Legal Director provide the evidence as to the respondent's structure, an overview of the applicant's relevant history with the respondent, and evidence as to searches conducted by her and staff under her supervision. I am in no position to draw any inference, adverse or otherwise, about the conduct of people who have not provided a statement. My focus in the matter at hand is the applicant's access application.
I accept that the applicant has a number of concerns about the conduct of the respondent, especially Ms H. She alleges what might be conservatively be described as incompetence. She points, for example, to the failure to locate documents, to amendments to the applicant's conditions of practice and to breach of a non-publication order of the Medical Tribunal. However I am reasonably satisfied that that there is no evidence that Ms H and/or Ms St Hill and/or Ms Furness deliberately and knowingly acted with impropriety: Kang v Kwan at [37] points 5-7, and Cianfrano. Administrative errors and oversights by public sector officials or a misunderstanding or ignorance of their organisation's statutory powers and responsibilities will not be sufficient to ground a claim under s.125: Van Der Lee at [61] and Saggers.
I therefore find that the respondent is not precluded from asserting legal professional privilege by virtue of s.125 of the Evidence Act.

Legal advice: external legal advisers

The respondent engaged barristers Ms Furness SC and Ms Richardson to provide it with legal advice on a number of issues, including the applicant's legal proceedings in the Medical Tribunal. Ms Richardson was later engaged to provide advice on a possible breach of the non-publication order, the respondent having anticipated that the allegation of a breach of that order would likely prompt the applicant to take further legal proceedings.
From examination of documents 1, 2, 5, 7, 9, 10, 11, 12, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 32, 40, 42, 42A, 43, 47, 49, 50, 51, 52, 53, 54, 55, 70, 71, 72, and 73, they are documents or parts of documents are correspondence and/or advice, sent by way of letter, email or notes of telephone conversations between Ms Furness SC or Ms Richardson and one or more of the staff of the respondent in relation to the Medical Tribunal proceedings.
From examination of documents 56, 57, 58, 59, 60, 62, 75, 78, 78A, 80, 89, 90, 91, 92, 94, 95, 96, 97, 98, 99, 101, 105, 106, 107, 108, 109, 109A, 110, 111, 114, 118, 119, 120, 121, 122, 124, 129, 130, 131, 136, 137, 138, 139 they appear to be correspondence, sent by way of letter or email, or are notes of telephone conversations between Ms Furness SC or Ms Richardson and one or more of the staff of the respondent. From their context the documents appear to have been prepared in relation to the issues raised by the applicant in her letter of 1 October 2011. I accept, having reviewed the ongoing correspondence that the reference in document 118 to Ms Eastman was in error and that it was a file note of a conversation with Ms Richardson.
Ms St Hill wrote that when the applicant's complaint alleging misconduct by Ms H was received, Ms H's employer, the HPCA, instructed the Crown Solicitor to provide advice and act on her behalf in relation to that complaint. Document 112 is a letter from the respondent to the Crown Solicitor instructing the Crown Solicitor to provide legal advice to Ms H in relation to the applicant's complaint. Ms St Hill said that Ms H permitted the respondent to retain copies of some key information relating to the complaint and the response to that complaint, so as to allow a consistent response to the applicant. I accept that this information was retained on the respondent's files and I accept that the respondent is properly regarded as the client when the external lawyers were engaged to provide advice: s. 117(1)(a) of the Evidence Act.
I have carefully considered each document and am satisfied, in respect of each, that it came into existence in the course of obtaining advice from the respondent's independent legal advisers, in confidence, and for the dominant purpose of providing the respondent with legal advice. As such, each is properly the subject of a claim for legal professional privilege and there is therefore a conclusive presumption that there is an overriding public interest against disclosure pursuant to cl.5 of Sch. 1 to the Act.

Legal advice: internal legal advisers

Ms St Hill explained:
·The HPCA is an administrative body that supports the respondent to perform its regulatory and legislative functions. Amongst its employees are legal staff who give legal advice to Health Professional Councils, including the respondent. In providing legal advice, legal officers take instructions from the respondent, most often via Committee or delegate decisions, and from the respondent's Executive Officer.
·The work of the legal officers is to guide the decisions of the respondent, its sub-committees and programs to ensure that they comply with the legislative regime. Another important part of the role is to ensure that common law obligations, in particular administrative law obligations such as procedural fairness and sound decision making practices are followed.
·Legal officers work closely with the respondent and incorporate their understanding of the respondent's policy objectives into their approach to their legal work. It is the role of the legal officers to advise on whether the policy objectives can be achieved, having regard to the legislative and common law parameters.
·As a fundamental part of the job of a legal officer, she and her legal officers also advise the respondent, or any individual member, if a particular policy, goal or proposed decision may present legal difficulties. Although the legal officers work very closely with the staff of the respondent, the advice that given by its lawyers is frank and independent.
·Most of the time, legal officers include their advice or correspondence on the respondent's files. However, separate legal files are also opened, such as for matters that are not conducted under the National Law, and legal officers always maintain and archive a separate file of all documents considered by any adjudication body under the National Law that they are assisting.
·In the absence of a lawful basis for disclosure, only staff who are assisting the respondent, and the Council members themselves have access to the legal officer's files.
·Issues of confidentiality and permitted release of documents is often the subject of advice to staff and a topic of discussion when training hearing members.

It was conceded by the respondent that the relationship between it and the staff of the HPCA does not fit neatly into the definition of 'client' in s.117(1)(c) of the Evidence Act. However, the definition of "client" in s.117 is not exhaustive and, simply put, is a person for whom the lawyer performs legal services and that whether a relationship of that kind exists is to be determined by reference to the intentions of the parties objectively ascertained: see Apple v Wily [2002] NSWSC 855 at [7], approved in Bailey v Department of Land and Water Conservation [2009] NSWCA 100 at [73].
I accept that the respondent is the "client" of the lawyers employed by HPCA to assist it because it is the entity for whom the lawyers perform professional legal services, in a relationship of trust and confidence.
It is well-settled law that client legal privilege attaches to advice and legal services provided by a government salaried legal adviser to a government agency: Waterford v Commonwealth (1987) 163 CLR 54 per Mason CJ and Wilson J at [6].
Ms St Hill said in her statement that all the officers holding legal officer positions hold current practicing certificates. This is one factor to considered in considering if that legal officer is giving independent legal advice: Commonwealth v Vance [2005] ACTA 35 at [20] and [30].
Legal advice, as that term is used in s.118 of the Evidence Act includes advice on the operation and application of laws: General Manager, WorkCover Authority of NSW v Law Society of NSW'(2006) 65 NSWLR 502 at [74]. To be privileged under s.118, the communication must be between a lawyer and a client, confidential and prepared for the dominant purpose of providing "legal advice".
The respondent acknowledged that when advice is given by an in-house lawyer it warrants an extra level of scrutiny to ensure that the dominant purpose of the advice is legal in character, rather than related to administrative or policy issues: Sydney Airports Corp Ltd v Singapore Airlines Ltd [2005] NSWCA 47. In short, the lawyer must be giving "independent legal advice ... acting in the role of a legal adviser giving advice to a client.": ASIC v Rich [2004] NSWSC 1017.
It is not necessary that the document be used in legal proceedings. It is enough that the dominant purpose of the communication or preparation of the document to provide the client with legal services: see Rickard Constructions Pty Ltd v Rickard Hails Moretti Pty Ltd [2006] NSWSC 234.
The applicant made detailed submissions to the effect that the work of Ms H and Ms St Hill is not that of independent legal advisors. She referred to Ms H's role as secretary to the Inquiry and, in relation to the publication on the internet, claimed she was not acting on instructions and was investigation potential impropriety of her own accord. The applicant has made complaints about such issues to the Law Society and the Legal Services Commissioner.
In relation to Ms St Hill, the applicant claimed Ms St Hill did not have the required independence especially when dealing with the applicant's solicitors, her dealings with Google and in relation to PBS/Medicare searches where she claimed Ms St Hill was not acting on instructions from anyone.
From my examination of the documents, and taking into account Ms St Hill's evidence, there is nothing in the matters raised by the applicant which lead me to the view that Ms H and Ms St Hill were acting other than as independent legal advisers.
Ms St Hill wrote that in a small organisation like the respondent, it is not uncommon for a legal officer to also be involved in undertaking administrative tasks as an adjunct to providing legal advice or services. In preparing for hearings (either internal hearings or external hearings such as Professional Standards Committees and Medical Tribunals) much of the organisational and preparatory work of a lawyer has some administrative character. She said that that when she considered each document in respect of which client legal privilege was claimed, where the information involved merely an administrative task or reflects policy, rather than legal advice, being provided by the legal officer, those documents have already been disclosed to the applicant.
The respondent acknowledged that there may also be occasions on which legal advice may be intermingled with policy, administrative, commercial or strategic advice. I was referred to WorkCover Authority of NSW v Law Society of NSW'(2006) 65 NSWLR 502 at [77]. There, the Court of Appeal referring to Balabel v Air India [1988] Ch 317 ('Balabel') which concerned the question whether legal privilege extended only to communications seeking or conveying legal advice, or to all that passes between solicitor and client on matters within the ordinary business of a solicitor, said that the test whether the communication or other document was made confidentially for the purposes of legal advice was to be construed broadly and that legal advice was not confined to telling the client the law; it must include advice as to what should prudently and sensibly be done in the relevant legal context.
In DSE (Holdings) Pty Ltd v Intertan Inc [2003] FCA 1191 Allsop J undertook an extensive review of authorities concerned with the scope of legal advice privilege in the context of documents which contained both legal advice and extraneous matter. After referring approvingly to Balabel, Allsop J said it may be impossible to disentangle the lawyer's views of the legal framework from other reasons that all go to make up the advice as to what should prudently and sensibly be done in the relevant legal framework: at [45.]
Ms St Hill said that the role of the legal staff employed to assist the respondent is, generally speaking, to ensure that the legislative scheme governing the respondent is complied with, and that other administrative law obligations, such as procedural fairness, are followed. She said the bulk of the work undertaken by the legal staff involves providing legal advice. As lawyers with a limited client base, and in a small organisation, the legal officers incorporate policy considerations into their advice, and may also be required to perform some administrative functions.
I accept that there will be times when a lawyer's advice will necessarily include observations about the administrative and policy imperatives in which the client is operating. The test is whether the advice given by the lawyer which incorporates administrative or policy matters if the dominant purpose of the communication is to provide independent legal advice or services to the client.
The respondent identified 3 aspects of advice its internal lawyers had provided:
·Legal advice in relation to the Inquiry
·Legal advice in relation to the applicant's letter of 1 October 2011
·Legal advice and services in relation to Medical Tribunal proceedings (including alleged breach of non-publication order)
In the past, Ms St Hill wrote, one legal officer was usually given responsibility for overseeing an Inquiry. A separate legal file was generally opened to retain the documents that were before the delegates, who did not usually have any legal training. She described the role of the legal officer was akin to counsel assisting. The legal officer would provide advice to the delegates on issues such as the scope of their powers and obligations, whether a particular line of questioning was legally relevant, and other matters of procedural fairness. The legal officer's responsibilities invariably included some administrative tasks associated with overseeing the Inquiry. Administrative tasks were also undertaken by legal support staff at the request of the legal officer.
Each document was carefully examined, especially where there was some intermingling of legal and other advice. For the most part the content and purpose of most of the documents is self-explanatory from the face of the document, and otherwise from its context.
Document 4 contains advice, sent by email between two or more legal officers, in relation to the Inquiry.
Documents 79 is an email trail containing advice, sent by email between two or more legal officers in relation to the issues raised by the applicant in her letter of 1 October 2011. Document 132 is advice, sent by email between two legal officers in relation to the issues raised by the applicant in her letter of 1 October 2011. Documents 61, 77, 81, 82, 83, 85, 86, 87, 88, 93, 99, 100, 102, 104, 115, 116, 117, 123, 125, 126, 127, 128, 135 are correspondence and/or advice, sent by way of letter, email or recorded in notes of telephone conversations between one or more of the respondent's legal officers of and a Council member or other staff member of the respondent in relation to the issues raised by the applicant in her letter of 1 October 2011.
The applicant had complained that the Medical Tribunal decision had been posted on the website hosted by the respondent. Document 74 is an email between two of the respondent's legal officers, in relation to the Medical Tribunal proceedings.
Ms St Hill wrote that on occasions, other of the respondent's staff were also required to communicate with one another in relation to anticipated proceedings. Documents 8, 28, 29, 33, 34, 69, 76 are correspondence and/or advice, sent by way of letter, email or recorded in notes of telephone conversations between one or more of the respondent's legal officers and a Board/Council member or other staff member of the Board/Council, in relation to the Medical Tribunal proceedings. Document 31 is an email between one of the respondent's legal officers and a staff member referring to counsel's advice.
Document 35 is an email exchange between the respondent's legal officers and the respondent's information technology provider in relation to the allegation, raised by the applicant through her lawyers, that the Council had been in breach of a non-publication order made by the Medical Tribunal. I accept Ms St Hill's evidence that the respondent (correctly) anticipated that the applicant may bring legal proceedings in relation to this issue. Information from the provider was sought in anticipation of those legal proceedings.
I accept, from Ms St Hill's evidence, that the respondent's files, remain confidential and their contents are not disclosed to anyone outside of the organisation, unless compelled to do so by some lawful process.
As to whether the communications were for the dominant purpose of the provision of legal advice by a lawyer, in Fitzpatrick v NSW Office of Liquor and Gaming [2010] NSWADT 72 Molony JM summarised the relevant principles in relation to ascertaining the dominant purpose of a confidential communication as follows at [70]:
A 'dominant purpose' is one that predominates over other purposes; it is the prevailing or paramount purpose: FCT v Pratt Holdings & 279-280 per Kenny J at [30], AWB v Cole [2006] FCA 1234 per Young J at [44]. When applying the dominant purpose test an appropriate starting point is to ask what was the intended use or uses of the document which accounted for it being brought into existence: Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357 per Finn J v; AWB v Cole [2006] FCA 1234 per Young J at [44].
The purpose for which the document was prepared must be determined objectively, although the subjective purpose of the author, or those who requested the preparation of the document will be informative: Esso Resources Australia Ltd v FCT (1999) 201 CLR 49 at [39] per Gleeson CJ, Gaudron and Gummow JJ.
The applicant claimed that it was unclear in what capacity each of the in-house lawyers engaged in each of the communications in respect of which privilege is claimed. She referred me to Dye v Commonwealth Securities (No 5) (2010) FCA 950. There Katzmann J considered that legal professional privilege extends to several classes of documents, including:
(1) Communications between a party and the party's professional legal adviser, if confidential and made to or by the adviser in his or her professional capacity and with a view to obtaining or giving legal advice or assistance, even if the communications are made through agents [or employees] of the party and the solicitor or either of them.
(2) Documents prepared with a view to being used in the way described in category (1) above, although not in fact so used.
(3) Communications between the various legal advisers of the client, such as between the solicitor and the solicitor's partner or agent, with a view to the client obtaining legal advice or assistance.
(4) Notes, memoranda, minutes or other documents made by the client or officers of the client or the legal adviser of the client of communications which are themselves privileged, or contain a record of those communications, or relate to information sought by the client's legal adviser to enable the adviser to advise the client or to conduct litigation on the client's behalf.
(5) Communications and documents passing between the party's solicitor and a third party if they are made or prepared when litigation is anticipated or commenced, for the purposes of the litigation, with a view to obtaining advice as to it or evidence to be used in it or information which may result in the obtaining of such evidence.
(6) Communications passing between the party and a third person (who is not the agent of the solicitor to receive the communication from the party) if they are made with reference to litigation either anticipated or commenced, and at the request or suggestion of the party's solicitor; or, even without any such request or suggestion, they are made for the purpose of being put before the solicitor with the object of obtaining his or her advice or enabling him or her to prosecute or defend an action.
(7) Knowledge, information or belief of the client derived from privileged communications made to the client by the client's solicitor or agent.
I have carefully considered each document and am satisfied, in respect of each, that it came into existence in the course of obtaining advice from the respondent's independent legal advisers, in confidence, and for the dominant purpose of providing the respondent with legal advice. Each falls within one or more of the categories identified in Dye. As such, each is properly the subject of a claim for legal professional privilege and there is therefore a conclusive presumption that there is an overriding public interest against disclosure pursuant to cl.5 of Sch. 1 to the Act.

Has the privilege been waived in respect of documents 103 and 112?

Documents 103 and 112 relate to the complaint by the applicant against Ms H, held on the respondent's files. The applicant made detailed submissions about whether this was disclosure which amounted to a waiver of privilege. I do not consider this to be a relevant consideration because the complaint related to Ms H in her capacity as an employee of HPCA providing services to the respondent. The complaint was taken up by her employer and the respondent and counsel was engaged on her behalf.
Accordingly, I find the documents considered above to be exempt by virtue of Schedule 1 cl.5(1) of the Act and therefore there is a conclusive presumption that there is an overriding public interest against disclosure of those documents.

Waiver of privilege generally

I observe that the provisions at schedule 1 cl.5(2) of the Act require the agency to consider whether it would be appropriate to waive the privilege before making the decision to refuse access on the basis of this clause. A decision not to waive privilege is not reviewable by the Tribunal: Sch. 1 cl.5(3) of the Act.

Additional documents

Additional documents were located by the respondent in subsequent searches. The respondent claimed legal professional privilege in respect of some of those documents.
From Exhibits Folder 2: From examination, documents 1 and 3 are correspondence passing between one or more of the respondent's legal officers and counsel in relation to the proceedings before the Medical Tribunal and document 2 is a set of handwritten notes drafted by a legal officer for the Council created for the dominant purpose of providing legal advice to the respondent.
From Exhibits Folder 3: From examination, document 1 is a set of two tables prepared by one of the respondent's legal officers, at the request of the respondent's counsel, to assist legal counsel to advise and appear in the Medical Tribunal proceedings. Document 2 is a set of handwritten notes of the Medical Tribunal proceedings, drafted by one of the respondent's legal officers in providing legal advice to the respondent. Document 3 is a document prepared by a staff member, at the request of the respondent's counsel, to assist counsel in representing the respondent in the Medical Tribunal proceedings.
I have carefully considered each document and am satisfied, in respect of each, that it came into existence in the course of obtaining advice from the respondent's independent legal advisers, in confidence, and for the dominant purpose of providing the respondent with legal advice. As such, each is properly the subject of a claim for legal professional privilege and there is therefore a conclusive presumption that there is an overriding public interest against disclosure pursuant to cl.5 of Sch. 1 to the Act.

Does the respondent hold information which, by virtue of the Health Care Complaints Act 1993, there is a conclusive presumption that there is an overriding public interest against disclosure: cl.1 of Sch. 1 to the Act?

The respondent claimed that it holds documents obtained from the Health Care Complaints Commission, as part of their joint exercise of functions conferred by the Health Care Complaints Act 1993. As such, it claimed there is a conclusive presumption that there is an overriding public interest against disclosure: cl.1 of Sch.1 to the Act.
On 21 February 2011, the applicant made a complaint to the Health Care Complaints Commission ("HCCC"). The HCCC informed the respondent of the complaint, as it is required to do: s.10 of the HCCA Act. The HCCC is empowered by s. 99B(1)(d)(i) of the HCCA Act to disclose information to regulatory bodies such as the respondent.
The applicant submitted that the respondent did not obtain the documents as 'co-regulator' or in its exercise of any function under the HCCA Act. Section 12 of the HCCA Act requires the HCCC to consult the relevant professional council - in this case the respondent - before making a decision about how to deal with a complaint. I accept that the respondent, with the HCCC, exercises a function under the HCCC Act in relation to matters concerning the health and performance of a practitioner: ss. 13 - 15 of the HCCC Act.
I have examined documents 39, 63, 64, and 65. Document 39 appears to have been provided to the respondent by the HCCC as part of the respondent's exercise of functions under the HCCC Act. The balance, all of which post-date the finalisation of the complaint, nonetheless, appear to be correspondence between the respondent's legal officers and officers of the HCCC relating to the investigation of and handling of the applicant's complaint.
As such, s. 99A(1) of the HCCC Act prohibits their disclosure. It follows that cl.1 of Sch.1 to the Act provides for a conclusive presumption against disclosing those documents.

Considerations under clauses cl.3(a) and (b) and cl.4(d) of the Table

In Commissioner of Police v Camilleri [2012] NSWADTAP 19 ('Camilleri') the Appeal Panel considered that s.14 considerations, other than those in respect of which there is a conclusive presumption of an overriding public interest against disclosure, need to be examined at a broad operational level and that those considerations "are concerned with systemic features of the operation of government": at [26].
To raise these as relevant considerations in the application of the public interest test the respondent must establish that the disclosure of the information "... could reasonably be expected to have .... the effect" outlined in the Table.

The principles for the interpretation of "could reasonably be expected" were discussed in Flack v Commissioner of Police [2011] NSWADT 286 (at [40] - [41]), ('Flack'), adopting the approach taken in Leech v Sydney Water Corporation [2010] NSWADT 298:
The term 'could reasonably be expected' has been considered in a number of cases. The words have their ordinary meaning: Searle Australia Pty Ltd v PIAC (1992) 108 ALR 163. The test to be applied is an objective one, approached from the view point of the reasonable decision-maker: Neary v State Rail Authority. Something which could reasonably be expected is something which is more than a mere possibility, risk or a chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived: Searle Australia Pty Ltd v PIAC.

disclosure of the information could reasonably be expected to reveal an individual's personal information: cl.3(a) of the Table: Documents 3, 30, 46, 48

disclosure of the information could reasonably be expected to contravene an information protection principle under the Privacy and Personal Information Protection Act 1998: cl. 3(b) of the Table: Documents 6, 13, 41, 68, 113, 134

There is some overlap in the considerations of clauses 3(a) and 3(b) of the Table.
Clause 3(a) of the Table provides that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to "reveal an individual's personal information".
The term "personal information" means:
information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion.
The Tribunal may have regard to the personal factors set out in s. 55(1) of the Act for the purposes of considering the public interest considerations against disclosure, relevantly, in 3(a) of the Table.
Included in the documents are the resumes of a number of health professionals, who, according to Ms St Hill, were either members of the Inquiry or who gave evidence at the Medical Tribunal proceedings:s.55(1)(a) of the GIPA Act.. Other than as discussed at [20] above, it was difficult to identify the applicant's motive in respect of this information: s.55(1)(b) or factors particular to her: s.55(1)(c).
On examination of the documents, some of the resumes contain the personal contact details (address, mobile or home phone number or personal email address) for the health professionals. Document 46 also includes the name and personal contact details for people are listed as referees.
The respondent submitted, in relation to cl.3(b) of the Table, that disclosure of the personal information would contravene the information protection principle under s.18 PPIP Act which provides:
(1) A public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body, whether or not such other person or body is a public sector agency, unless:
(a)the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or
(b)the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body, or
(c)the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious or imminent threat to the life or health of the individual concerned or another person.
Personal information has the same meaning under the PPIP Act in the Act.
The information privacy principle contained in s.18(1) of the PPIP Act is concerned with an agency giving an individual's personal information to a person or body outside the agency: NZ v Department of Housing [2005] NSWADT 58.
Further, as the respondent submitted, the exceptions provided for in s.18(1) of the PPIP Act are not applicable to the circumstances in this case. Section 18(1)(a) and (b) of the PPIP Act provide that personal information may be disclosed if it relates to the purpose for which it is collected and the agency has no reason to believe that the individuals concerned would object to the disclosure.
The respondent informed the Tribunal that Dr Gerard Barold (document 3), Dr Jan Lesley Walker (document 30), Dr Saw Hooi Toh (document 46) do not object to the resumes being disclosed if they are redacted so as to exclude personal contact details.
On examination of the documents, I consider the personal contact details (address, mobile or home phone number or personal email address) for those doctors and the name and personal contact details for people are listed as referees, to be personal information about these individuals and consider that there is a public interest in protecting these personal details from disclosure.
Document 48 is the resume of Dr Alison Reid, who, I was informed, objects to her resume being disclosed. Ms St Hill noted that it appears that a complete copy of Dr Reid's resume has already been disclosed to the applicant as part of dealing with the applicant's informal application under s. 9 of the Act.
It is helpful to recall that the definitions of 'government information', 'personal information', and 'reveal' in the Act operate with respect to information alone, not, as was the case under the Freedom of Information Act 1989, with respect to documents. If information in a record has already been disclosed, it cannot then be "revealed", as defined in cl.1 of Schedule 4 GIPA Act, by giving access under the GIPA Act: Nature Conservation Council of NSW v Department of Trade and Investment, Regional Infrastructure and Services [2012] NSWADT 195 at [174] cf Retain Beacon Hill High School Committee Inc v Landcom [2006] NSWADT 108 at [10] under the FOI Act.
As the information in Dr Reid's resume has already been 'revealed' to the applicant, cl.3(a) and (b) cannot apply: Richards v Commissioner, Department of Corrective Services [2011] NSWADT 98.
Documents 36, 37, 38, 66, 67 contain A/Prof. Molodysky's response to a complaint made by the applicant about him. Ms St Hill noted that A/Prof. Molodysky has indicated that, while he does not consent to the disclosure of these documents, he is not prepared to oppose disclosure before the Tribunal. As such, the respondent submitted that the public interest favours disclosure and I agree that to be the case.

disclosure of the information could reasonably be expected to prejudice a person's legitimate business, commercial, professional or financial interests: cl.4(d) of the Table

Documents 6, 13, 41, 68, 113, 134 are Ms Fumess SC and Ms Richardson's invoices for their work as counsel.
The respondent conceded that it was appropriate to provide the applicant with the invoices with the exception of the hourly rates and information which would allow those hourly rates to be calculated. The respondent submitted that as barristers, Ms Fumess SC and Ms Richardson compete for work (both with other barristers and with other legal services providers such as solicitors); one basis on which they compete with other legal services providers is in the fees that they charge. Ms St Hill was also aware that they may also have different fee arrangements for different clients or different types of client, such as public sector agencies. If their hourly fee in relation to the work they performed for the respondent were to be known by providing the applicant with their invoices, it may allow other barristers to match their fees and so compete more effectively for work. In addition, disclosure of their hourly rates could prompt other of their clients to seek similar or more favourable fee arrangements.
I was referred to Neary v State Rail Authority [1999] NSWADT 107 at [40] and [41] where the Tribunal in the context of an identically worded provision in the FOI Act acknowledeged that barristers operate in a competitive and commercial environment and that one of the factors on which they compete is price. I accept that revealing the hourly rates charged by Ms Furness SC and Ms Richardson would allow other legal service providers to unfairly compete with them, or would allow other of their clients to attempt to negotiate a more competitive rate on the basis of the rates charged to the respondent.
Disclosure of the hourly rate information would therefore prejudice the legitimate business and commercial affairs of and Ms Furness SC and Ms Richardson, which is a public interest factor against disclosure.

Balancing the public interest considerations

The balancing function in this matter needs only to be undertaken in respect of the documents found to be properly the subject of a claim under cl.3(a) and (b) and cl.4(d) of the Table.
Because the respondent bears the onus of justifying its decision to refuse the applicant access to the information, it has the burden of establishing that the public interest considerations against disclosure it relies on apply. It also bears the burden of establishing that, on balance, they outweigh the public interest considerations in favour of disclosure.
The Tribunal's task is to determine whether there is an overriding public interest against disclosure of the information in accordance with the Act, paying due regard to the principles in s. 16 of the GIPA Act. This requires the Tribunal to consider whether, on balance, the public interest considerations against disclosure outweigh those in favour of disclosure: see Flack at [19] and Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [47]. Unless there is an overriding public interest against disclosure the presumption in favour of disclosure applies: s. 5 GIPA Act.
The GIPA Act does not provide a set formula for working out the weight of public interest considerations for or against disclosure, or deciding if one set of considerations outweighs the other. Each matter is different. The balancing of competing interests "is a question of fact and degree, requiring the weighing of competing matters, and is a task that is not amenable to mathematical calculation: Hurst v Wagga Wagga City Council: at [70].
The general consideration in favour in s.12 should be accorded significant weight, consistent with the object of the GIPA Act.
In respect of the personal information discussed above, it is difficult to identify what public interests might be advanced by disclosing the personal contact details of these individuals. The public interest in understanding the qualifications of those who sat on the Inquiry is satisfied by the disclosure of the balance of the resumes. Other than in relation to Dr Reid, it was unclear if the whole of the resumes may have previously been disclosed to the applicant. I consider that for the purposes of the present matter, I consider that there is no compelling public interest in favour of the unrestricted disclosure of private contact details, and find that there is an overriding public interest against disclosing these details in documents 3, 30, 46, 48.
I have found that there is a public interest factor against disclosure of the hourly rate of Ms Furness SC and Ms Richardson. On the other hand, in addition to the general public interest in favour of the disclosure of government documents, there is a public interest in the amount spent by agencies on legal services; the respondent submitted that that public interest is satisfied by the disclosure of the total amount of the invoices issued by the counsel. I accept that there is little in favour of release of counsels' hourly rates, while the economic harm to those counsel may be significant. In those circumstances, I accept that there is an overriding public interest against disclosing information as to their hourly rates and information which would allow those hourly rates to be calculated in documents 6, 13, 41, 68, 113, 134.

Are there reasonable grounds to believe that there are additional documents? If so, did the respondent undertake reasonable searches to find the documents?

The applicant provided a list of documents said to be missing from the response to her request. A decision that information is not held by an agency is reviewable by this Tribunal: s. 80(e).
The approach of the Information Commissioner of Queensland in Shepherd and Department of Housing, Local Government and Planning (1994) 1 QAR 464, as to what constitutes a sufficient search has been adopted by the Tribunal in a number of cases, in particular, in Hemeon v Commissioner of Police, New South Wales Police Service [2002] NSWADT 201, DQ v Commissioner of Police, New South Wales Police Service [2002] NSWADT 215; Patsalis v Commissioner of Police, New South Wales Police Service [2003] NSWADT 213; Chapman v Commissioner of Police, New South Wales Police [2004] NSWADT 35 at [14]; O'Hara v North Sydney Council [2005] NSWADT 100 at [11]; and, Curtin v Vice-Chancellor, University of New South Wales (No 2) [2006] NSWADT 56.
In Shepherd it was said at [19] that there were two questions for consideration:
(a) whether there are reasonable grounds to believe that the requested documents exist and are documents of the agency; and if so,
(b) whether the search efforts made by the agency to locate such documents have been reasonable in all the circumstances of a particular case.
The task before the Tribunal is not an easy one, but simply put, the Tribunal must come to a view whether there are reasonable grounds to believe there are some further documents relevant to the application and, if so, whether the respondent has tried reasonably hard to find them.
There is some overlap in these 2 questions, because, it is fair to say, if the respondent has already searched extensively for material answering a GIPA application, then logically the likelihood of there being additional documents reduces with each ensuing search.
In her statement of 20 July 2013 Ms St Hill also provided evidence of the types of files and folders in the respondent's records. The respondent, Ms St Hill wrote, maintains a paper filing system and any documents which are relevant to the respondent's business are printed and stored on the respondent's paper files. Prior to 1 July 2010, she wrote, an "MPO doctor file" (MPO file) was created for every medical practitioner in NSW. Since that time an MPO file is created when a matter concerning a particular medical practitioner is referred to the respondent. If the respondent becomes a party to a hearing (such as an appeal to the Medical Tribunal) a folder of the documents exchanged between the parties in that hearing will be maintained separately from the MPO file, and will be archived as an exhibits file. Individual staff members may on occasion decide to create files of documents that are an adjunct to the MPO file, such as a folder containing the respondent's copy of documents produced under subpoena if the copies are bulky and too awkward to keep on the MPO file.
Initially, Ms H had day-to-day carriage of the applicant's matter under Ms St Hill's supervision. Ms St Hill understood Ms H to have considered all the documents on the applicant's MPO file in responding to applicant's request for documents. (After these proceedings were commenced Ms St Hill transferred day-to-day carriage of the applicant's matter from Ms H to Ms Veselovsky, again, under her supervision). Ms St Hill's evidence was that, when the applicant first made an informal application for documents, Ms H processed the application and considered all documents on the applicant's MPO file fell within the scope of the applicant's application. When the applicant's formal GIPA application was received, no further searches were undertaken. She noted that Ms H, the legal officer with the conduct of the applicant's matters, did perform a search of her own emails. Ms St Hill also considered that it was reasonable of Ms H not to have asked other staff/members of the Council to search their own hard drives.
In late April 2012, Ms St Hill said, she became aware of documents in a folder relating to the Inquiry which had apparently not been considered as part of the applicant's formal request. These documents had been discovered when Ms Veselovsky, whilst separately undertaking a privacy review in response to the applicant's privacy complaint, asked Ms H about loose documents in the front of the folder (which related to the Inquiry) and emails between Ms H and one of the Inquiry delegates. It was clear to Ms St Hill that the remaining documents in this folder, other than the loose documents in the front of the folder, had already been considered in response to the applicant's request.
The applicant pointed to some minor inconsistency in relation to the timing of the location of the documents between information provided by Ms H to the Law Society and Ms St Hill's evidence - a matter of a few days. I do not find the inconsistency to be pertinent. In any event, I was informed, these documents have subsequently been released to the applicant.
At the planning meeting in this matter on 23 March 2012, the applicant complained that the documents provided to date were not in chronological order. The respondent undertook to provide a chronological copy. Ms St Hill's evidence was that in May 2012 the respondent instructed the Crown Solicitor to attend to organising that chronological copy. Her understanding was that, in the course of arranging the documents into chronological order, a graduate solicitor from the Crown Solicitor's Office identified that two pages had been missed from the documents which had been provided to the applicant. Ms St Hill believed these documents were not released to the applicant unintentionally, during the initial photocopying of her entire MPO file. She instructed the Crown Solicitor to release these documents to the applicant on the basis that they were intended to have been released to her, and these pages were included in the chronological copy provided to her.
On about 30 May 2012, Ms St Hill said she had a conversation with Ms H concerning some draft correspondence, in which she had noted documents filed in the Medical Tribunal had later been returned to the respondent by the Tribunal Registry and had been archived by the respondent without her knowledge. Based on this conversation Ms St Hill formed the opinion that additional documents may exist in folders which had not been previously been considered under the formal request. She asked Ms H to show her any files that may not have previously been considered. On briefly inspecting these files together (three "exhibits folders" in the Medical Tribunal proceedings), it became clear that there were some documents that may not have been included in the GIPA determination. The documents appeared to consist of miscellaneous emails, notes and aides memoires. She discussed with Ms Veselovsky the possibility of documents being relevant to the applicant's application but not being included in the determination. Ms Veselovsky undertook to conduct a search of the three "exhibits folders", to determine if there were any documents which had not been included in the formal GIPA determination. Exhibits Folder 1 consisted of documents filed by the applicant in Medical Tribunal. She understood Ms Veselovsky located no documents in addition to the documents previously filed by the applicant in the Medical Tribunal and which she believed the applicant, or her legal representative, already had copies. Exhibits Folder 2, consisted of Medical Tribunal Appeal documents in a working copy brief to Ms Furness SC. She understood Ms Veselovsky located a number of additional documents relevant to the applicant's GIPA application but were not included in the determination. Exhibits Folder 3, consisted of documents filed by respondent in the Medical Tribunal. Ms St Hill understood Ms Veselovsky located a number of additional documents relevant to the applicant's GIPA application but were not included in the determination.

Ms St Hill understood that on about 6 June 2012 Ms Veselovsky instructed a Legal Administrative Assistant, to match each of the additional documents with its identical copy on the applicant's MPO file and inform her of any documents which did not appear to match any document on the applicant's MPO file. On about 8 June 2012 Ms Veselovsky finalised a list of documents which did not match any documents on the applicant's MPO doctor file.
On about 26 July 2012 Ms St Hill recalled that there were three folders of subpoenaed documents in the Medical Tribunal proceedings. Ms St Hill could not ascertain from the file whether they had been considered in the GIPA request. She decided to review these folders, in the event that they had not been previously considered. After perusing these folders, she was satisfied that each document in these subpoena folders had already been considered as part of the applicant's GIPA request.
Ms St Hill said that the respondent has now reviewed all the documents held on the applicant's MPO file as well as documents in separate folders which record the documents considered by the Inquiry, the documents exchanged by the parties in the Medical Tribunal appeal, the archived folder of documents returned to the respondent by the Medical Tribunal, a copy of the brief provided to counsel for the Medical Tribunal appeal, and three folders containing copies of documents produced under subpoena to the Medical Tribunal at the request of the applicant's legal representatives. She believed the respondent did not hold any other paper files in relation to the applicant at the time of her formal GIPA application.

Electronic TRIM records system

The applicant submitted that the respondent should provide details from its TRIM system in relation to the creation and alteration of certain records.
Ms St Hill wrote that since about October 2008 the respondent's staff generate documents on the electronic TRIM records system. However any finalised documents that are generated and considered to be part of the respondent's record are printed and put on the relevant MPO file. Correspondence and documents received by the respondent will not necessarily be scanned and saved electronically in the TRIM file, but will be saved on the paper MPO file. The TRIM software system provides electronic support and is a tool in the records management of paper files.
While many agencies use TRIM as an electronic records keeping system to manage and store their documents, Ms St Hill's evidence was that the respondent does not use TRIM in this way; rather, TRIM is used only to generate documents and, once such documents are completed, they are printed out and put on the paper files. TRIM allows a user to know whether a file has been created and whether it has been archived. While documents are sometimes saved to TRIM, this is done in an ad hoc fashion. Consequently, any information held about a person on the TRIM system, will have been printed out and put on the paper file.
In summary, the respondent submitted that it has conducted reasonable searches for the information falling within the scope of the applicant's request. Ms St Hill provided evidence as to a number of searches done for documents. When additional documents were discovered, for the most part, were promptly disclosed to the applicant. Other documents, in respect of which the respondent claims exemption from disclosure, are dealt with in this decision. The respondent conceded that the process of searching has not been perfect. It set out why it is now of the view that all reasonable searches have been done. Even where the applicant has identified further documents which she says have not been provided to her in response to her application, given the extensive searches already conducted, it submitted it would be futile to order the respondent to conduct further searches.
In Camilleri v Commissioner of Police, NSW Police Force [2012] NSWADT 5 at [11] - [16] I reviewed past decisions of the Tribunal in relation to reasonable searches and noted the President had reviewed the law on this issue in Patsalis v Commissioner of Police, New South Wales Police Service [2003] NSWADT 213.
In Patsalis at [63], the President said that the standard of search which an agency is obliged to conduct is simply whether reasonable searches have occurred. The fact that there may be weaknesses in an agency's searches, or that there may be failures in its recordkeeping processes, did not necessarily lead to the conclusion that the search had not been reasonable, or sufficient, or adequate. In Patsalis, the documents to which the applicant sought access had existed but were subsequently lost. Numerous searches were conducted but failed to find them and, ultimately, his Honour concluded at [59] that 'it would be a waste of time to ask the agency to do any more searches'.
In Miriani v Commissioner of New South Wales Police [2005] NSWADT 187 at [30] the President considered the key factors in assessing whether a sufficient search had been carried out. There he said that these factors included, relevantly, the way the agency's recordkeeping system is organised and the ability to retrieve any documents that are the subject of the request, by reference to the identifiers supplied by the applicant or those that can be reasonably inferred by the agency from any other information supplied by the applicant. However, what constitutes a sufficient search will vary with the circumstances.
Section 53 requires the agency to use "the most efficient means reasonably available to the agency" when searching for records. It is not required to undertake a search that would "require an unreasonable and substantial diversion of the agency's resources."
From Ms St Hill's evidence I accept that the TRIM system, as it is utilised by the respondent, is set up in such a way that to search the system for all documents relating to the applicant in accordance with her request would only capture documents which had her surname in the title. If such a search were conducted, the records would then need to be considered so as to discard the records relating to any other person by that surname and to discard the records generated after the date of the application. I do not consider this submission to be of great weight. The same argument must logically apply to any search of a computer system, or for that matter even a paper system. Where an applicant has a surname that is relatively common, multiple irrelevant entries may be revealed. However presumably the respondent's system primarily relates to doctors. It is unlikely that there are an overly large number of doctors with her surname which would make such a search particularly onerous. Nor, in my view is it particularly onerous to sort and put aside documents that post-date the applicant's GIPA application.
However I accept that to cross-reference all remaining electronic (TRIM) documents with documents on the paper file to ascertain if there were any documents that had not already been considered as part of the GIPA application would, on Ms St Hill's evidence would take an estimated 20 hours. I also accept that if documents were to be found on TRIM, they are likely to be in the nature of draft, incomplete or inconsequential documents that did not warrant filing as part of the formal and definitive paper record.
Ms St Hill wrote that to undertake the review of the first 10 documents, from the 67 listed by the applicant took Ms Veselovsky 2 hours to complete. The result of those searches was that no further documents were found. Ms St Hill estimated that to conduct the same search for the remaining 57 documents would take another approximately 2 days of work. The respondent submitted that it would be an unreasonable and substantial diversion of the resources of the respondent to have to complete this task, given that it is likely to be of no utility.
In Cianfrano v Director General, Premier's Department [2006] NSWADT 137, the President indicated that, generally speaking, searches which would take more than 40 hours to conduct are likely to be unreasonable, even when they are required to be carried out by a central government agency such as the Premier's Department: at [61] and [64]. The respondent submitted that it is a small agency, and so cannot be expected to have the same resources devoted to processing GIPA applications as the Premier's Department might. Ms St Hill, in her statement said that the respondent uses the services of 6 lawyers, 2 legal co-ordinators and 3 legal administrative assistants: a limited number of staff with other duties.
In Cianfrano at [65], the Tribunal held that it must be satisfied that an agency's determination is a fully responsive one. By contrast, in Chu v Telstra Corporation Ltd [2005] FCA 1730 at [35], where Finn J said, with regard to s.24A of the Commonwealth FOI Act, that it was not meant to be a refuge for the disordered and the disorganised. The Commonwealth FOI Act however, requires an agency to take 'all reasonable steps' to locate a document before determining that it cannot be located or does not exist, and that, in my view, is a more rigorous test than that in the GIPA Act. I acknowledge that the respondent has already dedicated considerable time and resources to responding to the applicant's access application.
It is clear that the relationship between the applicant and the respondent has broken down. The applicant is deeply dissatisfied with the manner in which her application has been considered. I agree that the piecemeal supply of documents is disheartening and has caused the applicant to further lose confidence in the respondent. From what I could make out, she also has had a far from harmonious relationship with the respondent: see Curtin v Vice-Chancellor, University of New South Wales (No 2) [2006] NSWADT 56. The applicant claims that the respondent has not conducted an adequate search for documents. Her submission appears, in large part, based on her suspicions that Ms H has deliberately withheld documents in an attempt to thwart her access application and to cover up Ms H's own legal and administrative errors. The applicant also sought to identify particular documents which she thinks exist and which she says have not been provided to her by the respondent. However, it is not enough for an applicant to merely assert non-compliance by the respondent with its obligations under the GIPA Act on the basis of a general distrust of the agency: Cianfrano v Director General Department of Commerce and anor (No 2) [2006] NSWADT 195 at [69].
The respondent conceded that the process by which it located the information falling within the applicant's request was not perfect. The respondent submitted that its repeated searches have now located all documents that are likely to be held by it in relation to the applicant and I am reasonably satisfied that its determination is now a fully responsive one. I agree that to require the respondent to spend another 2 days conducting a search on TRIM, where it is unlikely that additional documents of any substance would be uncovered, would, in my view, be an unreasonable and substantial diversion of the respondent's resources.
In summary, I do not consider there to be reasonable grounds to believe that there are outstanding documents. Further, I am satisfied there are no further searches the respondent can reasonably undertake to attempt to locate any additional documents falling within the scope of the application.

DECISION

The decision under review is affirmed other than in relation to documents 3, 30 and 46 (the doctors' resumes) and documents 6, 13, 41, 68, 113 and 134 (counsels' invoices) which are to be released to the applicant redacted in accordance with these reasons.
For clarity, I direct that the respondent provide to the applicant, if it has not already done so, the following documents: document 36, 37, 38, 44, 45, 66, 67, 84, and 133, which it has indicated it proposes to release to the applicant.
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Case Title:	AIN and Medical Council of NSW
Medium Neutral Citation:	[2013] NSWADT 112
Hearing Date(s):	On the papers
Decision Date:	24 May 2013
Jurisdiction:	General Division
Before:	Naida Isenberg, Judicial member
Decision:	The decision under review is affirmed other than in relation to documents 3, 30 and 46 (the doctors' resumes) and documents 6, 13, 41, 68, 113 and 134 (counsels' invoices) which are to be released to the applicant redacted in accordance with these reasons.
Catchwords:	Government information - conclusive presumptions - legal professional privilege and Health Care Complaints Act 1993 - overriding public interest against disclosure of information - reasonable grounds to believe that there are additional documents - reasonable searches to find the documents
Legislation Cited:	Government Information (Public Access) Act 2009 Freedom of Information Act 1989 Privacy and Personal Information Protection Act 1998 Health Care Complaints Act 1993 Medical Practice Act 1992 Health Practitioner Regulation National Law (NSW) 2009 Public Sector Employment and Management Act 2002 Health Practitioner Regulation (New South Wales) Regulation 2010 Evidence Act 1995 Administrative Decisions Tribunal Act 1997
Cases Cited:	Commissioner of Police v Camilleri [2012] NSWADTAP 19
Category:	Principal judgment
Parties:	AIN (Applicant) Medical Council of NSW (Respondent)
Representation
- Solicitors:	AIN (Applicant in person) Crown Solicitors Office (Respondent)
File Number(s):	123052