AIN v Medical Council of New South Wales

[2015] NSWCATAD 66

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

AIN v Medical Council of New South Wales [2015] NSWCATAD 66

Hearing dates:

19 December 2014

Decision date:

14 April 2015

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

N Isenberg, Senior Member

Decision:

The decision under review is set aside.

ORDERS

1. Subject to s.14 of the GIPA Act, the Respondent provide the applicant with the material set out in the table in paragraph 9 of this decision.

2. In respect of document 64, the document is not properly the subject of a claim for an overriding public interest against disclosure, except as the following entries: 5 July 2010, 19 July 2010, 24 September 2010, 5 and 6 October 2010, 8 October 2010 (and note), and 14 October 2010 (and note), and is otherwise to be provided to the applicant.

3. In respect of document 112, having found it not to be properly the subject of a claim for an overriding public interest against disclosure, it is to be provided to the applicant.

4. No order as to costs.

Catchwords:

Access to government information – versions of documents – format of information provided – “legal professional privilege” – overriding public interest against disclosure

Legislation Cited:

Medical Practice Act 1992
Government Information (Public Access) Act 2009
Evidence Act 1955
Administrative Decisions Tribunal Act 1997

Cases Cited:

AIN v Medical Council of New South Wales [2013] NSWADT 112
Law v Wollondilly Shire Respondent [2013] NSWADT 203
Aquila Coal Pty Ltd v Bowen Central Coal Pty Ltd [2013] QSC 82
Sydney Airports Corp Ltd v Singapore Airlines Ltd [2005] NSWCA 47
General Manager, WorkCover Authority of NSW v Law Society of NSW (2006) 65 NSWLR 502
Fitzpatrick v NSW Office of Liquor and Gaming [2010] NSWADT 72
Waterford v The Commonwealth of Australia [1987] HCA 25
Grant v Downs [1976] HCA 63
New South Wales v Jackson (2007) NSWCA 279
Beadle v Director General of Social Security [1984] AATA 176
Obieta v Australian College of Professionals Pty Ltd [2014] NSWCATAP 38

Texts Cited:

AIN (Applicant)
Medical Council of New South Wales (Respondent)

Category:

Principal judgment

Parties:

AIN (Applicant)
Medical Council of New South Wales (Respondent)

Representation:

Counsel:
T Brennan (Applicant)

Solicitors:
AR Connelly and Company Lawyers (Applicant)
Crown Solicitor’s Office (Respondent)

File Number(s):

1330335

Publication restriction:

Section 64 (1) Civil and Administrative Tribunal Act 2013-Restriction on publication of information that will identify the applicant.

Judgment

Background

1. The applicant is a medical practitioner. For several years she was registered under the Medical Practice Act 1992 (MP Act) in the general category of registration, until, in 2008 the Respondent purported to implement a “Limited Prescribing and Referral" (LPR) category of registration, and the Applicant was then registered in that category. The Applicant objected. An Inquiry conducted in accordance with the MP Act imposed a number of conditions upon her registration. The Applicant appealed to the Medical Tribunal which, by consent, made orders including the imposition of conditions on the registration of the Applicant.

2. The Applicant then asked the Respondent to provide her with a copy of her file. While a number of hard copy documents were provided to her, she then asked the Respondent to provide access to other information pursuant to the Government Information (Public Access) Act 2009 (GIPA Act) which it held in her name. Following her application for review by this Tribunal, the Respondent released some further information. I heard that application for review, on the papers, and the decision - AIN v Medical Council of New South Wales [2013] NSWADT 112 – was published on 24 May 2013.

3. In April 2014 the Applicant commenced proceedings in the Court of Appeal to set aside the various decisions of the Respondent which had affected her, to which the Respondent consented.

The present application

4. By letter of 23 September 2013, the Applicant made a further request under the GIPA Act for:

All information contained in any document or metadata responsive to a search of the Medical Council’s TRIM database using the TRIM container (or Doctor identifier): [versions of the applicant’s doctor identifier number] with any other sub-fix.

I request that the information is provided in native electronic and readable paper format.

5. The Respondent did not process the application within the prescribed timeframe, and as a result, it was deemed to have refused the application by virtue of s.63 of the GIPA Act. It is the applicant’s request, and the deemed refusal, which is the subject of these proceedings.

6. On 17 March 2014 the Respondent provided a "Notice of Decision", in which it identified that there were approximately 2000 pages of records, responsive to the request, that were copies of information already provided to the Applicant in her previous GIPA request. In addition, 194 further records which had not been previously provided were identified. The Respondent decided to:

• provide access in full to some of those 194 records

• provide access with minor redactions in relation to personal information of others

• to refuse access on the basis of an overriding public interest against disclosure in others of those documents, namely legal professional privilege

7. Following extensive correspondence between the parties, and discussions at planning meetings of the Tribunal, further documents were identified. Also, as is discussed below, the applicant significantly narrowed her access application.

Scope of the application

8. The parties came to a final position as to what was outstanding and what to be considered by the Tribunal. The Applicant accepted that the Respondent had now completed undertaking reasonable searches in response to her request; no issue concerning adequacy of search arises for determination.

9. The applicant produced a complete list information she finally pressed. In each case a hard copy of the document, but without metadata, had already been produced to her:

Document	Description	Date	Versions and Metadata Requested
1.	Letter from Ms Harvey to Ms Egan	4/9/09	VI and 2
2.	Minutes of Registration Committee of Board	20/10/09	VI, 2 and Word properties
3.	File Note of Ms H	26/3/10	VI, 2, 3 and 4
4.	Notice of information to be recorded in the National Register	15/11/13	TRIM data and all versions
5.	Publication of Medical Tribunal Decision	26/5/11	V7 and 8
6.	Unsigned File Note	18/10/11	VI and 2
7.	Draft Board's Registration Committee Item	Undated	All versions
8.	Supplementary Agenda Item for Board's Registration Committee	20 October 2009	Word properties
9.	Chronology prepared by the Board for Schedule 1 Inquiry	Undated	VI, 2, 3, 4 and 5
10.	Draft conditions imposed by Medical Tribunal Order	19 October 2009	V3, 4, 5 and 6
11.	Letter from Ms Harvey to Applicant	11 November 2011	All versions and Word properties of last version
12.	Extract from Respondent's meeting minutes	6 December 2011	V2 and 3
13.	Letter from Respondent to Applicant	3 November 2006	Word Properties
14.	Letter from Ms Harvey to Dr Toh	11 January 2010	Word Properties
15.	Section 192 A Evidentiary Certificate	June 2010	VI, 2 and 3
16.	09/43817: Agenda Paper for Registration Committee in October 2009	12 November 2009	All versions, TRIM metadata and Word properties
17.	09/30620: Record	7 August 2009	All versions, TRIM
concerning July	metadata and Word
registration	properties
Committee

10. As I understand the request, the applicant seeks, effectively, the drafts of the documents she has already been provided with, and the various computer notations accompanying those earlier versions. The Respondent said for some time it had not understood that the applicant's request required the production of anything other than the final version of each document - and it had already provided copies to her. The Respondent contended that on a fair reading, the applicant’s request for “all information” in respect of documents would not, ordinarily, be understood to be a request for the wide range of information which the applicant in fact sought. It argued that if agencies were obliged to construe applications in that manner, to do so would require a substantial and unreasonable diversion of an agency's resources.

11. However it seemed to me, that reasonably early in the process the applicant made it clear that she was seeking earlier versions of the material which had already been provided, although not necessarily what she meant by ‘metadata’. The terms of the request should have at least alerted the Respondent that the applicant was seeking something different to what she had received in response to her earlier application.

12. Further, I do not accept the respondent’s contention that every GIPA application, made in the ordinary course, would require an agency to provide the earlier versions of documents and the metadata which this applicant seeks.

13. Fortunately the applicant’s claim was ultimately significantly narrowed.

14. Broadly speaking, I accept the explanation provided on behalf of the applicant about the operation of Word and the TRIM database, which I did not understand to be challenged:

• The Respondent’s documents and items of metadata were recorded and stored in electronic form. Only electronic records which are responsive to a search use the TRIM database.

• When a Word document stored within the Respondent's TRIM system is amended and saved, the amended version is saved as a separate "version" of the same TRIM document number, but that the original and each amended version of the Word document is saved and accessible through TRIM as a separate document.

• Annexure "B" to the Statement dated 1 August 2014 of Natalie Wong, a solicitor employed by the applicant’s former solicitors (at p20 and following) demonstrates many of the documents responsive to searches were in Word format.

• Word documents contain not only the text of the document, but a search in Word can show information concerning the creation, editing and printing of the document and can contain hidden text: Annexure "G" to Ms Wong’s statement at pages 54 and 56.

• When printing a Word document, an operator may choose whether to print only the text, or to also print the document properties and any hidden text: see Ms Wong’s statement at pages 54 to 57, which includes a printout of "printing options", which demonstrates that it was open to a user of Word, to choose options so that whenever a document identified as responsive to the request was printed out, the print out included the document's "properties", revisions and hidden text. If that choice had been made, each time a document was printed the printed version would have included any "properties", revisions and hidden text.

• The file listing at page 20 (and following) of Ms Wong’s statement shows that almost all of the remainder of the documents in question were held in an Adobe Acrobat format. Adobe Acrobat documents similarly contain information concerning their creation, editing and printing. When a person prints an Adobe Acrobat document, the person can select to print only the text, or the text together with mark-ups and stamps. The facility for doing so, involving a single drop down menu as part of the printing function is shown in the example at pages 33 to 45 of Ms Wong’s statement.

Format of the information

15. The Applicant requested access to the information in two forms: native electronic format and readable paper form. "Native electronic format", I was informed, is a term used in modern litigation practice, meaning the electronic format an electronic record originally exists as. For example, I understand, Word documents native format have the ".doc" extension.

16. The Respondent further submitted that it was entitled to decline to also provide access to copies of the documents in "native electronic format”, as doing so would interfere unreasonably with the operations of the Respondent, and result in the Respondent incurring unreasonable additional costs: see s.72(2)(a) of the GIPA Act. Ms Azad gave evidence that determining the applicant's application by the provision of hard copy documents had taken in excess of 40 hours. The Respondent rejected the applicant’s contention that the provision of access in electronic format would have involved less staff time and resources as each individual document would still need to be reviewed to determine whether there is an overriding public interest against disclosure.

17. The Respondent provided access to the information in one form only, that is, readable paper format. The Respondent submitted, and I agree, that it is only required to provide access in one form. I add an important proviso though: that the information provided - in whichever format - must be fully responsive to the access application.

18. It appears that, in the case of Word documents, the printouts provided by the Respondent did not contain information as to the documents properties or of any hidden text which constituted part of the electronic documents. Similarly, in the case of Adobe documents, the printouts originally provided contained no printout of mark ups or stamps which constituted part of the electronic documents. To that extent what the Respondent provided was not fully responsive to the request.

19. By way of illustration, my attention was invited by the applicant page 149 -152 of Exhibit A2 which appears to be a draft of one of the documents: the draft Inquiry Decision concerning the Applicant. It is indexed within TRIM as document 09/47155. The text pages 149 to 152 appears to be a template with no information personal to the Applicant.

20. Page 153 is a print out of the properties of that Word document; that is information contained within the native electronic format of the document. Page 153 discloses that the document was created on 3 December 2009 by a person who worked in the Respondent’s Legal Unit. Page 154 is the TRIM metadata for the document showing that it is revision 1 and showing its latest modification date was 3 December 2009.

21. In contrast the document at Exhibit A2 page 99 is a further Word document also indexed within TRIM as document 09/47155. There was substantial text inserted into the document specific to the Applicant and to the outcome of the Inquiry conducted with respect to the Applicant, the hearing for which occurred on 8 December 2009. At page 107 are the Word properties for that document. That page indicates that that particular Word document was last modified on 10 December 2009. At pages 108 to 111 is a print out of the TRIM metadata concerning that revision, which confirms that the revision was modified on 10 December 2009 and that it is revision number 7 stored within the TRIM system. The printout also includes at page 110 data on each earlier revision each of which is also stored within the TRIM system as a separate Word document. That page 110 enables a reader to determine that revisions 1 through to 6 were created before the conduct of the Inquiry on 8 December, and together with page 108 the page indicates that revision 7 is the first version of the document created after the conduct of the Inquiry.

22. I agree with the applicant’s submission that as each version of a Word document stored within TRIM is stored as a separate document with the same TRIM document number, each of those versions of each document was a document responsive to the Applicant's request.

23. Having found that what the Respondent provided was not fully responsive to the request, the applicant is entitled to be provided with the material set out in the table in paragraph 9 of this decision, subject to s.14 of the GIPA Act.

Diversion of resources

24. Section 60(1)(a) relevantly provides that an agency may refuse to deal with an access application if dealing with the application would require an unreasonable and substantial diversion of the agency's resources.

25. If the scope of the application had not been narrowed (from multiple versions of about 200 documents) the Respondent may have been entitled under s.60(1)(a) to decline to deal with the application. As Exhibit R2 makes clear, the Respondent’s initial assessment was that the request extended to some 2,800 versions of all the documents. By way of example, it noted that Document 09/47155, an 8 page document (when the most recent version is printed out using standard print options) would, in fact, require the provision of 7 revisions plus metadata contained in 54 pages. Similarly, document 09/47131, a single page document (when printed using standard print options) in its final form, would require the provision of 6 revisions plus metadata totalling 21 pages.

26. On 14 October 2014 the applicant narrowed the scope of the application to TRIM revisions of 36 records (approximately 165 TRIM revisions), Adobe/Word metadata of 24 records (including approximately 65 TRIM revisions) and TRIM metadata for all TRIM revisions of 1 TRIM record. Ms Azad in her statement of 19 November 2013 estimated that the processing of the request as so narrowed would take 24 to 34 hours.

27. The day before the hearing the Applicant further narrowed her request to one for revisions and metadata in respect of only 17 documents.

28. Ms Azad was cross-examined about the time that would be required to process the balance of the request, that is, to consider production of the information now pressed. Her clear evidence was that the exercise would be comfortably completed with the expenditure of no more than a total of 2 hours of staff time, including the whole of her time and all other staff who might be engaged conducting a review of each of the documents in question, making a decision and providing a decision in writing together with any further production required.

29. I am therefore not satisfied that dealing with the (narrowed) application is likely to require a substantial diversion of the Respondent’s resources. It follows that the s.60(1)(a) has not been made out.

DOCUMENTS WITHHELD DUE TO CLAIM OF LEGAL PROFESSIONAL PRIVILEGE (‘LPP’)

30. The applicant also pressed her claim for documents 64, 90, 107, 112, 115, and 169, withheld by the Respondent on the basis of LPP in its determination of 17 March 2014 and documents 28, 43, 49 and 50, withheld in the Respondent's supplementary determination of 24 March 2014. All documents were provided to the Tribunal on a confidential basis.

31. Section 14(1) of the GIPA Act provides that it is to be conclusively presumed that there is an overriding public interest against disclosure in respect of any of the government information described in Sch. 1 to the Act.

32. Schedule 1 item 5 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.

33. The Tribunal has long held that sections 118 and 119 of the Evidence Act 1955 are relevant to questions of LPP as an overriding public interest against disclosure in applications under the GIPA Act: see, for example, Law v Wollondilly Shire Respondent [2013] NSWADT 203.

34. Section 118 of the Evidence Act provides that privilege attaches to certain confidential communications relating to the provision of advice to a client as follows:

118 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.

35. LPP also attaches to communications related to the provision of legal services in respect of legal proceedings. Section 119 of the Evidence Act provides:

119 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 (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party."

36. The term "client" is relevantly defined in s. 117 of the Evidence Act as including:

(a) a person or body who engages a lawyer to provide legal services or who employs a lawyer (including under a contract of service),

...

(c) an employer of a lawyer if the employer is:

(i) the Commonwealth or a State or Territory, or

(ii) a body established by a law of the Commonwealth or a State or Territory,

...

37. Where the documents were created by Ms H, an in-house lawyer working in the Respondent's Legal Unit, the Applicant took no issue that Ms H is a lawyer within the meaning of s.117 of the Evidence Act, and that the officers of the Respondent who instructed her, were her client. Ms H was the action officer with carriage of the Applicant's Inquiry and Medical Tribunal appeals and in dealing with various inquiries and complaints made by the Applicant to the Respondent following the Medical Tribunal appeals, including about Ms H herself.

38. The Respondent provided detailed submissions about its structure. Suffice to say that the Respondent does not employ any staff of its own and that at the relevant times, all Respondent’s legal staff were employed by the Health Professional Council Authority. In AIN v Medical Respondent of NSW, I accepted that this relationship meets the definition set out at s.117(1)(c) of the Evidence Act.

39. Aquila Coal Pty Ltd v Bowen Central Coal Pty Ltd [2013] QSC 82 (Aquila) discussed the question of whether LPP applies to the communications of an in-house lawyer. In coming to his decision in Aquila, Boddice J explained the requirement of independence for an in-house lawyer at [8]:

Where the legal advisers are employees of the party to the litigation, legal professional privilege may still attach, provided the claim relates to a qualified lawyer acting in the capacity of an independent professional legal adviser. Independence is crucial, as an important feature of in-house lawyers is that at some point the chain of authority will result in a person who is not a lawyer holding authority, directly or indirectly, over the in-house lawyer. The relevant question for consideration is whether the advice given is, in truth, independent.

40. One factor to consider is whether the persons giving the advice hold a practising certificate: Commonwealth v Vance [2005] ACTCA 35 at [20] and [30]. A practising certificate, while not essential, is indicative of the fact that a person is giving independent legal advice. Ms Azad said, in her statement, that all the Respondent’s legal officers hold current practicing certificates.

41. “Legal advice” 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; [2006] NSWCA 84 at [74]. Crucially, the record in question must be prepared for the dominant purpose of providing legal advice.

42. I agree with the summary of the relevant principles in relation to ascertaining the dominant purpose of a confidential communication by Molony JM in Fitzpatrick v NSW Office of Liquor and Gaming [2010] NSWADT 72 (at [70]):

A 'dominant purpose’ is one that predominates over other purposes; it is the prevailing or paramount purpose: FCT v Pratt Holdings at 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].

43. The purpose for which a document is created is a question of fact: Waterford v The Commonwealth of Australia [1987] HCA 25; (1987) 163 CLR 54 at 66, to be determined objectively and from circumstances that existed at the time the document was created: Grant v Downs [1976] HCA 63; (1976) 135 CLR 674 at 682. The subjective purpose of the author, or those who requested the preparation of the document will be informative, but not determinative. The onus is on the party claiming LPP to show that the document is privileged by pointing to the nature of the document itself or by evidence describing the circumstances in which the document was brought into existence: see Grant v Downs at 689.

44. 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.

45. In applying that extra level of scrutiny one factor is whether instructions were given to Ms H by any person within the Respondent. While I accept the applicant’s submission that a lawyer acts upon instructions, it is not necessarily the case that every piece of “advice” can only be given in response to a direct request for advice.

46. The content and purpose of most of the documents is largely evident on their face. The Respondent, in addition, relied on the evidence of Ms Azad, the Respondent’s A/Director of Legal Services, about the purpose of each document, although she was not the author of any of the documents in question. I have taken into account her views as to the context of the communications, as she was said to have oversight over the preparation of legal advice and the provision of legal services to the Respondent, but I have formed my own view, especially taking into account the content of the documents themselves.

47. Ms Azad 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, in particular where formal inquiries are being conducted. I accept that there will be times when a lawyer's advice will be mingled with administrative or policy matters: WorkCover v Law Society [77]. The test remains whether the dominant purpose of the record is to provide independent legal advice or services to the client.

48. The in-house lawyers’ communications concerning the applicant, were said to be dominated by the need to provide the Respondent with legal advice and that "but for" the requirement for that legal advice and oversight, those communications would not have been made. I do not think this accurately describes the test to be applied, because, as the submission is couched, every lawyers’ document would be subject to LPP. This is not the case, and each document must be separately assessed.

49. In relation to its external lawyers, in this case barristers and the Crown Solicitor, there was no issue that the Respondent is a client of those lawyers: s.117(1)(a) Evidence Act. I accept that, generally, as that advice was provided by independent legal advisers, it was for the dominant purpose of providing the Respondent with legal advice.

50. Each document was considered in turn.

51. The applicant’s submissions in respect of many of the documents referred to a failure by the Respondent to demonstrate that the document had been communicated to anyone in the Respondent. A plain reading of s.118 and s.119 of the Evidence Act does not make this requirement.

Documents withheld under determination of 17 March 2014

Document 64

52. The Respondent's Schedule initially described the document as: "File note dated 12 November 2010 prepared by [Ms H] re Medical Tribunal proceedings", but conceded this was incorrect and that it was prepared by Mr Tadross, who, although admitted as a legal practitioner, was the Respondent’s Executive Officer, and was not performing a legal role.

53. Ms Azad gave evidence that the document is a file note setting out the chronology relevant to Medical Tribunal proceedings and that it appears to have been drafted for the purpose of Ms H representing the Respondent before the Medical Tribunal. Contrary to the Respondent’s submission, clearly this cannot be the case - the Medical Tribunal proceeding concluded in October 2010, but the document was not created until November 2010, by which time there was no Medical Tribunal proceeding then on foot. There was no evidence of any other proceedings. Nor, on the face of the document, was the dominant purpose for providing the Respondent with legal advice; for the most part, it is a mere chronology.

54. It does, however, from page 3 onwards, refer to some confidential communications between the Respondent’s officers and external lawyers (in particular, counsel). I accept that those communications were for the purpose of the Respondent being provided legal advice, and for the provision of legal services to the Respondent. The fact that the proceedings had concluded does not mean that the references to communications which referred to proceedings previously on foot were no longer properly the subject of a claim for LPP. If that were the case, then at the conclusion of every piece of litigation a disaffected party could, at that stage, seek access to all of the other party’s material which, in the course of the litigation, would properly have been the subject of a claim for LPP. Clearly that would be a nonsense.

55. As a result, I find that the following entries in the document are properly the subject of a claim for LPP: 5 July 2010, 19 July 2010, 24 September 2010, 5 and 6 October 2010, 8 October 2010 (and note), and 14 October 2010 (and note).

Document 90

56. The document, on its face is a draft dated 4 November 201, in response to letters sent by the applicant on 23 and 24 October 2011 to the Respondent’s Chairman. The TRIM descriptor also referred to it being a response to the applicant’s submissions about publication to the Respondent’s Chairman.

57. Ms Azad’s evidence was that draft letter regarded “various issues, including the Medical Tribunal appeal”.

58. Ms H, it appears, was responding to the applicant’s correspondence to the Chairman of the Respondent; it is reasonable to assume that she did so at his request. It was unclear if the final letter was sent to the applicant. In any event, the letter may not reflect Ms H’s final view on a legal issue and, more importantly, might not reflect her client's instructions.

59. The applicant referred me Exhibit A2 page 368 - the Respondent's instructions to its staff on creating documents within TRIM: that the person who creates the document also creates the title of the document within TRIM at the time the document is created and the instruction is to choose a title which is "meaningful". It was submitted that it follows that the title in TRIM constitutes contemporaneous evidence of what the author thought was the purpose of the document. In my view the TRIM file name of the document is consistent with the purpose of the document being to respond to the applicant’s complaint about the Respondent’s breach of the non-publication order of the Medical Tribunal's reasons.

60. The document is properly the subject of a claim for LPP.

Document 107

61. The document, created on 30 November 2011 by Ms H, contains notes on a chronology provided by the applicant to the Respondent. The Respondent relied on s.118(a) of the Evidence Act in claiming LPP. In her Statement of 6 June 2014 (at [48]) Ms Azad wrote that Ms H received the applicant's complaint about her conduct on 21 November 2011. Ms H was initially provided with advice by senior counsel, and later the HPCA instructed the Crown Solicitor to act in relation to the complaint.

62. The applicant submitted that it was created at a time where no proceedings were contemplated or pending. It is necessary for the application of s.119 that, at the time the document was prepared, there was a real prospect of litigation, as distinct from a mere possibility: New South Wales v Jackson (2007) NSWCA 279 at [69]. The allegation that Ms H or her staff had breached the non-publication order of the Medical Tribunal was a serious allegation for which the Respondent may have considered that it would be found to be vicariously liable. That the note addresses matters Ms H regarded as “in contention”, clearly foreshadows the prospect of litigation.

63. Ms Azad gave evidence that this was drafted by Ms H for the dominant purpose of advising the Respondent regarding matters put to the Respondent by the applicant. These notes cover a variety of issues, including the Medical Tribunal proceedings and the Inquiry. While it is not immediately apparent on the face of the document, the Respondent submitted that the document appears to relate to issues raised by the applicant in a complaint concerning Ms H’s professional conduct. This does not, however, preclude its characterisation as a document over which LPP may be claimed.

64. Further, In AIN v Medical Council of NSW I found (at [55]) 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 accepted, in that situation, that the respondent was properly regarded as the client when the external lawyers were engaged to provide advice.

65. The document appears to be have been prepared by Ms H in response to the applicant’s complaint, a matter with respect to which both she and the respondent received legal advice. It would appear, on its face, to be a document prepared for the dominant purpose of the receipt of such advice, and consequently is properly the subject of a claim for LPP.

Document 112

66. The schedule of documents described the document as:

Respondent's table of registration status descriptors and chronology, 15 November 2011

67. TRIM indicates that this document was created by Ms H. At the top of the document is the heading: “This document is subject to LPP”. However, merely labelling a document in this fashion does not, of itself, afford the characterisation of the document as one properly the subject of a claim for LPP.

68. The Respondent submitted that on the face of the document, it is reasonably clear that it was created for the dominant purpose of allowing the Respondent to consider issues raised by the applicant in respect of her registration status. Ms Azad gave evidence to the effect that it appears to have been created for the purpose of allowing the Respondent to keep abreast of the applicant's ongoing, and contemplated, legal matters and to address the matters raised by the application with respect to her registration. Neither of these explanations, it seemed to me, accurately reflect the contents of the document; it appears, as is described, to be a chronological table of the applicant’s registration status descriptors. It does not appear to provide legal advice. I do not accept that the dominant purpose of the document was to provide legal advice. I therefore do not think a claim for LPP is properly made out in relation to this document.

Document 115

69. The document is titled, "[The applicant]: Notes to assist Respondent in file management - Issues raised by [the applicant] as at 1 November 2011". It is headed, "Internal working document”. Its author was Ms H. The Respondent relied on sections 118(a) and 119 in claiming LPP.

70. The applicant submitted that there is no evidence that Ms H was instructed by any person on the questions dealt with in the note and that I should conclude that Ms H's purpose in creating the document was reflected in the title she chose for it. It is also consistent with the status which Ms H ascribed to the document when creating it: Internal working document.

71. The document sets out extracts from the applicant's letter to the Respondent of 21 October 2011 in which she complained of various issues related to the Respondent's publication of the Medical Tribunal's decision. In another column it sets out what appears to be draft responses that the Respondent might wish to make to the applicant. I accept that the document was prepared for the dominant purpose of providing legal advice to the Respondent as to appropriate response to the applicant’s complaints. Consequently the claim for LPP is made out.

Document 168

72. Document 168 is a list of all recipients of the Respondent's "notification of hearing or decision" in the Inquiry and Medical Tribunal's hearings.

73. There is no evidence as to the author of the document, but it was said to have been prepared by the Respondent at the applicant's request, in contemplation that it could form part of the basis of a settlement between the parties at an "holistic mediation" between the parties. It was created for the purposes of mediation of several legal proceedings and contemplated legal proceedings. The Respondent relied on s 119 of the Evidence Act in claiming LPP over this record.

74. In addition the Respondent relied on mediation privilege, as formerly codified in s.107(4)(b) of the Administrative Decisions Tribunal Act 1997 (ADT Act) which relevantly provides:

A document prepared for the purposes of, or in the course of, or as a result of, a mediation session or mutual evaluation session, or any copy of such a document, is not admissible in evidence in any proceedings before any Court, Tribunal or Body.

75. It is unclear whether, if that provision were engaged, it would result in the conclusive presumption that there was an overriding public interest against disclosure of the information; item 5 of Sch 1 of the GIPA Act refers only to LPP, and not to ‘mediation privilege’. However, I am prepared to accept that the document was likely to have been created in anticipation of further litigation because it referred to “holistic mediation”, suggesting it was created for use in circumstances where litigation, reasonably foreshadowed, was to be forestalled.

76. It was submitted on the applicant’s behalf that the evidence does not establish that s.107(4) applies. However, I accept the evidence that it was prepared for the purpose of forming part of the basis of settlement negotiations, and that although an conclusive presumption of an overriding public interest against disclosure does not apply, I have balanced the relative interests for and against disclosure, and because of very significant weight I consider should be attached to a document prepared for the purposes of settlement negotiations, find that there is an overriding public interest against disclosure.

Documents withheld under supplementary determination of 27 October 2014

77. The respondent submitted that it is clear from the face of these documents that they are properly subject to a LPP claim.

78. Document 28 is a file note dated 30 March 2012, authored by Ms Azad, recording the terms of a conversation she had with Ms Stenning of the Crown Solicitor's Office regarding legal proceedings involving the applicant. I accept the Respondent’s submission that it is clearly, on its face, a confidential communication between Ms Azad, and Ms Stenning, solicitor employed by the Crown Solicitor, for the dominant purpose of the lawyer providing legal services to the client relating to proceedings to which the Respondent was a party.

77. Document 43 is a file note dated 30 August 2012, authored by Ms Azad, recording the terms of a conversation she had with Mr Baril of the Crown Solicitor's Office regarding various legal proceedings involving the applicant. I accept that, the document is a confidential communication over which LPP is properly claimed.

78. Documents 49 and 50 are the same file note dated 29 August 2012, apparently having been saved to two different folders relating to legal proceedings involving the applicant. It was authored by Ms Azad, and I accept the Respondent’s characterisation of the document as recording Ms Azad’s communications with Iain Martin, Assistant Director – Legal, of the HPCA, and his account of communications with Ms Morris and Mr Baril of the Crown Solicitors Office, regarding anticipated legal proceedings involving the applicant. Further, I accept that the document, on its face, a confidential communication over which LPP may be claimed.

COSTS

81. Each party made extensive submissions in relation to costs – each seeking an order against the other.

82. The power to award costs is conferred by s.60 of the Civil and Administrative Tribunal Act 2013 (CAT Act) which relevantly provides:

(1)   Each party to proceedings in the Tribunal is to pay the party's own costs.

(2)   The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs.

(3)   In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following:

(a)   whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings,

(b)   whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings,

(c)   the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law,

(d)   the nature and complexity of the proceedings,

(e)   whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance,

(f)   whether a party has refused or failed to comply with the duty imposed by section 36 (3),

(g)   any other matter that the Tribunal considers relevant.

…

83. The default position, as set out in s. 60(1) of the CAT Act, is that each party to proceedings before the Tribunal is to pay their own costs. The exception to this rule is where the Tribunal is satisfied that there are "special circumstances" warranting an award of costs, particularly having regard to circumstances set out in s.60(3).

84. Section 60 of the CAT Act is similar to s.88 of the ADT Act and decisions made under the previous legislation were relevant in determining matters in respect to s.60 of the CAT Act. The purpose of cost orders are to help ensure that parties conduct their cases in such a way that costs are not unnecessarily incurred or forced on others - see Hendrickson v Yarra Bay 16 ft Skiff Sailing Club Ltd (No 2) [2011] NSWADT 204. In my view s.60 anticipates some degree of recalcitrance by the party against whom the costs order is sought.

85. The matter has had a long and unfortunate history; relations between the parties are strained. I conducted multiple planning meetings at which I sought to narrow the issues between the parties. It seemed to me that the parties became entrenched in their respective positions and effective communication was elusive. The broader history between the parties also did not, it seemed to me, encourage co-operation. The parties engaged in extensive correspondence but it was only immediately before the hearing that the issues finally crystallized. The parties helpfully filed final submissions which superseded the multiple versions of submissions each had previously filed. Those final submissions were extensive, but were also indicative, it seemed to me, of a relationship which had seriously deteriorated on both sides.

Are there special circumstances warranting an application for costs in either party’s favour: application of s. 60(3) factors

86. Section 60(3) provides that the Tribunal may have regard to a non-exhaustive list of factors in reaching a view about whether there are ‘special circumstances’, a term used in a number of jurisdictions eg in the social security law regarding the exercise of a discretion: see Beadle v Director General of Social Security [1984] AATA 176, where the Administrative Appeals Tribunal considered that if something unfair, unintended or unjust had occurred which was out of the ordinary, this might constitute special circumstances justifying the exercise of the discretion. Most recently the Appeal Panel in Obieta v Australian College of Professionals Pty Ltd [2014] NSWCATAP 38 considered that “special circumstances” in respect of costs in s.60, included the persistent prosecution of a weak and unsuccessful case through an appellate process.

87. The Tribunal's records show that the Applicant has only been represented by solicitors in this matter since 24 June 2014. It was submitted on her behalf, that, nonetheless, I should take into account that she may have incurred costs on legal advice on the conduct of the proceedings before that date. I do not accept that this is appropriate characterization of the costs rule. Consequently, I have only taken into account, with respect to the applicant, costs which she may have incurred since 24 June 2014.

88. The Respondent submitted that there are special circumstances that would warrant an order that the applicant pay its costs from 30 June 2014 and claimed it had made all efforts to respond to the applicant's request, addressed her concerns and queries, provided additional material, and attempted to narrow the scope of issues before the Tribunal. Notwithstanding these efforts, it claimed, the applicant continued to agitate issues as to adequacy of search and production, and to make serious allegations against the Respondent and its legal representatives, necessitating the preparation of further evidence and extensive submissions as well as a full day of hearing before the Tribunal.

Whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings

89. The applicant submitted that the Respondent did not responded reasonably to her request within the appropriate time specified in the GIPA Act. There was no dispute that the Respondent had not provided its response on time. To that extent there was technically some disadvantage to the applicant, but I do not think this was of great consequence as a formal decision was provided and further material was identified. The Respondent also rejected any contention that its solicitors’ conduct was false and misleading. There was no evidence that the Respondent acted other than in good faith in responding to the application, especially in circumstances where, over a long period of time, it sought clarification from the applicant as to what she was seeking.

90. The locating of documents by the Respondent was reasonable, albeit somewhat piecemeal. It was broadly responsive to the application as it understood what the applicant sought. When the applicant's concerns were articulated by her new legal representatives, the Respondent responded by undertaking further searches, and producing a supplementary determination without any intervention or direction from the Tribunal.

Whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings.

91. The decision of March 2014 purported to address the entirety of the documents sought. A supplementary decision was required in October 2014. Any delay in bringing the matter to hearing was a product, it seemed to me, of attempts to clarify the issues and to locate further documents.

The relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law

92. The applicant submitted that Respondent's position that production of hard copy documents without printing out properties, hidden text or other metadata contained within the electronic documents and readily printed with the balance of the electronic document was untenable. I do not agree because for a considerable period the Respondent did not understand what the applicant sought. Further, the findings overall in this decision do not wholly favour the applicant.

93. Having regard to my findings in relation to the ‘table’ documents I also reject the Respondent’s submission that the applicant’s position was untenable.

The nature and complexity of the proceedings

94. Both parties agreed that the proceedings should have been a relatively straightforward GIPA review.

95. I reject the applicant’s contention that the complexity of the proceedings was created solely by the untenable claims made by the Respondent. I accept that the respondent made efforts to reduce the scope of issues in dispute and thus minimise the complexity of these proceedings.

96. The applicant made a number of serious allegations regarding the conduct of the Respondent and its legal representatives in describing the searches that had been undertaken, but I accept that the Respondent’s searches were undertaken in good faith.

Other conduct relied on to support an application for costs

97. I accept that as well as providing the applicant with another copy of approximately 2,000 pages previously provided in a previous GIPA access application another 194 documents, totalling 500 pages, were provided to her. Each was considered by Ms Azad in order to determine whether there was an overriding public interest against disclosure. However better communication between the parties may have resulted in a more fruitful use of resources.

98. Overall, I do not find that either party has made a case for special circumstances in relation to costs, such that the normal rule, that each party pay its own costs, should not apply.

DECISION

99. The decision under review is set aside.

ORDERS

1. Subject to s.14 of the GIPA Act, the Respondent provide the applicant with the material set out in the table in paragraph 9 of this decision.

2. In respect of document 64, the document is not properly the subject of a claim for an overriding public interest against disclosure, except as the following entries: 5 July 2010, 19 July 2010, 24 September 2010, 5 and 6 October 2010, 8 October 2010 (and note), and 14 October 2010 (and note), and is otherwise to be provided to the applicant.

3. In respect of document 112, having found it not to be properly the subject of a claim for an overriding public interest against disclosure, it is to be provided to the applicant.

4. No order as to costs.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Amendments

27 May 2015 - Typo error in Order 3. 'document 115' is amended to 'document 112'

Decision last updated: 27 May 2015