Allianz Australia Insurance Limited v Hakim
[2024] NSWPIC 65
•16 January 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Allianz Australia Insurance Limited v Hakim [2024] NSWPIC 65 |
| CLAIMANT: | Roni Hakim |
| INSURER: | Allianz |
| MEMBER: | Ray Plibersek |
DATE OF DECISION: | 16 January 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Dispute about whether a claim for legal professional privilege can be made for documents produced in answer to a Direction for Production addressed to the claimant’s accountants; should the Commission apply the evidentiary rules about legal professional privilege; section 43 of the Personal Injury Commission Act 2020 provides that the Commission is not bound by the rules of evidence and may inform itself as it thinks appropriate; Held – the Commission is not bound by the rules of evidence but can use those rules as a guide; in proceedings before the Commission legal professional privilege is available to prevent the disclosure of confidential documents if it can be established that the advice was prepared for the dominant purpose of the lawyer providing legal advice to a claimant; the claimant may decline to answer questions or to supply documents to the Commission if the subject matter relates to communications with a legal adviser which were made for the dominant purpose of obtaining or giving legal advice or for the dominant purpose of current or reasonably anticipated legal proceedings; section 118 of the Evidence Act 1995 which provides that evidence disclosing legal advice is not to be adduced in the circumstances specified applied; seven out of the eight documents for which privilege was claimed are prevented from disclosure by the claim for legal professional privilege and are not to be shared or produced to the insurer. |
INTERIM DETERMINATION
INTRODUCTION
On 2 January 2017 Roni Hakim, the claimant, was a front seat passenger in a vehicle being driven on Ridgecrop Drive, Glenhaven. The vehicle left the roadway and collided with a power pole and the vehicle caught fire. The insurer admits liability in this case.
The dispute presently before me is about whether eight documents produced in answer to a Direction for Production addressed to the claimant’s accountants are amenable to a claim for legal professional privilege and whether or not the evidentiary rules about legal professional privilege should be followed by the Personal Injury Commission (Commission) in this case.
Before considering the issue of legal professional privilege I will first briefly refer to the background of the matter.
The matter commenced as an application by the insurer for a special assessment pursuant to sub-section 96(1)(g) of the Motor Accidents Compensation Act 1999 (the MAC Act).
In written submissions dated 25 February 2022 the insurer submitted that the claimant had failed to provide all relevant particulars about the claim pursuant to s 85A of the MAC Act. In its submissions the insurer wrote that it had requested a number of particulars and authorities from the claimant which had not been provided.
Because of the alleged failure of the claimant to provide particulars and authorities the insurer sought a special assessment alleging that the claimant had failed without reasonable excuse to comply with the requests made of him under s 85A of the MAC Act.
During 2022 and 2023 there were a number of teleconferences with the parties and a number of directions including directions for production were issued by the Commission.
At the request of the claimant a Direction for Production dated 27 June 2022 was issued by the Commission. This Direction for Production was addressed to the claimant’s accountants Onyx Partners.
On 9 May 2023, after significant delay and failure to produce the required documents, Onyx Partners produced a number of documents purporting to comply with the Direction for Production. In summary terms, the documents produced by Onyx Partners concerned taxation returns, tax documents and financial records relating to Roni Hakim and his company Platinum Star Constructions Pty Ltd (ACN 600 361 251) for the financial years 2014 to date.
In an email from the Commission to the claimant’s solicitor dated 10 May 2023, the Commission acknowledged that the following documents were produced on 9 May 2023 by Onyx Partners:
“1. Roni Hakim 2016 Tax.pdf
2. Platinum Star Pty Ltd & Roni Hakim.pdf
3. Platinum Star Financial Statements.pdf
4. Roni Hakim & Platinum Star Constructions Pty Ltd - 1.pdf
5. RE_ Roni Hakim & Platinum Star Constructions Pty Ltd - 2.pdf
6. RE_ Roni Hakim & Platinum Star Constructions Pty Ltd - 3.pdf
7. RE_ Roni Hakim & Platinum Star Constructions Pty Ltd - 4.pdf
8. RE_ Roni Hakim & Platinum Star Constructions Pty Ltd - 5.pdf
9. RE_ Roni Hakim & Platinum Star Constructions Pty Ltd - 6.pdf
10. RE_ Roni Hakim & Platinum Star Constructions Pty Ltd - 7.pdfb”
On 12 May 2023 the claimant’s solicitor emailed the Commission stating a claim for privilege was being made over the following documents:
“1. Platinum Star Pty Ltd & Roni Hakim.pdf
2. Roni Hakim & Platinum Star Constructions Pty Ltd - 1.pdf
3. RE_ Roni Hakim & Platinum Star Constructions Pty Ltd - 2.pdf
4. RE_ Roni Hakim & Platinum Star Constructions Pty Ltd - 3.pdf
5. RE_ Roni Hakim & Platinum Star Constructions Pty Ltd - 4.pdf
6. RE_ Roni Hakim & Platinum Star Constructions Pty Ltd - 5.pdf
7. RE_ Roni Hakim & Platinum Star Constructions Pty Ltd - 6.pdf
8. RE_ Roni Hakim & Platinum Star Constructions Pty Ltd - 7.pdf”
In written submissions dated 9 June 2023 solicitors for the insurer noted that the eight ‘documents’ listed by the claimant solicitors in the email dated 10 May 2023 appear not to be documents but rather references to titles of PDF files.[1]
[1] Insurer’s submissions AD 8 p 4.
The insurer’s submissions further contend that neither the insurer nor its legal representative were copied into that correspondence until 18 May 2023, at which time the Commission responded to the claimant’s solicitor’s email, copying in the insurer’s solicitors, and inviting any submissions on behalf of the insurer in response [A2].
The insurer submits that it was unaware that any material had been produced by Onyx Partners in response to the Direction until receipt of the Commission’s email on
18 May 2023.On 18 May 2023 the insurer’s solicitors responded to the Commission stating the claim for privilege was not properly made and did not accord with Procedural Direction PIC 9. It was submitted that if the claimant maintains the claim for privilege then he ought properly comply with paragraph 36 of PIC 9 and properly identify the document(s) and specific reasons for the claim of privilege and the nature of the privilege claimed [A3].
On 30 May 2023 the claimant’s solicitor indicated they intended to provide further details of the claim for privilege by 31 May 2023 [A4].
On 31 May 2023 the claimant’s solicitor provided their response regarding the request for further details as to the claim for privilege. The claimant’s solicitors wrote:
“Dear Colleagues
We refer to Member Plibersek's decision report of 28th September 2023 herein. In compliance with the Direction of Member Plibersek we are instructed to confirm the Claimants claim for privilege over documents numbered 1-8.
Please do not hesitate to contact the Writer if applicable.
Yours faithfully,
John Stonham”
The claimant’s solicitor’s submissions for its claim for privilege are dated 31 May 2023. The submissions read as follows:
“The Claimant makes the following Submission with respect to His Privilege Claim.
1. Background
a. The NSW Personal Injury Commission (PIC) issued Direction for Production to Onxy Partners Tax Accountants (Onyx), attached.
b. Item(s) 2 to 7 inclusive of the Schedule provide the scope of documents liable to be produced pursuant to the Direction for Production.
c. The Claimant was granted First Access for a period of three (3) days commencing 10 May 2023, with respect documents produced by Onxy.
2. Privilege Claim
a. On 12 May 2023, the Claimant through His Legal Representative informed the PIC of His intention to Claim Privilege over the following documents:
(i) Platinum Star Pty Ltd & Roni Hakim.pdf
(ii) Roni Hakim & Platinum Star Constructions Pty Ltd - 1.pdf
(iii) RE_ Roni Hakim & Platinum Star Constructions Pty Ltd - 2.pdf
(iv) RE_ Roni Hakim & Platinum Star Constructions Pty Ltd - 3.pdf
(v) RE_ Roni Hakim & Platinum Star Constructions Pty Ltd - 4.pdf
(vi) RE_ Roni Hakim & Platinum Star Constructions Pty Ltd - 5.pdf
(vii) RE_ Roni Hakim & Platinum Star Constructions Pty Ltd - 6.pdf
(viii) RE_ Roni Hakim & Platinum Star Constructions Pty Ltd - 7.pdf
b. The Privilege Claim is on the basis the documents fall well outside of the scope of documents liable to be produced pursuant to the Direction for Production.
c. Documents (i), (vi) and (viii) above comprise emails authored by Erkan Mentesh (Onyx) and directed to the Claimants Legal Representative each document is undated. Documents (ii), (iii), (iv), (v) and (vii) above comprise emails authored by the Claimants Legal Representative and directed to Erkan Mentesh (Onyx) during the period 1 April 2022 and 31 August 2022.
d. It is evident from the description of the documents above at 2(c) and relevant time frame the documents were authored, the subject documents fall well outside of the scope of documents liable to be produced by Onyx and thus the Claimants Privilege Claim ought be upheld.
3. Order sought by Claimant
The Claimants Privilege Claim ought be upheld with respect to the documents listed at 2(a) herein above.
Yours faithfully,
John Stonham, Partner”
The insurer’s solicitors were not copied into that email dated 31 May 2023 and were not aware that the communication had been made until the Commission responded to the claimant’s solicitor on 1 June 2023, copying in the insurer’s representative [A5].
The insurer notes that no claim has been made in respect to the PDFs titled:
“1. Roni Hakim 2016 Tax.pdf
3. Platinum Star Financial Statements.pdf”
The insurer rightly submits that in his written submission the claimant’s solicitor has not articulated any other basis upon which it is alleged privilege applies to the material produced by Onyx Partners.[2] The insurer quotes the claimant’s submission which is that “…the subject documents fall well outside of the scope of documents liable to be produced by Onyx and thus the Claimants Privilege Claim ought be upheld”. The insurer then again correctly comments in response that the basis for the privilege claim alleged on behalf of the claimant is not founded upon any recognised form of privilege. The insurer writes that the claimant’s contention that documents fall outside of the scope of the Direction does not shift those documents into the realm of privilege. That is not the test for determining privilege.
[2] Insurer’s submissions AD 8 p 5.
The concluding submission from the insurer is that the submissions made by the claimant’s solicitor cannot justify a claim for privilege being made or sustained. The documents should be provided to the insurer.
REASONS
Before reviewing the documents over which a claim for legal professional privilege is made I will consider whether or not the evidentiary rules about legal professional privilege should be followed by the Commission.
Does legal professional privilege apply to proceedings in the Commission?
Section 43 of the Personal Injury Commission Act 2020 provides that the Commission is not bound by the rules of evidence and may inform itself as it thinks appropriate.
Specifically the relevant provision is as follows:
“43 Procedure before Commission generally
(1) Proceedings in any matter before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits.
(2) The Commission is not bound by the rules of evidence but may inform itself on any matter in the manner the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits.
(3) The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.”
The common law generally reflects the statutory position for most tribunals that the rules of evidence do not apply to tribunals.[3]
[3] See, for example, Australian Football League v Carlton Football Club Ltd [1998] 2 VR 546. Refer to the COAT Practice Manual for Tribunals, 5th edition 2020.
Although tribunals are not bound by the rules of evidence they are not precluded from adopting or applying them in particular circumstances, as they see fit.[4] When assessing information to which an exclusionary rule of evidence refers, the tribunal may consider the rule for purposes of determining what weight to give the information.[5] The Federal Court stated in Sullivan v Civil Aviation Safety Authority:[6]
“The procedural flexibility accorded to an administrative tribunal does not absolve it from the obligation to make findings of fact based upon material which is logically probative in which the rules of evidence provide a guide.”
[4]Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555; [2014] FCAFC 93 at [121].
[5] Kerr, above n 98; Kevin v Minister for the Capital Territory (1979) 37 FLR 1 at 2; R Pepper and A Van Ewijk, ‘Making Sure that Curiosity Does Not Kill the Cat: The Use of Expert Evidence in Merits Review for where the Rules of Evidence Do Not Apply’ (2019) 97 AIAL Forum 37 at [53]-[54].
[6] (2014) 226 FCR 555; [2014] FCAFC 93,97 (Flick and Perry JJ).
It is now generally accepted that legal professional privilege applies to evidence given before tribunals and documents required to be provided to tribunals.[7] A person may decline to answer questions or to supply documentation to a tribunal if the subject matter relates to communications with a legal adviser which were made for the dominant purpose of obtaining or giving legal advice or for the dominant purpose of current or reasonably anticipated legal proceedings.[8] The privilege relates to three kinds of communication:
• communications between a client or the client’s agents and the client’s professional legal advisers, if made for the dominant purpose of the client obtaining legal advice or for contemplated legal proceedings;
• communications between a client’s professional legal advisers and third parties, if made for the dominant purpose of contemplated legal proceedings, and
• communications between a client or a client’s agent and third parties, if made for the dominant purpose of obtaining advice upon pending or contemplated legal proceedings.
[7] See Farnaby v Military Rehabilitation and Compensation Commission (2007) 97 ALD 788; Comcare v Foster [2006] FCA 6 at [38]-[39]; ALRC Discussion Paper 73, ‘Client Legal Privilege and Federal Investigatory Bodies’, Chapter 3, 72.
[8] See Esso Australia Resources Limited v Commissioner of Taxation [ 1999] HCA 67.
The High Court held that the rationale 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, the law being a complex and complicated discipline. This it does by keeping secret their communications, thereby inducing the client to retain the solicitor and seek his advice, and encouraging the client to make a full and frank disclosure of the relevant circumstances to the solicitor.”[9]
[9] Grant v Downs (1976) 135 CLR 674 at [685].
The Evidence Act 1995 (Evidence Act) deals with the issue of a claim for legal professional privilege which it refers to as “client privilege”.
Section 118 of the Evidence Act reflects the common law position referred to above. The Evidence Act provides that evidence disclosing legal advice is not to be adduced in the circumstances specified.
In detail s 118 of the Evidence Act states that:
“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.”
Having considered the cases and legislation referred to above, my view is that the Commission is not bound by the rules of evidence but can use those rules as a guide. In proceedings before the Commission legal professional privilege is available to prevent the disclosure of confidential documents if it can be established that the advice was prepared for the dominant purpose of the lawyer providing legal advice to a claimant.[10]
[10] See Farnaby v Military Rehabilitation and Compensation Commission (2007) 97 ALD 788; Comcare i’ Foster [2006] FCA 6 at [38]—[39]; ALRC Discussion Paper 73, ‘Client Legal Privilege and Federal Investigatory Bodies’, Chapter 3, 72.
The claimant may decline to answer questions or to supply documents to the Commission if the subject matter relates to communications with a legal adviser which were made for the dominant purpose of obtaining or giving legal advice or for the dominant purpose of current or reasonably anticipated legal proceedings.[11]
[11] See Esso Australia Resources Limited v Commissioner of Taxation [ 1999] HCA 67.
Can legal professional privilege be claimed for the documents produced?
Having now decided that the Commission should adopt as a guide the rules of evidence pertaining to legal professional privilege, I will review the documents for which legal professional privilege is claimed by the claimant in this case.
I have reviewed the eight documents involved and their details are collated in the table below:
Number
Description
From/To
Summary
i.
Platinum Star Pty Ltd & Roni Hakim.pdf
Erkan Mentesh Onyx/John Stonham
One page cover email to
John Stonham
ii
Roni Hakim & Platinum Star Constructions Pty Ltd - 1.pdf
John Stonham/ Erkan Mentesh Onyx
27 April 2022. Two page email with questions from John Stonham
iii
RE_ Roni Hakim & Platinum Star Constructions Pty Ltd - 2.pdf
John Stonham/ Erkan Mentesh Onyx
3 May 2022. Three pages. Includes copy of email of 27 April 2022 questions from John Stonham
iv
RE_ Roni Hakim & Platinum Star Constructions Pty Ltd - 3.pdf
John Stonham/ Erkan Mentesh Onyx
25 May 2022. Three pages. Includes copy of email of 27 April 2022 questions from John Stonham
v
RE_ Roni Hakim & Platinum Star Constructions Pty Ltd - 4.pdf
John Stonham/ Erkan Mentesh Onyx
5 June 2022. Five pages. Includes copy of email of 27 April 2022 questions from John Stonham
vi
RE_ Roni Hakim & Platinum Star Constructions Pty Ltd - 5.pdf
Erkan Mentesh Onyx/ John Stonham
Undated 2022. Two page email responding to request for files
vii
RE_ Roni Hakim & Platinum Star Constructions Pty Ltd - 6.pdf
John Stonham/ Erkan Mentesh Onyx
12 August 2022. Two page email seeking an update.
viii
RE_ Roni Hakim & Platinum Star Constructions Pty Ltd - 7.pdf
Erkan Mentesh Onyx/ John Stonham
Undated 2022. Three page email responding to questions in email of 27 April 2022 from John Stonham
Before setting out my findings I will first refer to the claimant’s basis for his claim for privilege. The claimant’s solicitor submits that “…the subject documents fall well outside of the scope of documents liable to be produced by Onyx and thus the Claimants Privilege Claim ought be upheld.” As the insurer correctly remarks in its submissions, this is not a properly made claim for legal professional privilege by the claimant. Despite accepting this submission from the insurer I have proceeded on the basis that a claim for legal professional privilege has been made in accordance with the law as I have set it out above. If I were to reject the claimant’s claim on this technical basis I would not be deciding the case consistently with the guiding principle in s 42 of the PIC Act and the Commission rules to facilitate the just, quick and cost effective resolution of the real issues in the proceedings.
Having reviewed the eight documents for which legal professional privilege is claimed and considered the common law and legislation referred to above I find as follows. A claim for legal professional privilege is not available for document numbered (i) above. A claim for legal professional privilege is available for documents numbered (ii) to (viii) inclusive above.
The document numbered (i) above is simply a one page email from Erkan Mentesh Onyx Partners to John Stonham lawyer attaching the files/financials that Onyx Partners have on file for Platinum Star Pty Ltd. That email cannot be characterised as advice prepared for the dominant purpose of the lawyer providing legal advice to a claimant. I find that document numbered (i) can be produced to the insurer.
Regarding documents numbered (ii) to (viii), I find that those documents are prevented from disclosure by the claim for legal professional privilege because those documents were prepared for the dominant purpose of the claimant’s lawyer seeking information to provide legal advice to a claimant about his ongoing damages claim. Without disclosing the contents of those documents they were an exchange of emails containing a number of questions repeatedly asked by the claimant’s solicitor of the claimant’s accountant about the tax and corporate affairs of the claimant and his company Platinum Star Constructions Pty Ltd.
CONCLUSION
In conclusion I direct that document numbered (i) in the above table and named “Platinum Star Pty Ltd & Roni Hakim.pdf” can be produced to the insurer. I also direct that the documents numbered (ii) to (viii) in the table above are prevented from disclosure by the claim for legal professional privilege and are not to be shared or produced to the insurer or its legal representatives or any other person.
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