Bryant and Military Rehabilitation and Compensation Commission
[2005] AATA 190
•8 March 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 190
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2004/963
GENERAL ADMINISTRATIVE DIVISION ) Re STEPHEN BRYANT Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal Mr John Handley, Senior Member Date8 March 2005
PlaceMelbourne
Decision The claim of the applicant to deny release of medical reports of Mr R Sutherland dated 12 June 2003 and 22 July 2003 by reason of legal professional privilege is upheld. (Sgd) John Handley
Senior Member
PRACTICE AND PROCEDURE – refusal by applicant’s solicitors to exchange medical reports – claim of legal professional privilege – whether an applicant entitled to avail himself of this right to resist release of medical reports – whether AAT Act has any clear language denying the right – whether any utility in relying on privilege when opinions within the reports likely to be known at hearing
Safety, Rehabilitation and Compensation Act 1988 (Cth) s24 and s27
Re Velovski and Telstra Corporation Limited (AAT 12737, 23 March 1998)
The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49
Re Greenbank and Secretary Department of Social Security (1986) 9 ALD 338
Re Parremore and Australian Postal Corporation (1991) 23 ALD 115
Esso Australia Resources Limited v The Commissioner of Taxation [1999] HCA 67
Australian Postal Commission (1989) 18 ALD 340
Re Chang and Comcare (1998) 48 ALD 746
Re McMaugh and Australian Telecommunications Commission (1991) 22 ALD 393
Digby v Essex County Council (1994) PIQR 53
Khan v Armaguard Limited (1994) 1 WLR 1204
REASONS FOR DECISION
8 March 2005 Mr John Handley, Senior Member 1. The applicant has applied to review a decision made by the respondent on 16 August 2004. The respondent then decided to affirm a determination made on 27 April 2004 to deny liability for lump sum compensation pursuant to sections 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”) with respect to the applicant’s left knee.
2. The application has been the subject of a pre-hearing conference in the Tribunal and an inspection by the representatives of the parties of the clinical notes of the applicant’s treating medical practitioners. On that latter occasion, objection was taken by the representatives of the applicant to an inspection by the respondent’s representatives of two medical reports completed by Mr Roger Sutherland, the applicant’s treating orthopaedic surgeon.
3. The reports are dated 12 June 2003 and 22 July 2003. They are both addressed to the applicant’s solicitors. Objection was taken on the basis of legal professional privilege. Mr Haan, who appeared on behalf of Mr Bryant, submitted that the reports were obtained by the applicant’s solicitors solely for the purposes of giving advice with respect to these proceedings. A claim of legal professional privilege was asserted by Mr Haan as attaching to both reports and in those circumstances, access to the reports by the respondent’s representatives should be prohibited.
4. Mr Haan relied on the decision of the High Court in The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49(“Daniels”) in support of his application. He submitted that the High Court decided that legal professional privilege was a substantive common law right that could only be removed by clear unambiguous statutory language. He said language of that type does not exist within the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) and in the circumstances, no Order should be made to permit release of the reports to the respondent’s representatives.
5. Mr Dobelsky appeared on behalf of the respondent and submitted that the respondent learnt of the existence of the reports by the objection taken to their release by the applicant’s representatives. It was submitted that the reports were not considered by the respondent in the making of its primary or reconsidered decision and by reason of opinions apparently expressed within the reports by the treating surgeon, access to those reports should be granted to the respondent. It was submitted that Mr Sutherland is likely to be called to give evidence in the event that the matter does not resolve and in those circumstances, the opinions expressed by Mr Sutherland will then become known.
6. Mr Dobelsky relied on a decision of Senior Member Bayne in the Tribunal decision of Re Velovski and Telstra Corporation Limited (AAT 12737, 23 March 1998). In that decision Senior Member Bayne referred to an essay written by the former President, Brennan J, concerning the powers and practices of the Tribunal and the need to distinguish processes in administrative review from curial proceedings.
7. The procedures of the Tribunal are recorded at s33 of the AAT Act. This section is often quoted and entitles the Tribunal in its discretion to determine its own procedure, to conduct its proceedings informally and expeditiously and without technicality. It may inform itself as it thinks appropriate without being bound by the rules of evidence.
8. Section 33(2A) permits the Tribunal in the exercise of its discretion to require a person who is a party to the proceeding to provide “further information in relation to the proceeding” or to direct the provision of a “statement of matters or contentions upon which reliance is intended to be placed at the hearing”.
9. Section 37 is directed towards respondent decision makers and compels production of documents. If the Tribunal is of the opinion that there are documents which have not been released to a citizen, the Tribunal has power to cause a notice to be issued requiring production and exchange. Section 37(3) provides that s37 has “effect not withstanding any rule of law relating to privilege or the public interest in relation to the production of documents”.
10. In Grant v Downs (1976) 135 CLR 674 the High Court referred to legal professional privilege being confined to documents brought into existence for the sole purpose of being provided to a parties’ lawyers for the giving of advice or use in legal proceedings. The “sole purpose” test was followed in this tribunal in Re Parremore and Australian Postal Corporation (1991) 23 ALD 115 and in Re Greenbank and Secretary Department of Social Security (1986) 9 ALD 338 (“Re Greenbank”).
11. However the “sole purpose” test has now been replaced in Australia by the “dominant purpose” test – refer High Court decisions of The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49 and Esso Australia Resources Limited v The Commissioner of Taxation [1999] HCA 67.
12. There are many decisions of this Tribunal where citizens have sought access to documents withheld by respondents who are either Commonwealth departments or agencies. Often the Tribunal has decided that respondents should release documents sought to be withheld for a number of reasons, no less reasons its duty as a decision maker, its obligations pursuant to s37 of the AAT Act, and its duty not to seek to avoid a liability or a payment of a benefit when it has a statutory responsibility to provide that benefit or exercise that liability. In recent years, the Commonwealth Model Litigant Policy has also been invoked to ensure release of documents. In effect the Tribunal – and on a number of occasions the Federal Court – has consistently found that these proceedings are administrative in nature, where the correct or preferable decision should be made. Administrative proceedings should be free from the influence of the adversarial features of curial proceedings.
13. I do note however that in Re Greenbank, an applicant for a disability pension refused to release medical reports held by his solicitors with respect to his incapacity for employment. The solicitors claimed legal professional privilege. The Tribunal expressed its regret that a frank disclosure and exchange of information between both parties had not occurred but nonetheless found that legal professional privilege could be claimed (and invoked) against compelling an applicant to release documents to a respondent (Re Greenbank was followed also by the Tribunal in Re McMaugh and Australian Telecommunications Commission (1991) 22 ALD 393 (“Re McMaugh”).
14. In Re Lindsey and Australian Postal Commission (1989) 18 ALD 340 the Tribunal comprised of Gray J, Senior Member Dwyer and Professor Webster, decided that the AAT Act – especially s33 – could not be construed as “overriding a fundamental common law privilege unless it does so in clear terms”. The Tribunal, as then constituted, found that s33 did not have such a power. The Tribunal noted that the provisions of s37(3) of the AAT Act did operate to prohibit a claim of legal professional privilege. However, that section is confined to the duties and obligations of decision makers and their representatives and “the person” referred to in sub-section (2) against whom a notice can be served compelling production of documents is the same “person” as referred to in sub-section (1) (refer Re Chang and Comcare (1998) 48 ALD 746.
15. In Daniels, the High Court in paragraphs 10 and 11 decided as follows:
[10] Being a rule of substantive law and not merely a rule of evidence, legal professional privilege is not confined to the processes of discovery and inspection and the giving of evidence in judicial proceedings. Rather and in the absence of provision to the contrary, legal professional privilege may be availed of to resist the giving of information or the production of documents in accordance with investigatory procedures of the kind for which s155 of the Act provides. Thus, for example, it was held in Baker v Campbell, that documents to which legal professional privilege attaches could not be seized pursuant to a search warrant issued under s10 of the Crimes Act 1914 (Cth).
[11] Legal professional privilege is not merely a rule of substantive law. It is an important common law right or, perhaps, more accurately, an important common law immunity. It is now well settled that statutory provisions are not to be construed as abrogating important common law rights, privileges and immunities in the absence of clear words or a necessary implication to that effect. That rule, the expression of which in this Court can be traced to Potter v Minahan, was the foundation for the decision in Baker v Campbell. It is a rule which, subject to one possible exception, has been strictly applied by this Court since the decision in Re Bolton; Ex parte Beane18 [(1987) 162 CLR 514]. Cases in which it has since been applied include Bropho v Western Australia19 [(1990) 171 CLR 1], Coco v The Queen20 [(1994) 179 CLR 427] and Commissioner of Australian Federal Police v Propend Finance Pty Ltd21 [(1997) 188 CLR 501]. The possible exception to the strict application of that rule was the decision in Yuill22 [(1991) 172 CLR 319].
16. I am satisfied that the reports of Mr Sutherland were obtained by the applicant’s solicitors for the dominant purpose of giving advice. In these circumstances I am satisfied that the applicant in the present proceedings is entitled to claim legal professional privilege. I can find nothing in the language of the AAT Act permitting a finding that its language or construction would allow the removal of the right to claim legal professional privilege. I am accordingly unable to compel or direct the release to the respondent of the reports of Mr Sutherland.
Comment
17. The Tribunal expressed its frustration in Re Greenbank by the failure of the applicant to exchange the reports that his solicitors held. The Tribunal noted that the Tribunal’s powers under s33 of the AAT Act could not properly be exercised when a claim for legal professional privilege over documents was made. The Tribunal also in Re McMaugh noted its frustration because on the one hand there was a public interest in the Tribunal making its decisions on the best available evidence – an inevitable consequence of a full and frank disclosure of documented material – however keeping the objectives of public policy and open decision making were frustrated by the need to respect the claim for legal professional privilege.
18. Despite the findings I have made in the present application I doubt that they will have any practical long term significance. It is implicit by the applicant’s solicitors withholding the reports of the treating surgeon that those reports contain information which do not advance the applicant’s case. The applicant in fact does rely on a medico-legal opinion of Mr F.T. McDermott found at T32 pages 60 to 65. It was learnt at the Directions Hearing that Mr McDermott was not given copies of the reports prepared by Mr Sutherland. If this matter does not resolve it is inevitable that Mr Sutherland will be called to give evidence. He will be examined as to his opinions with respect to the issues in dispute in these proceedings. Equally inevitable will be the disclosure by him of the information which the applicant presently is able to withhold by the claim for legal professional privilege.
19. It is regretted that the applicant’s solicitors have taken a position of refusing to disclose documented medical reports in its possession. It is also likely by the position now taken that early resolution will not be achieved and the proceedings will be protracted with consequential expense to both parties.
20. The English Courts in the last decade have required parties – no doubt by reason of local Rules – to fully disclose documented evidence prior to hearing. In Digby v Essex County Council (1994) PIQR 53, Simon Brown LG decided, that where it is known that one party is withholding documented information from another, the party prohibited from access to the information is unable to properly be advised by their representatives or consider risk. Negotiation – which is to be encouraged particularly in personal injuries applications, will be frustrated and it is likely that considerable costs will be incurred. The Court or the Tribunal will be rendered inefficient because its time and resources have been unnecessarily occupied (when a settlement might otherwise have been achieved) and both parties will be exposed to the risk of litigation, that is, the imposition of a decision which may be adverse. The approach to disclosure by both parties of documented information has become colloquially known as “the cards on the table approach” (refer also Khan v Armaguard Limited (1994) 1 WLR 1204. I would recommend with respect that the applicant’s advisers in the present proceedings reconsider their position and seek to obtain instructions for the release of the reports of Mr Sutherland. Resolution presently is not impossible but as this application proceeds closer to the door of hearing, the likelihood of an amicable and consensual conclusion will become more remote.
I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of
Mr John Handley, Senior MemberSigned: Alice Beattie
AssociateDate of Hearing 14 February 2005
Date of Decision 8 March 2005
Counsel for the Applicant Mr C Haan
Solicitor for the Applicant Slater & Gordon
Counsel for the Respondent Nil
Solicitor for the Respondent Lazarus Dobelsky
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