Carpenter and Australian Capital Territory (Compensation) - [2021] AATA 4378

Carpenter and Australian Capital Territory (Compensation) [2021] AATA 4378 (26 November 2021)
Division:GENERAL DIVISION
File Number(s): 2021/2775
2021/3916

Re:Shane Carpenter
APPLICANT

Australian Capital TerritoryAnd
RESPONDENT

DECISION
Tribunal:Mr S. Webb, Member
Date:26 November 2021
Place:Canberra

Objections refused. The ACT is granted access to Ms Howard’s unredacted records forthwith.
…………[Sgd]………
Mr S. Webb, Member
Catchwords
PRACTICE AND PROCEDURE – compensation for psychological injury – determination of no present liability in respect of medical treatment expenses and incapacity for work – permanent impairment - applications for review – summons – production of medical records – objections to access – legal professional privilege – relevant principles – objection refused
Legislation
Administrative Appeals Tribunal Act 1975 ss 2A, 35, 40A, 40B
Evidence Act 1995, ss 118, 119
Safety, Rehabilitation and Compensation Act 1988 ss 5A, 5B, 7, 14, 16, 19
Cases
Australian Competition and Consumer Commission v NSW Ports Operations Hold Co Pty Ltd [2020] FCA 1232.
AWB Limited v Honourable Terence Rhoderic Hudson Cole [2006] FCA 571.
Baker v Campbell [1983] HCA 39.
Barnes v Commissioner for Taxation [2007] FCAFC 88.
Becker and Minister for Immigration and Ethnic Affairs [1977] AATA 12.
British American Tobacco Australia Limited v Secretary, Department of Health and Aging [2011] FCAFC 107.
BWO19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 181.
Corporate Affairs Commission (NSW) v Yuill [1991] HCA 28.
Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49.
Ensham Resources Pty Ltd v Aioi Insurance Company Limited [2012] FCAFC 191.
Esso Australia Resources Limited v Commissioner of Taxation of the Commonwealth of Australia [1999] HCA 67.
Farnaby and Military Rehabilitation and Compensation Commission [2007] AATA 1792.
Frugtniet v Australian Securities and Investments Commission [2019] HCA 16.
Goldberg v Ng Hango Holdings Pty Ltd [1995] HCA 39.
Grant v Downs [1976] HCA 63.
Ingot Capital Investments Pty Limited & Ors v Macquarie Capital Markets Limited & Ors [2006] NSWSC 530.
Kennedy v Wallace [2004] FCAFC 337.
Kenquist Nominess Pty Limited v Campbell (No 5) [2018] FCA 853.
Mann v Carnell [1999] HCA 66.
Osland v Secretary, Department of Justice [2008] HCA 37.
Perazolli v BankSA [2017] FCAFC 204.
Sorby v The Commonwealth [1983] HCA 10.
Waterford v Commonwealth [1987] HCA 25.
Woodhouse v Comcare [2021] FCAFC 95.

REASONS FOR DECISION
Mr S. Webb, Member
26 November 2021

Shane Carpenter has an accepted claim for compensation in respect of a work-related psychological injury. Employers Mutual Limited (EML), the compensation claims manager for the Australian Capital Territory (ACT), decided by primary determination and on reconsideration that, as of 15 February 2021, the ACT had no present liability to pay compensation for the injury under ss 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) and Mr Carpenter was not entitled to compensation…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] AATA 4378
Decision Date: 26 November 2021

CaseChat Overview and Summary

This matter concerned an application for review of determinations made by EML on behalf of the Australian Capital Territory. Mr Carpenter had lodged a compensation claim for a work-related injury, which was accepted by Comcare. Subsequently, EML issued determinations denying present liability for medical treatment expenses, incapacity for work, permanent impairment, and non-economic loss, referencing a report by a psychologist, Ms Howard. Mr Carpenter objected to the production of Ms Howard's records, asserting legal professional privilege.

The central legal issue before the Tribunal was whether Mr Carpenter had successfully established legal professional privilege over specific records held by Ms Howard. The Tribunal was required to determine if these records, created for psychological treatment, contained confidential communications, including legal advice, that remained privileged despite their disclosure to Ms Howard. The Australian Capital Territory argued that privilege could not apply to communications furthering an illegal or improper purpose, nor to advice on circumventing statutory provisions or downplaying the impact of the claims process. They further contended that any disclosure of the gist of legal advice, or repeated disclosures to Ms Howard, constituted a waiver of privilege.

The Member, Mr S. Webb, considered the submissions of both parties and examined the contentious records. The Member noted that Mr Carpenter bore the onus of establishing privilege and that the records were not created for a legal purpose but for treatment. The Member found that while the records contained notes of Mr Carpenter's discussions about legal issues and his lawyer's purported views, these disclosures to Ms Howard in a treatment context did not, in the circumstances, amount to an express or implied waiver of legal professional privilege. However, the Member was not persuaded that the claims of privilege were made out.

Consequently, the objections to access to Ms Howard's records were refused, and the Australian Capital Territory was granted access to the unredacted records.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Once established, the privilege may be relinquished or waived, expressly or impliedly, intentionally or inadvertently, by the client.[31] Imputed waiver may occur in circumstances where the client provides limited actual or purported disclosure of the content of the privileged communication.[32] The extent to which the disclosure is inconsistent with the confidentiality of the legal advice as a whole, or the conduct of the person is inconsistent with the maintenance of privilege,[33] is a matter for assessment in the circumstances of each case.[34] There is a question whether disclosure of the existence and the effect or the gist of legal advice may be inconsistent with maintaining confidentiality in the terms of the advice. These are matters of fact and degree.[35] In some circumstances, disclosure of the gist of legal advice may not amount to waiver of legal professional privilege.[36] Issues of fairness, or unfairness, may bear upon an assessment of this kind.[37][31] Mann v Carnell [1999] HCA 66 per Gleeson CJ, Gaudron, Gummow and Callinan JJ at [28].[32] Ibid.[33] British American Tobacco Australia Limited v Secretary, Department of Health and Aging [2011] FCAFC 107 at [41].[34] Osland v Secretary, Department of Justice [2008] HCA 37 per Gleeson CJ, Gummow, Heydon and Kiefel JJ at [45].[35] Ibid at [49].[36] British American Tobacco Australia Limited, v Secretary, Department of Health and Aging [2011] FCAFC 107 at [44].[37] Goldberg v Ng Hango Holdings Pty Ltd [1995] HCA 39 per Deane, Dawson and Gaudron JJ at [18].Facts Mr Carpenter lodged a compensation claim in respect of a work-related injury on 4 June 2018. On 2 August 2018, prior to the ACT’s licensing arrangement under the SRC Act and engagement of EML to manage compensation claims for the ACT, Comcare determined to accept liability for the claimed injury under s 14 of the SRC Act. Comcare decided that the date of the injury was 5 January 2018. On 12 November 2018, Dr Somasundaram, Mr Carpenter’s treating general practitioner, referred him to Ms Howard for psychological treatment.[38][38] T24 folio 96. On 20 May 2019, Ms Howard produced a report to EML in respect of Mr Carpenter.[39][39] T26. On 17 June 2019, Mr Carpenter signed an authority permitting EML to provide Prail Lawyers with information, notes or records. On 20 October 2020, EML gave Mr Carpenter notice that it intended to review liability to pay compensation in his case. On 16 November 2020, Mr Carpenter’s then lawyer, Nigel Gabbedy of Gabbedy Milson Lee, provided a detailed response to the EML notice of intent. An issue arose in respect of EML’s consideration of Mr Carpenter’s retirement on invalidity grounds. On 16 December 2020 and 15 February 2021, Mr Carpenter’s present lawyer, Sam Tierney of Ken Cush & Associates, acting on Mr Carpenter’s behalf, wrote to EML addressing related matters. On 15 February 2021, EML issued 2 determinations on behalf of the ACT. The determinations were sent to Ken Cush & Associates. In the determinations, EML denied then present liability to pay compensation for Mr Carpenter’s accepted injury in respect of medical treatment expenses under s 16 of the SRC Act, incapacity for work under s 19, permanent impairment under s 24 and non-economic loss under s 27. The decision-maker expressly referred to the report by Ms Howard.[40] [40] T45 folio 538.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In conclusion, I am not persuaded that Mr Carpenter’s claims of legal professional privilege over the records of Ms Howard to which he objected are made out.Decision The objections to access made on 18 October 2021 in respect of the records set out in Table 1 are refused. The ACT is granted access to Ms Howard’s unredacted records.I certify that the preceding 72 (seventy two) paragraphs are a true copy of the reasons for the decision herein of S. Webb, Member.……..[Sgd]………Associate Dated: 26 November 2021

Ratio Decidendi

Legal Principle Established

The parties were heard on these issues in a directions hearing on 26 October 2021.Consideration It is for Mr Carpenter to establish the facts necessary to make out his claim of privilege over the specific records of Ms Howard he has identified. The case put on Mr Carpenter’s behalf is that Ms Howard’s records set out in Table 1, which were not themselves brought into existence for any purpose relating to legal advice or legal proceedings, nevertheless disclose confidential communications, including the content of legal advice provided to Mr Carpenter by his lawyer, that are privileged from the time they were created. Disclosure of aspects of the legal advice to Ms Howard occurred in confidential circumstances, so the argument goes, and this does not amount to an express or implied waiver of the privilege. In the ACT’s submission, legal professional privilege cannot apply to communication of advice in furtherance of an illegal or improper purpose. Privilege should not apply, the ACT argues, to advice about how to avoid the exclusionary effect of s 7(7) of the SRC Act, or how to downplay the degree to which the compensation claims process, itself, may aggravate a claimed condition, in order to obtain compensation or other benefits under the SRC Act. The ACT asserts that if the records disclose only the gist of legal advice Mr Carpenter obtained, the disclosure is not subject to the privilege that otherwise attaches to the legal advice Mr Carpenter obtained. It is the ACT’s submission that Mr Carpenter made repeated disclosures to Ms Howard (as identified in the objection) and this is consistent with express or necessarily implied waiver of privilege, or it is inconsistent with maintenance of the confidentiality the privilege protects. The ACT contends that the disclosures Mr Carpenter made to Ms Howard in a psychological treatment context may be relevant to a proper assessment of the contributory causes of any symptoms, impairment or incapacity he experienced in or about 13 November 2020, and whether his previous employment contributed to a significant degree at that time. For this reason, the ACT argues that the disclosures are inconsistent with the maintenance of confidentiality in circumstances where they are relevant to matters the Tribunal must decide. The privilege claim is raised on the content of Ms Howard’s records without any other supporting evidence. It amounts to a bare assertion of privilege. The records were produced for the purposes of Ms Howard’s treatment of Mr Carpenter. They were not brought into existence for any legal purpose. Electronic copies of the documents were summonsed and produced to the Tribunal for the purposes of these proceedings. It being appropriate to do so in the circumstances, I have examined the nature and the content of each of the contentious records (which have not been disclosed to the ACT) in order to assess if the claim of privilege is made out. Each record contains notes taken by Ms Howard of matters Mr Carpenter discussed in reference to his descriptions, understandings or expectations of legal issues and processes, including purported views of his lawyer, relating to his claim for compensation.