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

1. 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 for permanent impairment. Mr Carpenter applied for review of these decisions by the Tribunal. 

2. In the course of the resulting proceedings, at the request of the ACT, on 8 July 2021, the Tribunal summonsed records of Mr Carpenter’s treating psychologist, Ms Kerry Howard. Ms Howard produced her records in compliance with the summons.

3. Mr Carpenter objected to the ACT being given access to all of the records Ms Howard produced and claimed that some of the records were subject to legal professional privilege.

4. The ACT contested Mr Carpenter’s claim for privilege but accepted that access would not be granted if the records were truly subject to the privilege claimed.[1]

   [1] Respondent’s Outline of Submissions, 21 October 2021, page 5.

5. It is this matter alone that is the subject of this decision.

   The objection

6. Through his legal representative, Mr Sam Tierney of Ken Cush & Associates, Mr Carpenter submitted that he “objects to the above specific entries in the clinical notes of his medical treatment provider [these are set out in Table 1, below] and claims privilege over [these] entries in the clinical records pursuant to Sections 118 and 119 of the Evidence Act 1995 (Cth)”.[2] And furthermore asserted the “The applicant has not (and does not) waive privilege over any of the entries in the clinical records”.

   [2] Applicant’s written submissions lodged on 18 October 2021, page 1.

7. The particular records that are subject to the claim of privilege were not specified in detail in the Schedule of Objections Mr Tierney gave to the Tribunal. Nonetheless, these are specified in redactions made to the documents produced by Ms Howard. They are set out in the following Table.

   Table 1

RECORDS	DATE	DESCRIPTION	BASIS OF OBJECTION
Paragraphs 1 and 2, page 3	10 February 2021	Consultation records	Legal advice and litigation privilege
Paragraph 2, page 4	2 February 2021	Consultation records	Legal advice and litigation privilege
Paragraph 1, page 5	10 December 2020	Consultation records	Legal advice and litigation privilege
Paragraphs 3 and 4, page 24	3 September 2019	Consultation records	Legal advice and litigation privilege
Paragraph 2, 2nd sentence, page 25	21 August 2019	Consultation records	Legal advice and litigation privilege
Paragraph 1, page 26	16 July 2019	Consultation records	Legal advice and litigation privilege
Paragraph 1, page 34	4 April 2019	Consultation records	Legal advice and litigation privilege
Paragraph 1, page 35	21 March 2019	Consultation records	Legal advice and litigation privilege
Paragraph 1, 3rd, 4th and 5th sentences, and paragraph 2, 1st and 2nd sentences, page 38	14 February 2019	Consultation records	Legal advice and litigation privilege
Paragraph 1, page 40	7 February 2019	Consultation records	Legal advice and litigation privilege

1. The basis on which the claim for privilege is made is stated in the following terms:

   3. The entries in the clinical records contain recordings by a medical treatment provider of the applicant which either directly, or indirectly, would disclose:

   a.        confidential communications between the applicant and his lawyers; or

   b.        the content of a confidential document prepared by the applicant, his lawyers or the medical treatment provider

   4. Further, or in the alternative, the entries in the clinical records contain recordings by a medical treatment provider of the applicant which either directly, or indirectly, would disclose:

   a.        confidential communications between the applicant and his lawyers; or

   b.        the contents of a confidential document;

   which were for the dominant purpose of the applicant being provided with professional legal services relating to an Australian legal proceeding (including the current proceedings) or anticipated Australian proceeding, in which the applicant is a party or may be a party.[3]

   [3] Applicant’s written submissions lodged on 18 October 2021, page 2.

   Principles

2. Before the facts and the submissions of the parties, it is desirable to address relevant legislative provisions that govern Tribunal review proceedings, including the powers of the Tribunal, and matters of principle relating to the claims of privilege.

3. The Tribunal is a creature of statute. It is not a court. It does not exercise judicial power. These features notwithstanding, the Tribunal “is vested with statutory authority to determine issues with legally binding consequences”.[4] It makes administrative decisions that “affect people’s rights”.[5] It conducts business in a court-like manner, according to the judicial model.[6] This model underlies some of the statutory features of Tribunal proceedings and powers conferred upon the Tribunal by the legislature when enacting the Administrative Appeals Tribunal Act 1975 (AAT Act), including –

   (a)the determination of parties to proceedings (s 30) and persons whose interests might be affected (s 31);

   (b)the right of a party to representation (s 32);

   (c)the obligation to ensure that each party has a reasonable opportunity to present their case and to inspect and make submissions about documents before the Tribunal (s 39);

   (d)the power to conduct directions hearings and to make directions in a proceeding (s 33);

   (e)the requirement for an application to be decided at a hearing (subject to the exclusions in s 34J) and for hearings to be conducted in public (s 35);

   (f)the requirement to act on evidence and to give reasons for its decision (s 34E, s 40 and s 43);

   (g)the power to take evidence on oath or affirmation (s 40); and

   (h)the power to summons persons to give evidence or to produce documents (s 40A).

   [4] AWB Limited v Honourable Terence Rhoderic Hudson Cole [2006] FCA 571 at [161].

   [5] Farnaby and Military Rehabilitation and Compensation Commission [2007] AATA 1792 at [20].

   [6] Becker and Minister for Immigration and Ethnic Affairs [1977] AATA 12, per Brennan J at [161].

4. While proceedings in the Tribunal may appear to be court-like, under s 33(1AA), the person who made the decision under review must use their best endeavours to assist the Tribunal to make its decision. The Tribunal is required to make the correct or preferable decision on relevant materials placed before it. In so doing, under s 43(1), and subject to legislative constraint, it may exercise all of the powers and is subject to the same general constraints that applied to the person who made the decision under review. It is required to address the same question or questions that the original decision maker was bound to decide, albeit doing so at the time of the Tribunal’s decision.[7] Additionally, under s 33(1A), each party to a proceeding bears a legal obligation to assist the Tribunal to fulfill its statutory objective set out in s 2A –

   In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that:

   (a)  is accessible; and

   (b)  is fair, just, economical, informal and quick; and

   (c)  is proportionate to the importance and complexity of the matter; and

   (d)  promotes public trust and confidence in the decision‑making of the Tribunal.

   [7] Frugtniet v Australian Securities and Investments Commission [2019] HCA 16 per Keifel CJ, Nettle and Keane JJ at [14]-[15] and Per Bell, Gageler, Gordon And Edelman JJ at [51].

5. Furthermore, under s 33(1), the Tribunal has power to determine procedure –

   In a proceeding before the Tribunal:

   (a)  the procedure of the Tribunal is, subject to this Act and the regulations and to any other enactment, within the discretion of the Tribunal;

   (b)  the proceeding shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit; and

   (c)  the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.

6. As can be seen, the Tribunal is not bound by the rules of evidence. Nevertheless, the Tribunal must make findings in a logically probative manner on the relevant materials placed before it according to substantial justice and the merits of the case.

7. In consequence of s 33(1)(c) of the AAT Act, the Tribunal is not within the terms of s 4 of the Evidence Act 1995, which is not therefore applicable to Tribunal proceedings. The Tribunal is not a body that applies the laws of evidence and it is not within the definition of ‘Federal court’ in s 3 of that Act.[8]

   [8] Farnaby and Military Rehabilitation and Compensation Commission [2007] AATA 1792 at [7]; Ingot Capital Investments Pty Limited & Ors v Macquarie Capital Markets Limited & Ors [2006] NSWSC 530 at [16].

8. From this it follows that claims of privilege based on s 118 or s 119 of the Evidence Act are misdirected in proceedings before the Tribunal. On this point, the privilege claims asserted on Mr Carpenter’s behalf may be flawed, but the Tribunal is not bound by technical errors in submissions made by a party of this kind. The assertion of privilege must be considered on a proper basis, according to applicable common law principles.

9. The claims of privilege in this instance involve the two branches of common law legal professional privilege, ‘advice privilege’ and ‘litigation privilege’. The former, ‘advice privilege’ arises from communications between a client and lawyer for the dominant purpose of seeking and receiving legal advice. The latter, ‘litigation privilege’, arises from communications between a lawyer and client or third party for the dominant purpose of providing legal services in connection with pending or anticipated legal proceedings.

10. Legal professional privilege or client legal privilege is a substantive rule of law that exists for the benefit of the client, not the lawyer.[9]

    [9] Ensham Resources Pty Ltd v Aioi Insurance Company Limited [2012] FCAFC 191 at [47].

11. For the reasons set out in Farnaby and Military Rehabilitation and Compensation Commission (Farnaby),[10] litigation privilege is available in respect of Tribunal proceedings.[11] The High Court has repeatedly stated that legal professional privilege is not confined to judicial or quasi-judicial proceedings.[12] Furthermore, As Dawson J observed in Waterford v Commonwealth (Waterford)[13] at [21] –

    The concept of litigation for the purpose of the doctrine of legal professional privilege is, I think, wide enough to embrace the proceedings before the Tribunal which were conducted upon adversary lines and contemplated legal representation. Communications for the purpose of giving and receiving legal advice in relation to those proceedings fell, in my view, within the privilege. 

    [10] [2007] AATA 1792 at [25] to [35].

    [11] Farnaby and Military Rehabilitation and Compensation Commission [2007] AATA 1792 at [31].

    [12] See Baker v Campbell [1983] HCA 39; Sorby v The Commonwealth [1983] HCA 10; Corporate Affairs Commission (NSW) v Yuill [1991] HCA 28; Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49.

    [13] [1987] HCA 25.

12. The ACT’s assertion that litigation privilege may not apply in Tribunal proceedings because such proceedings are not adversarial and do not amount to litigation cannot be accepted. While there may be some controversy regarding the scope of ‘advice privilege’ and ‘litigation privilege’, which it is not necessary to engage with here, it is now well settled that legal professional privilege can arise and apply in respect of quasi-judicial or Tribunal proceedings.[14] Many of the characteristics of Tribunal review proceedings parallel litigation in a court,[15] and are aptly described as quasi-judicial.[16] Common law legal professional privilege, whether in the form of advice privilege or litigation privilege, operates in Tribunal proceedings.

    [14] Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49, per McHugh J at [44], Kirby J at [85] and Callinan J at [112].

    [15] Farnaby at [21]-[22].

    [16] Waterford per Mason and Wilson JJ at [6]-[7].

13. Citing Esso Australia Resources Limited v Commissioner of Taxation of the Commonwealth of Australia,[17] the Full Court in Ensham Resources Pty Ltd v Aioi Insurance Company Ltd[18] said at [51] -

    The privilege exists when the communication sought to be protected was created, or a document containing such a communication was created, for the dominant purpose of use in existing or reasonably anticipated judicial or quasi-judicial proceedings.

    [17] [1999] HCA 67.

    [18] [2012] FCAFC 191.

14. It is for the person claiming privilege to establish the requisite facts and, in particular, that a communication occurred, or a document was brought into existence, for the dominant purpose of either giving or obtaining legal advice, or use in, or in relation to, legal proceedings.[19] A skeletal claim that is unsupported by evidence which enables a proper assessment to be made of the correctness of the claim or whether it is supportable is not sufficient.[20]

    [19] Grant v Downs [1976] HCA 63 per Stephen, Mason and Murphy JJ at [28].

    [20] Australian Competition and Consumer Commission v NSW Ports Operations Hold Co Pty Ltd [2020] FCA 1232 at [49].

15. The privilege applies to the content of the communication. It extends to documents that reveal or allow a reader to infer the substance of the privileged communication. The party claiming privilege must establish that the communication is subject to privilege,[21] and that the communication was undertaken for the dominant purpose of obtaining or providing legal advice.[22] A client of a lawyer may assert privilege over communications with a third party where such communications are for the purposes of obtaining or providing legal advice or services in relation to actual or anticipated legal proceedings.

    [21] Perazolli v BankSA [2017] FCAFC 204 at [71]; Kennedy v Wallace [2004] FCAFC 337, per Black CJ and Emmet J at [13].

    [22] AWB Limited v Honourable Terence Rhoderic Hudson Cole [2006] FCA 571 at [44].

16. The term legal advice that is subject to privilege includes a lawyer giving a client professional legal advice as to what should prudently and sensibly be done in the relevant legal context.[23] Legal advice privilege does not extend to matters that are purely factual, administrative or commercial.[24] Litigation privilege extends to communications relating to the provision of legal services involving representation of the client in pending or anticipated legal proceedings.[25] This may include communications that “are directly related to the performance by the lawyer of his or her professional duty as legal adviser to the client”.[26]

    [23] Ibid at [100].

    [24] Australian Competition and Consumer Commission v NSW Ports Operations Hold Co Pty Ltd [2020] FCA 1232 at [40].

    [25] Ibid at [41].

    [26] Kenquist Nominess Pty Limited v Campbell (No 5) [2018] FCA 853 at [15]-[16].

17. The professional nature of the legal advising, as well as the legal focus and the dominant purpose of the communication are important threshold considerations.[27] These are matters for evidence and proof. It is not sufficient to merely point to the existence of a communication between a lawyer and a client.  There is a requirement for focused and specific evidence in order to ground a claim for legal professional privilege,[28] “verbal formulae and bare conclusory assertions of purpose are not sufficient”[29] –

    The purpose for which a communication is made is a question of fact to be determined objectively from the nature of the relevant communication, the content of the communication, the relevant commercial context and the relationships between the parties.[30]

    [27] Ibid at [101].

    [28] Perazolli v BankSA [2017] FCAFC 204 at [71]; Kennedy v Wallace [2004] FCAFC 337, per Black CJ and Emmet J at [71].

    [29] Barnes v Commissioner for Taxation [2007] FCAFC 88 at [18].

    [30] BWO19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 181 at [60]-[64].

18. 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

1. 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.

2. 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.

3. On 20 May 2019, Ms Howard produced a report to EML in respect of Mr Carpenter.[39]

   [39] T26.

4. On 17 June 2019, Mr Carpenter signed an authority permitting EML to provide Prail Lawyers with information, notes or records.

5. On 20 October 2020, EML gave Mr Carpenter notice that it intended to review liability to pay compensation in his case.

6. 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.

7. 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.

8. 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.

9. On 4 March 2021, Mr Tierney requested reconsideration of the determination relating to s 16 and s 19 of the SRC Act. In so doing he asserted that the decision was not in accord with the opinions of a number of treatment providers, including Ms Howard.[41]

   [41] T47 folio 546.

10. On 9 March 2021, EML acknowledged receipt of a request for reconsideration of the determination under s 24 and s 27 of the SRC Act.

11. On 19 March 2021, EML issued a reconsideration decision in which it affirmed the determinations under s 16, s 19, s 24 and s 27 of the SRC Act. The decision-maker referred to s 7(7) of the SRC Act and decided that there was no present injury. In this decision, the decision-maker expressly referred to Mr Carpenter’s treating doctor’s clinical records, the history of medical and psychological consultations in respect of his mental health and related treatments, including by Ms Howard.[42]

    [42] T49 folio 552.

12. On 4 May 2021, Mr Tierney lodged an application for review of EML’s reconsideration decision.

13. It was in the course of the resulting proceedings that, on 8 July 2021, at EML’s request, Ms Howard was summonsed to produce relevant records, including clinical notes of consultations with Mr Carpenter. Objections to the scope of the summons were made on Mr Carpenter’s behalf. On 23 July 2021, the parties were heard on this point and the objections were not upheld.

14. On 29 July 2021, Mr Carpenter signed a statement in which he referred to the treatment he obtained from Ms Howard, which was paid for by Comcare. This statement was given to the Tribunal on 30 July 2021 by his legal representative.

15. On 21 September 2021, Ms Howard produced documents pursuant to the 8 July 2021 summons. Access orders were issued on 24 September 2021, granting Mr Carpenter first access.

16. On 30 September 2021, Mr Tierney lodged an objection to EML being granted access to specific records in the documents Ms Howard produced on grounds of legal professional privilege. A written Outline of Submissions in support of the objections was given to the Tribunal on 18 October 2021. Written submissions were filed for the ACT on 21 October 2021.

17. The parties were heard on these issues in a directions hearing on 26 October 2021.

    Consideration

18. 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.

19. 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.

20. 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.

21. 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.

22. 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.

23. 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.

24. 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.

25. 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.

26. Even though the records do not disclose specific details, it can be assumed or inferred that Mr Carpenter sought and obtained advice from lawyers he retained from time to time in respect of compensation related matters. Beyond that assumption, it is not possible to make detailed findings in respect of the circumstances in which Mr Carpenter obtained legal advice from his lawyer, the scope or purposes of the substantive advice or information provided, or the content and dominant purpose of the communications between them.

27. As a proper assessment cannot be made of the circumstances in which the legal matters Mr Carpenter disclosed to Ms Howard arose, or if the communications between Mr Carpenter and his lawyers were for the dominant purpose of providing legal advice or legal services in respect of the Tribunal or any other legal proceedings, the privilege claim in respect of the records set out in Table 1 may fail for want of a proper factual basis supported by evidence.

28. Even if it is assumed that Mr Carpenter sought and obtained legitimate legal advice from his lawyers in respect of his compensation claim and related legal processes in the ordinary way,[43] the privilege claimed will only apply if the matters noted by Ms Howard disclose the content of confidential communications between Mr Carpenter and his lawyers without express or implied waiver.

    [43] See, for example, BWO19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 181 at [63].

29. The controversial records cover a period from 7 February 2019 to 10 February 2021. It is important to note that Mr Carpenter’s application for review was lodged on 4 May 2021. This was preceded by a reconsideration decision on 19 March 2021, a primary decision on 15 February 2021 and a review of Mr Carpenter’s compensation claim which commenced on or about 20 October 2020. Only 3 of the contested records were made during this period. The remaining contested records were made in 2019, well before the circumstances that resulted in these proceedings. While the Tribunal proceedings formally commenced on 4 May 2021, it may be accepted that such proceedings may have been anticipated from the commencement of EML’s review of Mr Carpenter’s compensation claim.

30. As will appear, I am satisfied that, at the highest, the matters Ms Howard noted do not disclose any more than Mr Carpenter’s expectations of meetings with his lawyers and, without disclosing specific details, his interpretation or understanding of the gist of advice he was given. Specific details of legal advice that was obtained by Mr Carpenter, including advice in respect of conclusions and any related rationale, are not disclosed. Ms Howard’s notes disclose no more than Mr Carpenter’s opinions, interpretations or summations of legal advice he purportedly obtained, and such descriptions are at a remove from the actual communications that are protected by legal professional privilege. On the present materials, an assessment of the accuracy of Mr Carpenter’s descriptions cannot be made against the content of legal communications actually provided to him by his lawyer under protection of privilege. Considering the lack of materials to support the privilege claim and the brevity of the matters recorded by Ms Howard, particularly the lack of specific details in the notes she made of matters disclosed by Mr Carpenter, I think it is unlikely that privilege applies.

31. Even if I am wrong about that, and the content of Ms Howard’s notes and the gist of legal communications Mr Carpenter purportedly described are protected by privilege as claimed, I am satisfied that Mr Carpenter’s disclosure of such information in the context of Ms Howard’s psychological treatment consultations amounts to an implied waiver of privilege and his conduct is not consistent with maintenance of the confidentiality the privilege protects.

32. This is so for two reasons. Firstly, even though Mr Carpenter’s disclosures occurred in a therapeutic setting which he may have considered to be confidential, the disclosures stand contrary to maintenance of confidentiality over the matters disclosed. This amounts to an implied waiver of privilege. Secondly, it would be unfair to allow Mr Carpenter to rely on Ms Howard’s assessment of his condition, informed by all of the matters he disclosed to her in clinical consultations, but to deny the ACT access to all of the matters he disclosed in that therapeutic setting.

33. There is no evidence from Mr Carpenter addressing the reasons underlying the disclosures he made to Ms Howard in respect of legal matters. That being so, it is not possible to determine if he intended (or did not intend) to waive privilege. His intentions are not the only consideration.

34. Mr Carpenter knew, or had reason to know, that matters he disclosed to Ms Howard in a therapeutic context may subsequently contribute to her assessment of his condition. On 20 May 2019, Ms Howard provided a report to EML about the diagnosis of Mr Carpenter’s psychological condition and factors that were contributing to it. Mr Carpenter also had reason to know or to expect that Ms Howard’s records might be called upon in legal proceedings relating to his claim.

35. As I have said, Mr Carpenter retained Prail Lawyers, Gabbedy Milson Lee and Ken Cush & Associates at various times from February 2019. While it is not clear if he was advised about the possibility Ms Howard’s records might be called for in legal proceedings relating to his compensation claim, one would expect such matters to be traversed in legal advice dealing with prospective legal proceedings relating to his claim. Furthermore, I note that on 19 December 2019, following lodgement of Mr Carpenter’s compensation claim for permanent impairment by his then lawyer, Mr Gabbedy,[44] Dr Somasundaram provided a medical report to EML on 17 December 2019[45] and his clinical records were provided to EML on 19 December 2019.[46] It can be assumed that Mr Carpenter was aware of these developments in his claim processes. In these circumstances, Mr Carpenter’s repeated disclosures to Ms Howard of legal matters that played on his mind are not consistent with maintaining the confidentiality protected by privilege.

    [44] T28 and T28.1.

    [45] T30.

    [46] T31.

36. It is important to observe that once a patient claims compensation, relevant records created in a therapeutic context may be called upon in legal proceedings relating to their claim. While patients might expect or believe that whatever they disclose to their treatment provider, whether a doctor, a psychiatrist or a psychologist, is confidential, the records of any such treatment provider may well be called upon, or be required to be produced, in proceedings relating to a claim for compensation. The importance of confidentiality in the therapeutic relationship between a patient and a treatment provider must be recognised. This allows for full and frank disclosure of all relevant matters. It is also important to ensure all records with apparent relevance to a person’s compensation claim are able to be examined in preparation for legal proceedings relating to the claim. In recognition of the competing interests in privacy and full disclosure, the Tribunal has powers to issue confidentiality orders preventing publication or disclosure of such materials where there is a good reason to do so. Furthermore, where medical records are produced under compulsion, they must not be used for any other purpose than the legal proceedings in which they are required to be produced.

37. There are a number of issues about which findings must be made in the Tribunal proceedings. For present purposes, it is not necessary to dwell on issues relating to s 7(7) of the SRC Act and whether Mr Carpenter made a wilful and false representation about not having previously suffered from the disease for which he has claimed compensation.

38. That aside, the dispute about Mr Carpenter’s entitlement to compensation turns, in part at least, on the extent to which factors outside his previous employment, including processes relating to his claim for compensation, causally contributed to his psychological condition and any related symptoms, impairment or incapacity for work in particular.

39. It will be necessary for the Tribunal to make findings for the purposes of s 5A(1)(a) and s 5B of the SRC Act in respect of a ‘disease’. This involves an examination of materials relating to factors that causally contributed to Mr Carpenter’s psychological ailment, having regard to matters affecting his health and other matters set out in s 5B(2). It will be necessary to determine if the relevant causal nexus with the employment remains unbroken.[47]

    [47] Woodhouse v Comcare [2021] FCAFC 95 at [109].

40. Necessarily, this involves deciding if Mr Carpenter’s previous employment contributed to a significant degree to the psychiatric ailment for which he claimed compensation, and whether that causal nexus persists as at 15 February 2021 and presently. This requires careful consideration of factors that have causally contributed to Mr Carpenter’s psychiatric ailment over time and have affected any related symptoms, impairment and incapacity for work he has experienced. In this assessment it is important to carefully consider the extent to which, if at all, other factors, such as legal and other processes relating to his compensation claim, causally contributed to his psychiatric ailment from time to time.

41. Commonly, the identification of such factors and the extent to which each has contributed to the ailment or intruded upon the nexus with employment, requires examination and assessment of relevant medical materials and records. Where symptoms and contributory causes may have occurred over a period of time, a longitudinal view may be necessary when assessing whether the causal nexus with employment persists. This is especially so in the context of variations in symptoms consequent to events in Mr Carpenter’s life, including processes relating to his compensation claim.

42. These are matters of fact and degree that turn on relevant medical records and opinions. It is in this regard that the clinical notes of Ms Howard may have particular relevance, particularly in respect of stressors that may have affected Mr Carpenter’s mental health from time to time.

43. Mr Carpenter’s disclosure of legal matters to Ms Howard in a therapeutic setting may reveal concerns that played on his mind and may have affected his psychological state at the particular time. Such disclosures can be expected to influence Ms Howard’s assessment of factors affecting his psychological condition from time to time. Ms Howard’s clinical assessment is a relevant consideration when assessing or reviewing his compensation claim. It would be unfair to allow Mr Carpenter to rely on Ms Howard’s assessment in full knowledge of the matters he disclosed, but to deny the ACT access to such material.

44. Ms Howard may be called as a witness to give evidence about such matters and, as a treating psychologist, her clinical notes may be relevant to a detailed examination of factors that contributed to Mr Carpenter’s psychological condition from time to time. It is in this context, and in consideration of the ACT’s written submissions on this point, that Ms Howard’s notes of Mr Carpenter’s descriptions of and concerns about legal matters relating to his compensation claim may have material relevance.

45. To my mind, maintaining privilege over Ms Howard’s clinical notes of Mr Carpenter’s disclosures about legal matters relating to his claim in therapeutic consultations she conducted is likely to be inconsistent with him relying upon Ms Howard’s opinions about factors that have contributed to his ailment and related symptoms that are derived from those consultations.

46. 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

47. 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

Date(s) of hearing:	26 October 2021
Solicitors for the Applicant:	Mr Sam Tierney, Ken Cush and Associates
Solicitors for the Respondent:	Mr Ben Mason, Moray Agnew