Carpenter and Australian Capital Territory (Compensation)

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.