CNC v NSW Police Force - [2017] NSWCATAD 43

Civil and Administrative Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: CNC v NSW Police Force [2017] NSWCATAD 43
Hearing dates: 6 and 20 December 2016
Date of orders: 30 January 2017
Decision date: 30 January 2017
Jurisdiction: Administrative and Equal Opportunity Division
Before: Hennessy LCM, Deputy President
Decision:
1. The summons issued by CNC to NSW Police Force is set aside.
2. The confidential documents belonging to the NSW Police Force are to be returned to their solicitors.
Catchwords: PRACTICE AND PROCEDURE – summons to produce – letter of instruction and attached medical reports – client legal privilege – whether legal advice privilege applies
Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) ss 38, 48 and 67
Evidence Act 1995 (NSW), ss 117, 118, 122, 131A and 133
Cases Cited: Australian Securities & Investments Commission v Southcorp Limited [2003] FCA 804
Matthews v SPI Electricity Pty Ltd [2013] VSC 33
Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357
Shea v TruEnergy Services Pty Ltd (No 5) (2013) 303 ALR 230
Singtel Optus Pty Ltd v Weston (2011) 81 NSWLR 526
Sprayworx Pty Ltd v Homag Pty Ltd [2014] NSWSC 833
Texts Cited: Stephen Odgers, Uniform Evidence Law, (11th ed Thomson Reuters) at 698
Category: Procedural and other rulings
Parties: CNC (Applicant)\
NSW Police Force (Respondent)
Representation: Solicitors:
Applicant (self-represented)
Sparke Helmore Lawyers (Respondent)

File Number(s): 1610218
Publication restriction: Disclosure of the name of the Applicant is prohibited.Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

REASONS FOR DECISION

Overview

NSW Police Force has objected to a summons to produce documents on the ground of client legal privilege. The summons, issued by the Applicant, CNC, requested her former employer, the NSW Police Force, to produce the following documents:

All “referral Documents and notes” regarding the Independent Medical Examination by Dr Bruce Westmore that I attended on 22 October 2015.
Any documents/notes written between Norton Rose Fulbright and the NSW Police Force leading up to the medical examination of myself and after the medical examination.

NSW Police Force has produced the documents to the Tribunal for the purpose of assessing its claim for client legal privilege: Evidence Act 1995 (NSW), s 133. In my view NSW Police Force is entitled to the benefit of legal professional privilege (client legal privilege) in relation to each of the documents the subject of the summons.

Background

CNC’s substantive application is that NSW Police breached the Privacy and Personal Information Protection Act 1998 (NSW) and the Health Records and Information Privacy Act 2002 (NSW) by:

disclosing medical reports about her to their lawyers, Norton Rose Fulbright Australia, for the purpose of arranging the Independent Medical Examination; and

failing to provide CNC with copies of all the information provided to Dr Westmore or a copy of his report.

During the time of CNC’s employment with…

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: [2017] NSWCATAD 43
Decision Date: 30 January 2017

CaseChat Overview and Summary

The case of CNC v NSW Police Force arose before the Federal Court of Australia, where CNC sought a summons to compel the NSW Police Force to produce certain documents. The dispute centred on the issuance of a letter of instruction and accompanying medical reports, which CNC argued were necessary for their legal proceedings. The NSW Police Force resisted the summons, claiming the documents were protected by client legal privilege and legal advice privilege.

The primary legal issues the court had to address were whether the summons was valid and, if so, whether the legal privilege claimed by the NSW Police Force was sufficient to prevent the disclosure of the documents. The court had to consider the nature and scope of client legal privilege and legal advice privilege, and how these privileges applied to the specific documents in question.

In its reasoning, the court found that the summons was indeed valid and properly issued. However, the court determined that the documents in question were protected by client legal privilege and legal advice privilege. The court held that these privileges were applicable to the medical reports, as they contained confidential legal advice and instructions given by the NSW Police Force's legal representatives. Consequently, the court ruled that the summons should be set aside, and the confidential documents were to be returned to the NSW Police Force's solicitors.

The final orders of the court were to set aside the summons issued by CNC to the NSW Police Force and to direct that the confidential documents in question be returned to the solicitors of the NSW Police Force.

Orders

Orders of the court

1. The summons issued by CNC to NSW Police Force is set aside.

2. The confidential documents belonging to the NSW Police Force are to be returned to their solicitors.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	CNC v NSW Police Force [2017] NSWCATAD 43
Hearing dates:	6 and 20 December 2016
Date of orders:	30 January 2017
Decision date:	30 January 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Hennessy LCM, Deputy President
Decision:	1. The summons issued by CNC to NSW Police Force is set aside. 2. The confidential documents belonging to the NSW Police Force are to be returned to their solicitors.
Catchwords:	PRACTICE AND PROCEDURE – summons to produce – letter of instruction and attached medical reports – client legal privilege – whether legal advice privilege applies
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW) ss 38, 48 and 67 Evidence Act 1995 (NSW), ss 117, 118, 122, 131A and 133
Cases Cited:	Australian Securities & Investments Commission v Southcorp Limited [2003] FCA 804 Matthews v SPI Electricity Pty Ltd [2013] VSC 33 Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357 Shea v TruEnergy Services Pty Ltd (No 5) (2013) 303 ALR 230 Singtel Optus Pty Ltd v Weston (2011) 81 NSWLR 526 Sprayworx Pty Ltd v Homag Pty Ltd [2014] NSWSC 833
Texts Cited:	Stephen Odgers, Uniform Evidence Law, (11th ed Thomson Reuters) at 698
Category:	Procedural and other rulings
Parties:	CNC (Applicant)\ NSW Police Force (Respondent)
Representation:	Solicitors: Applicant (self-represented) Sparke Helmore Lawyers (Respondent)
File Number(s):	1610218
Publication restriction:	Disclosure of the name of the Applicant is prohibited.Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.