Colefax v Department of Education and Communities
[2013] NSWADT 75
•11 April 2013
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Colefax v Department of Education and Communities [2013] NSWADT 75 Hearing dates: On the papers Decision date: 11 April 2013 Jurisdiction: General Division Before: P H Molony, Judicial Member Decision: (1) Affirm the decision of the agency with respect to the client legal privilege claim; and,
(2) Otherwise set aside the decision and remit to the agency for reconsideration on the basis that it has not conducted reasonable search in the circumstances.
Catchwords: Government information public access - reasonable and necessary search for information - adequacy of - client legal privilege Legislation Cited: Administrative Decisions Tribunal Act 1997
Evidence Act 2003
Freedom of Information Act 1989
Government Information (Public Access) Act 1999
Health and Other Services (Compensation) Act 1995 (C'th)Cases Cited: AWB v Cole [2006] FCA
Director General, Attorney General's Department v Cianfrano (GD) [2006] NSWADTAP 26
Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409
FCT v Pratt Holdings [2003] FCA 6 Fitzpatrick v NSW Office of Liquor and Gaming [2010] NSWADT 72
McGuirk v University of New South Wales [2011] NSWADT 169
Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357
Tziolas v NSW Department of Education and Communities [2012]Category: Principal judgment Parties: Margaritte Colefax (Applicant)
Department of Education and Communities (Respondent)Representation: W Blunt, (Applicant,agent)
M Moore, (Respondent)
File Number(s): 123069
reasons for decision
Background
Ms Colefax is an employee of the Department of Education and Communities (the Agency). Since 2008 she has been in dispute with the Agency concerning its treatment of her. She had made a number of claims against it under workers compensation legislation. There have been proceedings between her and the Agency in both the Workers Compensation Commission and the Industrial Relations Commission.
It is not disputed that Ms Colefax has made a series of application to access information under the Government Information (Public Access) Act 1999 (the GIPA Act) or its predecessor the Freedom of Information Act 1989 (the FOI Act). She alleges that she has been refused access to that information as an employee and that the Agency required her to seek access to the information more formally.
These reasons relate an application for access to information under the GIPA Act Ms Colefax made on 31 January 2012 and sought access to:
All information (in the broadest sense) held by the Department with regard to an alleged workers compensation payment made on or about 14 June 2011 to Margaritte Colefax as detailed in a letter from Mr Michel dated 14 June 2011 included but not limited to: the referenced Medicare Notice of Settlement, all instruction to Mr Michel or others regarding the payment, the financial payment authorisation form including all signatures and any attached or other supporting documents and all information exchanged with GIO General Limited or Allianz of other third parties. The information is to cover the period 1 January 2011 to 30 January 2012.
On 7 March 2012 the Agency determined to grant Ms Colefax access in part to the information she sought. The Agency claimed that a number of documents - the nature of which it did not identify - were the subject of client legal privilege, which the Agency was not prepared to waive. As a consequence the Agency refused to release those documents to Ms Colefax.
On 27 March 2012 Ms Colefax filed an application with this Tribunal seeking external review of that decision. In addition to disputing that the Agency could rely on client legal privilege, Ms Colefax asserted that the Agency has not produced and/or made a sufficient search for information within the scope of her request. Those documents are:
(a) A Medicare Notice of Judgement or Settlement; and
(b) Terms of settlement referred to in a letter from Centrelink dated 16 May 2011.
The Government Information (Public Access) Act 2009
The GIPA Act commenced operation on 1 July 2010. The objects of the Act are set out in (s 3(1) -
In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by:
(a) authorising and encouraging the proactive public release of government information by agencies, and
(b) giving members of the public an enforceable right to access government information, and
(c) providing that access to government information is restricted only when there is an overriding public interest against disclosure.
"Government information' is given a wide meaning (s 4) being 'information contained in a record held by an agency.' 'Agency' is also defined in s 4.
Certain information relating to the functions of some government agencies is 'excluded information' for the purposes of the GIPA Act (e.g. the judicial functions of courts and the complaint handling and investigative functions of various government agencies). A valid access application cannot be made for excluded information (s 43). The functions and agencies concerned are set out in Schedule 2 to the Act..
The Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure (s 5). Applicants for access to government information have a legally enforceable right to be provided with access to that information, unless there is an overriding public interest against disclosure (s 9).
In the case of some specified types of information it is conclusively presumed that there is an overriding public interest against disclosure (s 11 and s 14). Those types of information are set out in Schedule 1. Clause 5 of Schedule 1 of the Act relevantly provides -
(1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege), unless the person in whose favour the privilege exists has waived the privilege.
(2) If an access application is made to an agency in whose favour legal professional privilege exists in all or some of the government information to which access is sought, the agency is required to consider whether it would be appropriate for the agency to waive that privilege before the agency refuses to provide access to government information on the basis of this clause.
(3) A decision that an agency makes under subclause (2) is not a reviewable decision under Part 5.
When an access application is made to an agency the Act sets out how it is to be processed and considered, and specifies time limits for those processes. Among the obligations on an agency is that in s 54 which requires the Agency to search for information. It provides -
1) The obligation of an agency to provide access to government information in response to an access application is limited to information held by the agency when the application is received.
(2) An agency must undertake such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received. The agency's searches must be conducted using the most efficient means reasonably available to the agency.
(3) The obligation of an agency to undertake reasonable searches extends to searches using any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically.
(4) An agency is not required to search for information in records held by the agency in an electronic backup system unless a record containing the information has been lost to the agency as a result of having been destroyed, transferred, or otherwise dealt with, in contravention of the State Records Act 1998 or contrary to the agency's established record management procedures.
(5) An agency is not required to undertake any search for information that would require an unreasonable and substantial diversion of the agency's resources.
An access application is to be determined in accordance with s 58 -
(1) An agency decides an access application for government information by:
(a) deciding to provide access to the information, or
(b) deciding that the information is not held by the agency, or
(c) deciding that the information is already available to the applicant (see section 59), or
(d) deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information, or
(e) deciding to refuse to deal with the application (see section 60), or
(f) deciding to refuse to confirm or deny that information is held by the agency because there is an overriding public interest against disclosure of information confirming or denying that fact.
Note. These decisions are reviewable under Part 5.
(2) More than one decision can be made in respect of a particular access application, so as to deal with the various items of information applied for.
(3) If an agency finds that information or additional information is held by the agency after deciding an access application, the agency can make a further decision that replaces or supplements the original decision, but cannot be required to make a further decision in such a case. The further decision can be made even if the period within which the application is required to be decided has expired.
In exercising functions under the Act s 3(2) instructs that -
It is the intention of Parliament:
(a) that this Act be interpreted and applied so as to further the object of this Act, and
(b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.
Section 80 sets out a series of decision that are reviewable decisions under the Act. It provides -
The following decisions of an agency in respect of an access application are reviewable decisions for the purposes of this Part:
(a) a decision that an application is not a valid access application,
(b) a decision to transfer an access application to another agency, as an agency-initiated transfer,
(c) a decision to refuse to deal with an access application (including such a decision that is deemed to have been made),
(d) a decision to provide access or to refuse to provide access to information in response to an access application,
(e) a decision that government information is not held by the agency,
(f) a decision that information applied for is already available to the applicant,
(g) a decision to refuse to confirm or deny that information is held by the agency,
(h) a decision to defer the provision of access to information in response to an access application,
(i) a decision to provide access to information in a particular way in response to an access application (or a decision not to provide access in the way requested by the applicant),
(j) a decision to impose a processing charge or to require an advance deposit,
(k) a decision to refuse a reduction in a processing charge,
(l) a decision to refuse to deal further with an access application because an applicant has failed to pay an advance deposit within the time required for payment,
(m) a decision to include information in a disclosure log despite an objection by the access applicant (or a decision that the access applicant was not entitled to object).
Persons aggrieved by reviewable decisions have a number of options available to press their access applications. First, they may ask the agency to conduct an internal review under s 82 within 20 days of the original decision (s 83). The internal review is to be completed within 15 working days of receipt (s 86), failing which the agency is deemed to have made the original decision again (s 86(5)). A decision made on internal review is itself a reviewable decision, although it is not possible to seek an internal review of an internal review (s 88).
Secondly, an access applicant who is aggrieved by a reviewable decision may seek review of the decision by the Information Commissioner under s 89. Where the person aggrieved is not the access applicant he or she must first seek an internal review (s 89(2)). A review by the Information Commissioner must be sought within 8 weeks of notice of decision being given to the access applicant. The Information Commissioner may then make a recommendation to the agency (s 92) including a recommendation that the agency reconsider the matter and make a new decision (s 93(1)), and a recommendation that there is not an overriding public interest against disclosure (s 94). Reconsideration following a recommendation is by way of internal review, where there has been no previous internal review, or by means of new decision where there had been a previous internal review (s 93).
Thirdly a person aggrieved may seek a review by the Tribunal (s 100). When read with s 38 of the Administrative Decisions Tribunal Act 1997 this provision confers jurisdiction on the Tribunal to review reviewable decisions under the GIPA Act. Such applications are to be made within 8 weeks of the decision (s 101(1)) or within 4 weeks of the completion of a review by the Information Commissioner (s 101(2)). The Tribunal has power to extend the time for the making of a review application under s 101(3) when it is of the opinion that the person making the application, "has provided a reasonable excuse for the delay in making the application."
Once a decision is subject to review before the Tribunal it cannot be the subject of a review by the Information Commissioner (s 98).
In any review of a reviewable decision s 105 places the onus of justifying the decision on the agency concerned. It provides -
(1) In any review under this Division concerning a decision made under this Act by an agency, the burden of establishing that the decision is justified lies on the agency, except as otherwise provided by this section.
(2) If the review is of a decision to provide access to government information in response to an access application, the burden of establishing that there is an overriding public interest against disclosure of information lies on the applicant for review.
(3) If the review is of a decision to refuse a reduction in a processing charge, the burden of establishing that there is an entitlement to the reduction lies on the applicant for review.
The Tribunal's function on review under s 63 of the Administrative Decisions Tribunal Act 1997 is to make the correct and preferable decisions having regard to the material before it before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any relevant material before it at the time of the review: Drakev Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409.
The Information Commissioner and any person who could be aggrieved by a decision on review have a right to appear and be heard in review proceedings (s 104). The Information Commissioner has not exercised that right in this case.
Issues requiring determination
In order to decide this matter the following issues have to be determined:
- Whether the information concerning that the respondent claims is conclusive presumed to be subject to an overriding public interest against disclosure is subject to a valid claim of legal professional privilege.
- The adequacy of the search undertaken by the Agency for a Medicare Notice of Settlement and terms of settlement relating to the resolution of her dispute with the Agency.
Client Legal Privilege
The Agency has provided a schedule of documents it claims are the subject of client legal privilege. In submissions Ms Colefax pressed for the release of the document at pages 33-34, 75, 138-139, 142 to 146.
Clause 5 of Schedule 1 of the GIPA Act provides that it is to be conclusively presumed that there is an overriding public interest against disclosure of information that would be privileged from production in legal proceedings on the ground of client legal privilege, unless that privilege is waived.
In Director General, Attorney General's Department v Cianfrano (GD) [2006] NSWADTAP 26 the Appeal Panel held that legal professional privilege for purpose of the Freedom of Information Act 1987 was legal professional privilege at common law, rather than client legal privilege under Division 1 of Part 3.10 of the Evidence Act 1995. In Fitzpatrick v NSW Office of Liquor and Gaming [2010] NSWADT 72 I found that given the subsequent enactment of s 131A of the Evidence Act that , at [70] -
... the test for whether a document would be "privileged from production in legal proceedings on the ground of legal professional privilege" in proceedings in NSW courts, is now determined by the client legal privilege provisions in Division 1 of Part 3.10 of the Evidence Act 1995 and not by the common law of legal professional privilege.
That conclusion is not one with which all other members of the Tribunal have agreed: see for example McGuirk v University of New South Wales [2011] NSWADT 169.
Since the commencement of the GIPA Act there have been a number of decisions dealing with the issue of client legal privilege, in which the issue of whether the common law or evidence Act provisions apply has not been addressed. This is so because the conclusion would have been the same no matter which law was applied.
For myself, I consider that the question of whether or not information is privileged from production in legal proceedings on the ground of client legal privilege is to be determined by reference to the client legal privilege provisions in Division 1 of Part 3.10 of the Evidence Act 1995. This is so for the reasons I gave in Fitzpatrick and because the legislature in the GIPA Act has specifically referred to the term "client legal privilege," which is that used in the Evidence Act. In contrast, the Freedom of Information Act 1987 used the term legal professional privilege. The use of the Evidence Act terminology in my view evidences an intention that those provisions apply.
Section 118 of the Evidence Act 1995 provides:
'Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of:
(a) a confidential communication made between the client and a lawyer, or
(b) a confidential communication made between 2 or more lawyers acting for the client, or
(c) the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person,
for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.'
A 'dominant purpose' is one that predominates over other purposes; it is the prevailing or paramount purpose: FCT v Pratt Holdings at 279-280 per Kenny J at [30], AWB v Cole [2006] FCA 1234 per Young J at [44]. When applying the dominant purpose test an appropriate starting point is to ask what was the intended use or uses of the document which accounted for it being brought into existence: Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357 per Finn J v; AWB v Cole [2006] FCA 1234 per Young J at [44].
Section 117 contains definitions of confidential communication, confidential document, client and lawyer. Relevantly it provides:
(1) In this Division:
client includes the following:
(a) a person or body who engages a lawyer to provide legal services or who employs a lawyer (including under a contract of service),
(b) an employee or agent of a client,
(c) an employer of a lawyer if the employer is:
(i) the Commonwealth or a State or Territory, or
(ii) a body established by a law of the Commonwealth or a State or Territory,
(d) ...
confidential communication means a communication made in such circumstances that, when it was made:
(a) the person who made it, or
(b) the person to whom it was made,
was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law.
confidential document means a document prepared in such circumstances that, when it was prepared:
(a) the person who prepared it, or
(b) the person for whom it was prepared,
was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law.
lawyer means:
(a) an Australian lawyer, and
(b) an Australian-registered foreign lawyer, and
(c) an overseas-registered foreign lawyer or a natural person who, under the law of a foreign country, is permitted to engage in legal practice in that country, and
(d) an employee or agent of a lawyer referred to in paragraph (a), (b) or (c).
...
In Tziolas v NSW Department of Education and Communities [2012] NSWADT 69 N.Isenberg JM set out the following useful summary -
For legal professional privilege to apply under the 'dominant purpose' test, a communication must have been created or brought into existence, ie made, drawn up, written, or prepared, for the 'dominant' purpose of either obtaining or giving legal advice, or in connection with pending or reasonably contemplated or apprehended legal proceedings.
31In Chan the Tribunal referred to the 'categories of legal professional privilege' outlined by Lockhart J in Trade Practices Commission v Sterling (1979) 36 FLR 244 (Sterling) at 245-246 as including:
(a) Any communication between a party and his professional legal adviser if it is confidential and made to or by the professional adviser in his professional capacity and with a view to obtaining or giving legal advice or assistance; notwithstanding that the communication is made through agents of the party and the solicitor or the agent of either of them. ...
(b) Any document prepared with a view to its being used as a communication of this class, although not in fact so used. ...
( c) Communications between the various legal advisers of the client, for example between the solicitor and his partner or his city agent with a view to the client obtaining legal advice or assistance. ...
(d) Notes, memoranda, minutes or other documents made by the client or officers of the client or the legal adviser of the client of communications which are themselves privileged, or containing a record of those communications, or relate to information sought by the client's legal adviser to enable him to advise the client or to conduct litigation on his behalf. ...
(e) Communications and documents passing between the party's solicitor and a third party if they are made or prepared when litigation is anticipated or commenced, for the purposes of the litigation, with a view to obtaining advice as to it or evidence to be used in it or information which may result in the obtaining of such evidence. ...
(f) Communications passing between the party and a third person (who is not the agent of the solicitor to receive the communication from the party) if they are made with reference to litigation either anticipated or commenced, and at the request or suggestion of the party's solicitor; or, even without any such request or suggestion, they are made for the purpose of being put before the solicitor with the object of obtaining his advice or enabling him to prosecute or defend an action. ...
(g) Knowledge, information or belief of the client derived from privileged communications made to him by his solicitor or his agent.
32 Some of the documents for which the claim of privilege has been made include communications between the respondent's officers and its internal legal advisers. Young J in AWB Ltd v Cole [at 46] summarised the principles relating to communications between government agencies and their salaried legal officers:
Legal professional privilege is capable of attaching to communications between a salaried legal adviser and his or her employer, provided that the legal adviser is consulted in a professional capacity in relation to a professional matter and the communications are made in confidence and arise from the relationship of lawyer and client: Waterford at CLR 96; ALR 705 per Dawson J; see also Deane J at CLR 79-82, ALR 689-92. Some cases have added a requirement that the lawyer who provided the advice must be admitted to practice: see Dawson J in Waterford at CLR 96; ALR 705; Galway v Constable [2002] 2 Qd R 146 at 150 ; [2001] QSC 180; Glengallan Investments Pty Ltd v Arthur Andersen [2002] 1 Qd R 233 at 245 ; [2001] QCA 115. However, in Commonwealth v Vance (2005) 158 ACTR 47 ; [2005] ACTCA 35, the Full Court (Gray, Connolly and Tamberlin JJ) did not regard the possession of a current practising certificate as an essential precondition to the availability of legal professional privilege: at [23]-[35]. The same view was taken by Lee J in Candacalat [99], by Gillard J in Australian Hospital Care (Pindara) Pty Ltd v Duggan [1999] VSC 131 at [111], and by Downes J in Re McKinnon and Secretary, Department of Foreign Affairs and Trade (2004) 86 ALD 780 ; [2004] AATA 1365 at [51].
33 Downes J in Re McKinnon and Secretary, Department of Foreign Affairs and Trade [2004] AATA 1365; (2004) 86 ALD 780 at 51 did not consider the possession of a current practising certificate as being an 'essential precondition' to a claim of privilege made in relation to an employed Government lawyer. As His Honour pointed out at [51] the real test is 'whether the advice had the necessary quality of being independent advice'.
I have read all of the documents which the Agency claims are subject to client legal privilege. All of them are emails or attachments to emails. Specifically:
- The emails at 33-34 are emails between officers of the Agency, including its legal officer, concerning information relating to proceedings brought by Ms Colefax.
- The email at page 75 is a request for legal advice from the Agency's insurer to its solicitors.
- The emails at 138 to 139 and 141 to 142 are exchanges between officers of the Agency and its legal officer providing information relevant to a dispute between Ms Colefax and the Agency.
- The emails at pages 143 to 144 are communication between the Agency and its solicitors, and between agency officers concerning a request for instructions. Page 145 and 146 is a document concerning which instructions were requested.
I am satisfied that each of those documents is the subject of a proper claim for client legal privilege and that the Agency has declined to waive that privilege. I add that I would reach the same conclusions were I considering legal professional privilege at common law.
Ms Colefax however, submits that the client legal privilege relation to those documents has been lost due to misconduct. Section 125 of the Evidence Act 1995 provides -
(1) This Division does not prevent the adducing of evidence of:
(a) a communication made or the contents of a document prepared by a client or lawyer (or both), or a party who is not represented in the proceeding by a lawyer, in furtherance of the commission of a fraud or an offence or the commission of an act that renders a person liable to a civil penalty, or
(b) a communication or the contents of a document that the client or lawyer (or both), or the party, knew or ought reasonably to have known was made or prepared in furtherance of a deliberate abuse of a power.
(2) For the purposes of this section, if the commission of the fraud, offence or act, or the abuse of power, is a fact in issue and there are reasonable grounds for finding that:
(a) the fraud, offence or act, or the abuse of power, was committed, and
(b) a communication was made or document prepared in furtherance of the commission of the fraud, offence or act or the abuse of power,
the court may find that the communication was so made or the document so prepared.
(3) In this section:
power means a power conferred by or under an Australian law
The misconduct on which Ms Colefax relies is the alleged failure by the Agency to comply with s 23 of the Health and Other Services (Compensation) Act 1995 (C'th). That provision required the Agency to give to the Chief Executive of Medicare a notice of settlement relating to the settlement of Ms Colefax's workers compensation proceedings against the Agency within 28 days of settlement, giving specified details of the compensation paid by the Agency. Section 26 provides, among other things, that failure to comply with s 23 is a strict liability offence carrying a penalty of 6 months imprisonment.
Ms Colefax submits that because the Agency has said that there is no signed notice of settlement relating to the settlement of those proceedings, in breach of s 23, the privileged has been lost due to misconduct.
I do not accept this submission. Having read the documents in issue I am not satisifed that they were prepared in the furtherance of an offence under s 23 of the Health and Other Services (Compensation) Act 1995 (C'th).
It follows that I accept that the information in issue is subject to a valid claim of if client legal privilege. As a consequence it is conclusively presumed that that there is an overriding public interest against its disclosure.
Adequacy of Search
Ms Colefax also seeks orders, in accordance with her original request, that the Agency provide her with the following information:
- the Medicare Notice of Settlement (the receipt of which by the Agency' Injury Management Centre is specifically referred to in a letter from the Agency' to Ms Colefax dated 14 June 2011). ; and
- the "terms of settlement" referred to in a letter dated 16 May 2011 from Centrelink to the Department. It is unclear from the context precisely what document Centrelink is referring to by that term.
Copies of a draft Notice of Judgment and Settlement, which Ms Colefax identifies as having been seen and returned to Allianz by Mr Blunt for correction and resubmission to the Applicant on 23 May 2011, have been released to the Ms Colefax. The information to which Ms Colefax seeks access is that in the completed form, which she suggests is that referred to in the letter of 14 June 2011.
Further an email from Mr Michel to the Agency's solicitors dated 6 June 2011 attaches a "Notice of Settlement" and seeks confirmation that there are no Medicare deductions to be made from the settlement amount. Given the timing, the description of the attachment and the nature of this email, it appears unlikely to relate to the draft notice of settlement. The attached notice of settlement is not among the materials suppled to Ms Colefax.
In the internal review decision no reference was made to the fact that the Agency had been unable to locate the notice of settlement referred to in Mr Michel's letter of 14 June 2012. Rather the letter advised that 163 pages of relevant information had been identified as relevant to the access application.
In response to a direction by the Tribunal that it provide evidence and submissions explaining why it does not hold a signed Medicare Notice of Settlement the agency, on 31 July 2012, made the following submission -
The Department made inquiries with relevant officers and was advised by the Manager, Work Health and Safety Corporate Support that "Allianz verbally advised the Department that no deductions were required and therefore the Department did not require a copy of the completed document to make any deductions to the settlement". As such, the Department advises that in accordance with section 58(1)(b) it does not hold a copy of the 'signed' Medicare Notice of Settlement as mentioned in the letter of 14 June 2011 provided by the Applicant with the original GIPA application and referred to in page 35 of `Attachment D' that was filed with the ADT on 31 May 2012.
The assertions made in those submissions are not supported by any evidence from those involved, and are at odds with Mr Michel's email of 6 June 2011 and letter of 14 June 2011. Mr Michel's email of 6 June 20111 demonstrated that at that time that the Agency held an electronic copy of a notice of settlement, which was attached to that email. Whether there were further attachments formed part of that notice is not clear.
The fact that no deduction was required does not detract from the fact that the Agency held a notice of settlement as of 6 June 2011, which had not been located or accounted for. Given the evidence a reasonable search in the circumstances would necessarily include a detailed search for that document, rather than a simple acceptance of a statement no deduction was required. I would add that if no deduction from the settlement sum was required by the Health Insurance Commission, one would expect there to be a notice of charge to the effect.
It follows that I am not persuaded that the agency had demonstrated that it carried out a reasonable search for the Medicare Notice of Settlement. As the Agency bears the burden of onus of demonstrating that it did undertake such a search, and has not done so, I am not satisfied it has conducted necessary, reasonable searches.
I have reached the same conclusion with respect to the terms of settlement referred to in the Centrelink letter. It impresses me as highly probable that that the agency would hold terms of settlement, or a similar information, concerning a settlement of a dispute with an employee. There are obligations on an agency settling such a matter to advise Centrelink and the Health Insurance Commission of the nature of the settlement, to enable the recovery of monies due to the public. Thus a copy of terms of settlement is be annexed to any Medicare Notice of Settlement. In those circumstances, given the lack of evidence provided by the Agency, I am not persuaded it has conducted the necessary reasonable search.
Conclusion
In the light of the above I shall
(1) Affirm the decision of the agency with respect to the legal professional privilege claim; and
(2) Otherwise set aside the decision and remit to the agency for reconsideration on the basis that it has not conducted reasonable search in the circumstances.
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Decision last updated: 11 April 2013
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