Comcare v Foster

Case [2006] FCA 6

FEDERAL COURT OF AUSTRALIA

Comcare v Foster [2006] FCA 6

ADMINISTRATIVE LAW – application pursuant to section 44 of the Administrative Appeals Tribunal Act 1975 (Cth) from the Administrative Appeals Tribunal – claims made under the Safety, Rehabilitation and Compensation Act 1988 (Cth) – application for access to documents under the Freedom of Information Act 1982 (Cth) – claims of exemption on the ground of legal professional privilege – sections 42 and 36 of the Freedom of Information Act – documents denied exemption before the Tribunal as purely procedural – only refer to information on the public record – documents comprising letters between Comcare and its external lawyers considered – surveillance videos considered – principles governing communications between lawyer and client for the dominant purpose of giving or obtaining legal advice for the provision of legal services including representation in legal proceedings considered. 

Administrative Appeals Tribunal Act 1975 (Cth), section 44
Freedom of Information Act 1982 (Cth), Part III, sections 32, 36, 37 and 42
Safety, Rehabilitation and Compensation Act 1988 (Cth), sections 59, 68, 69, 70 and 74
Trade Practices Act 1974 (Cth), section 50

Baker v Campbell (1983) 49 ALR 385
Waterford v Commonwealth of Australia (1987) 71 ALR 673
Grant v Downs (1976) 11 ALR 577)
Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49
Re Packer and Others v Deputy Commissioner of Taxation (1983) 53 ALR 589
Commissioner of Australian Federal Police v Propend Finance Pty Limited & Ors (1996 – 1997) 188 CLR 501
Attorney-General (NT) v Maurice (1986) 161 CLR 475 at 490
Carter v Northmore Hale Davy & Leake (1995) 183 CLR 121 at 161
Bropho v Western Australia (1990) 171 CLR 1 at 17-18
The Daniels Corporation International Pty Ltd & Anor v Australian Competition and Consumer Commission (2002) 213 CLR 543
J-Corp Ltd v Australian Builders Labourers Federated Union of Workers (Western Australian Branch) (1992) 38 FCR 452
Boyes v Colins (2000) 23 WAR 123

COMCARE v CHRISTINA FOSTER

QUD 249 OF 2004

GREENWOOD J
12 JANUARY 2006

BRISBANE


IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QUD 249 OF 2004

ON APPEAL FROM THE GENERAL ADMINISTRATIVE DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY SENIOR MEMBER K L BEDDOE

BETWEEN:

COMCARE
APPELLANT

AND:

CHRISTINA FOSTER
RESPONDENT

JUDGE:

GREENWOOD J

DATE OF ORDER:

12 JANUARY 2006

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1.The appeal be allowed.

2.The decision of the Administrative Appeals Tribunal made on 11 November 2004 be set aside.

3.The question of whether the documents identified in paragraph 25 of the Reasons of the Administrative Appeals Tribunal dated 11 November 2004 are exempt under section 42 of the Freedom of Information Act 1982 (Cth) be remitted to the Administrative Appeals Tribunal for determination according to law.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QUD 249 OF 2004

ON APPEAL FROM THE GENERAL ADMINISTRATIVE…

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AGLC
Comcare v Foster [2006] FCA 6
Case
[2006] FCA 6
Decision Date

CaseChat Overview and Summary

In Comcare v Foster, Comcare, as the appellant, challenged a decision of the Administrative Appeals Tribunal (the Tribunal) that determined certain documents were not exempt from disclosure under the Freedom of Information Act 1982 (Cth) (FOI Act) on the ground of legal professional privilege. Ms Foster, the respondent, had requested access to various documents relating to her claims for compensation, which Comcare initially refused to provide under the FOI Act and the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act). Comcare argued that the documents in question were privileged and exempt from disclosure, but the Tribunal ruled that some documents were not exempt, leading Comcare to appeal.

The central legal issue was whether the documents identified by Comcare qualified for exemption from disclosure under section 42 of the FOI Act due to legal professional privilege. The Tribunal had to consider whether the documents constituted internal working documents that would reveal Comcare's deliberative processes or if they were protected by legal professional privilege. Additionally, the court had to determine whether the SRC Act or its section 59 abrogated the privilege from production of documents in legal proceedings.

The court found that the Tribunal had erred in its determination. It held that the Tribunal did not adequately consider the application of legal professional privilege to the documents in question and did not properly assess whether those documents were exempt under section 42 of the FOI Act. The court concluded that the question of whether the documents were exempt from disclosure due to legal professional privilege should be remitted to the Tribunal for reconsideration. The court allowed the appeal, set aside the Tribunal's decision, and remitted the matter for further determination according to law.

Orders

Orders of the court

1. The appeal be allowed.

2. The decision of the Administrative Appeals Tribunal made on 11 November 2004 be set aside.

3. The question of whether the documents identified in paragraph 25 of the Reasons of the Administrative Appeals Tribunal dated 11 November 2004 are exempt under section 42 of the Freedom of Information Act 1982 (Cth) be remitted to the Administrative Appeals Tribunal for determination according to law.

Background

Background to the litigation

This is an application in the original jurisdiction of the Court by way of an appeal under section 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) from a decision of the Administrative Appeals Tribunal (“the Tribunal”) by which the Tribunal determined that particular documents of the Applicant were not exempt on the contended ground of legal professional privilege, from access to the Respondent pursuant to Part III of the Freedom of Information Act 1982 (Cth) (“the FOI Act”). To avoid any confusion between the Applicant for the documents and the Applicant for relief in these proceedings, I will describe the Applicant in the proceedings as Comcare. I will describe the Respondent in the proceedings as Ms Foster.THE BACKGROUND The background facts and relevant statutory provisions are these. Comcare is a body established by sections 68 and 74 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”) and has the functions and powers conferred by sections 69 and 70 among other functions conferred by the Act. Ms Foster made claims upon Comcare for compensation in relation to incapacity and also permanent impairment on 31 March 1999 (Q1999/369) and 13 December 2002 (Q2002/1094) among other claims including an application in November 1994 (Q1994/731) all pursuant to the SRC Act. On 23 January 2003, the Respondent made an application to Comcare for the provision of copies of documents relating to those claims in these terms:“I would like to request copies of all my files, computer, email, paper notes etc. I would have files in the department with your litigation area, AAT files, section 37 ‘T’ documents, medical files, compensation files, claims for costs (files?) etc. I would like a copy of everything thank you. I last made a FOI/Section 59 request in 1995 so documents made prior to 27/5/1995, unless they were not previously supplied, are not needed. I do not know whether I was to lodge my request under FOI or Section 59 as I do not know about section 59 but can you please accept whichever will provide me with full access in the most timely manner. Can you please also ensure that Kristina King’s notes (handwritten by Kristina) of the Conciliation meeting at the AAT in June 2002 and Comcare notes of the Directions Hearing at the AAT at the end of 1998 or 1999 are included.” The reference to section 59 is a reference to section 59 of the SRC Act which, relevantly for these purposes, provides:“59 Certain document to be supplied on request(1)A relevant authority shall:(a)on request by a claimant – give to the claimant any document held by the authority that relates to the claimant’s claim; or…” The application for access to the documents (and provision of copies of documents) was made both in accordance with the provisions of Part III of the FOI Act and section 59 of the SRC Act. On 23 March 2003, the Respondent made a further request for access to “all my files under the FOI Act … from the start of my claim”. That request made reference to another claim or reference number described as “claim 26745/03”. On 8 May 2003, Comcare made a decision to release certain documents and withhold “legal advice, internal working documents in relation to legal advice and investigation documents” on the ground that those documents were exempt from disclosure by operation of section 42(1) of the FOI Act because the documents are of such a nature that they would be privileged from production in legal proceedings on the ground of legal professional privilege.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GREENWOOD J (dissent)
Accordingly, Comcare by reason of the purpose actuating the mind of Comcare’s officer, Ms King, claims all the documents listed in Annexure “KAK1” (apart from expressly deleted references – all further reference to the documents listed in Annexure “KAK1” exclude those documents in the Schedule shown with a line drawn through the particular entry) attract an exemption under the FOI Act (being the primary source of Ms Foster’s application) on the ground that those documents (and the video recordings) would be privileged from production in legal proceedings (including proceedings in the performance of the Executive’s administrative decision-making upon review in the Tribunal). The same principle applies to the specifically listed documents in Annexure “GTK1” of Exhibit 2. Before the Tribunal, Comcare abandoned the exemption based upon section 45 and conceded that the section 36 ground of exemption added nothing because its operation in the circumstances, turned upon whether the documents were exempt by operation of section 42(1) of the FOI Act. In other words, it would be contrary to public interest to disclose documents falling within section 36(1)(a) if any such documents are of such a nature that they would be privileged from production in legal proceedings on the ground of legal professional privilege. To the extent that any document within Annexure “KAK1” of Exhibit 1 withheld in reliance upon section 42(1) of the FOI Act also comprehended documents falling within section 59 of the SRC Act (and not disclosed), Comcare relied upon the privilege from production on the ground of legal professional privilege. It seems to be common ground between the parties that neither section 59 of the SRC Act nor the SRC Act otherwise expressly or by necessary implication abrogates the privilege from production of documents on the ground of legal professional privilege. THE DECISION OF THE TRIBUNAL On 11 November 2004, the Tribunal set aside the decision arising out of Comcare’s internal review and determined that:(a)a number of the documents identified in the Schedule marked Annexure “KAK1” to Exhibit 1 [17 (paragraph 25 of the Reasons)] were not exempt for the purposes of section 42 of the FOI Act;(b)apart from any document properly attracting legal professional privilege for the purposes of section 42 of the FOI Act, a number of documents identified within Annexure “KAK1” to Exhibit 1 could not be characterised as “internal working documents” for the purposes of section 36(1) of the FOI Act and that release of those documents would neither reveal the deliberative processes of Comcare nor be contrary to the public interest; (c)the surveillance videos described at E124 of the Schedule, Annexure “KAK1” to Exhibit 1, related to Ms Foster’s claim for compensation, contained personal information about her and were not exempt under either section 36 or section 42 of the FOI Act; and(d)as to investigation reports, the Tribunal upheld exemptions in reliance upon sections 36 and 37 of the FOI Act.

Ratio Decidendi

Legal Principle Established

Established by:

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