Daykin v SAS Trustee Corporation

[2000] NSWADT 51

Set aside by Appeal: Set aside by appeal on 8/11/2000

CITATION:	Daykin -v- SAS Trustee Corporation [2000] NSWADT 51
DIVISION:	General Division
PARTIES:	APPLICANT Adam Shane Daykin RESPONDENT SAS Trustee Corporation
FILE NUMBER:	993275
HEARING DATES:	28/03/2000
SUBMISSIONS CLOSED:	04/19/2000
DATE OF DECISION:	05/01/2000
BEFORE:	Smith MB - Judicial Member
APPLICATION:	access to documents - Freedom of Information Act - access to documents
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Freedom of Information Act 1989
CASES CITED:	Mangoplah Pastoral Company Pty Ltd v Great Southern Energy [1999] NSWADT 93 X v Director-General, Department of Community Services [1999] NSWADT 141 Lambidis v Commissioner of Police (1995) 37 NSWLR 320 Calman v Commissioner of Police [1999] HCA 69 Jones v Dunkell (1959) 101 CLR 298 Department of Premier and Cabinet v Hulls [1999] VSCA 117 Akins v Abigroup Ltd (1998) 43 NSWLR 539 Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67 Grant v Downs (1976) 135 CLR 674 Australian Trade Commission v Disktravel (1999) 91 FCR 374 Parker Pen (Australia) Ltd v Export Development Grants Board (1983) 67 FLR 234 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985) 162 CLR 24 Haoucher v Minister for Immigration (1993) 42 FCR 287 Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1 Portch v State Authorities Superannuation Board (unreported Industrial Court of NSW, Cullen J, 29 March 1993 at p.2, and Ford v State Authorities Superannuation Board (supra) at p.7 R v Bell, ex parte Lees (1980) 146 CLR 141 Egan v Chadwick [1999] NSWCA 176 Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 Lambidis v Commissioner of Police (1995) 37 NSWLR 320 Murphy v Abi-Saab (1995) 37 NSWLR 280 R v Blair (1985) 1 NSWLR 584 Commonwealth v Verwayen (1990) 170 CLR 394 Mann v Carnell [1999] HCA 66 Department of Premier and Cabinet v Hulls [1999] VSCA 117 Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666 Re New Broadcasting Ltd and Australian Broadcasting Tribunal (1987) 12 ALD 1 Re Hungerford and Repatriation Commission (1990) 21 ALD 568 Re Velovski and Telstra Corporation (1998) 26 AAR 454 Oshlack v Richmond River Council (1998) 193 CLR 72
REPRESENTATION:	APPLICANT B T Matthews, solicitor RESPONDENT In person
ORDERS:	1. The reviewable decision is set aside. ; 2. There be substituted for the reviewable decision a decision that the applicant be given access to the report of Dr Brian Stephenson dated 25 March 1999.

Introduction

1 This is an application by Mr Dakin for review of a decision made on behalf of the respondent on 7 October 1999 which refused access under the Freedom of Information Act 1989 (NSW) to a medical report concerning the applicant prepared by Dr Brian Stephenson and dated 25 March 1999. I shall refer to it as “Dr Stephenson’s second report”. The decision was affirmed on internal review on 26 October 1999.

2 The sole ground claimed for refusing access pursuant to s 24 of the FOI Act is that permitted by s 25(1)(a): that the document “is an exempt document” by reason of it being a document described in cl 10 of the Schedule to the FOI Act. Under that clause a document is an exempt document “if it contains matter that would be privileged from production in legal proceedings on the ground of legal professional privilege.”

3 The case therefore requires me to return to reasoning which I adopted in Mangoplah Pastoral Company Pty Ltd v Great Southern Energy [1999] NSWADT 93. In particular, I concluded that the Tribunal when reviewing a decision such as the present should consider the discretion given by the FOI Act to a decision-maker to “override an exemption” by giving access to a document notwithstanding that it is an exempt document. My opinions in that case have not had the benefit of examination by an appellate body, but were applied by the President of the Tribunal in X v Director-General, Department of Community Services [1999] NSWADT 141 at [73-76]. I propose to adhere to them.

4 However, I must re-examine the tests of privilege to be applied under cl 10 in the light of new High Court decisions. I also need to return to my discussion on when it would be appropriate to override a legal professional privilege exemption.

5 As the transcript will reveal, the evidence in the case was taken informally. The applicant represented himself. The respondent, which I shall call STC, was represented by its employed solicitor, Mr Matthews, who holds the position of “Manager, Disputes and Appeals” and was involved in proceedings in the Industrial Commission of NSW to which I shall refer below. Both the applicant and Mr Matthews presented affidavits sworn by themselves, together with some additional documentary evidence. They both further explained the surrounding circumstances from the bar table, the applicant first taking an oath. Since what they said was largely uncontroversial I have taken into account their factual statements in the course of the hearing, giving them such weight as appears appropriate.

6 Although both the applicant and Mr Matthews presented short written submissions, they made little reference to relevant authorities, and neither addressed the discretionary issues raised by Mangoplah. I therefore gave leave for them to furnish additional written submissions subsequent to the hearing. Mr Matthews lodged a short supplementary submission within the 14 days directed. Mr Dakin did not do so, but filed a submission in reply which I have read.

7 I have decided that Dr Stephenson’s second report should be released based on several alternative conclusions. These are that the document was not brought into existence and communicated for the “dominant purpose” of being used by the respondent’s legal representatives in their conduct of legal proceedings in the Industrial Commission of NSW; that, even if it was, the document could not be “privileged from production” due to its statutory status as “medical advice” required to be taken into account by both the determining authority and by the Commission; and that, even if the document falls within cl 10, the exemption should not be claimed due to discretionary considerations arising in the special circumstances of the case. I also reject a submission that I may not make a decision giving effect to any of the above conclusions by reason of an estoppel arising out of events which have occurred in the Commission.

Invalidity allowances for disabled police

8 The applicant was a member of the police force and is entitled to benefits under the Police Regulation (Superannuation) Act 1906 (NSW) (“the PRS Act”). I shall not attempt a detailed examination of the intricately varied benefits available under this Act, nor of the labyrinthine processes set up for their determination. However, a brief sketch of the provisions relevant to the present case is necessary.

9 The STC is given the central administrative role both in relation to administering a Fund established by the PRS Act and in determining the benefits of individual claimants. It is a body continued under the Superannuation Administration Act 1996 (NSW) (“the SA Act”) with general responsibilities as trustee for certain public sector superannuation schemes referred to as STC schemes, which include the present scheme. Its principle functions are specified in s 50(1) of the SA Act as:

“(a) to administer the STC schemes, and

(b) to invest and manage the STC funds, and

(c) to provide for the custody of the assets and securities of the STC schemes, and

(d) to ensure that benefits payable to the persons entitled to receive benefits under the STC schemes are paid in accordance with the Acts under which the schemes are established or constituted, and

(e) to determine disputes under those Acts, and

(f) to exercise such other functions with respect to the STC schemes and STC funds as the Minister may from time to time approve by order in writing.”

10 Its duties in relation to its functions are described in s 51:

“ (1) STC must:

(a) act honestly in all matters relating to its functions relating to the STC schemes, and

(b) exercise, in relation to all matters affecting the STC schemes, the same degree of care, skill and diligence as an ordinary prudent person would exercise in dealing with property of another for whom the person felt morally bound to provide, and

(c) ensure that its functions relating to the STC schemes are exercised in the best interests of persons entitled to receive benefits under the STC schemes, and

(d) not enter into any contract or arrangement, or do anything else, that would prevent STC from, or hinder STC in, properly exercising STC's functions as a trustee.”

11 Section 3 of the PRS Act gives control to STC of a Police Superannuation Fund, and requires it to pay out of the Fund “the benefits provided by this Act”. Those benefits include an annual allowance payable under s 7 to members discharged under the age of 60 “after being certified under s 8(1) to be incapable, from infirmity of body or mind, of discharging the duties of the member’s office”. That allowance is a percentage of up to 72.75% of retirement salary, depending upon length of service. A s 8(1) certificate is not required to specify a particular infirmity causing invalidity, and the allowance does not depend upon establishing a causal relationship between duties and invalidity. It is, in short, a species of invalidity superannuation pension.

12 Access to a higher invalidity allowance which is at least 72.75% and up to 100% of salary, and which is unrelated to length of service, depends upon obtaining three different determinations under ss 10 and 10B. A claimant must first obtain from STC a certificate under ss 10B(1) or (2) that the member is or would be “incapable from a specified infirmity of body or mind, of discharging the duties of the member’s office” (my emphasis). The claimant must then obtain a decision under s 10B(3) by the Commissioner of Police on “whether or not the infirmity to which the certificate relates was caused by the member being hurt on duty”, that being a term defined in s 1 so as to adopt workers’ compensation tests of causation (c.f. Lambidis v Commissioner of Police (1995) 37 NSWLR 320 and Calman v Commissioner of Police [1999] HCA 69). Armed with a STC certificate and a Commissioner’s decision, the claimant must then obtain a determination by STC of the amount of the allowance, which depends upon STC forming further opinions under s 10(1A) on the extent of the member’s residual capacity for work outside the police force and, in the case of a totally incapacitated member, on the extent to which the member was hurt on duty by reason of “risks to which members of the general workforce would normally not be required to be exposed in the course of their employment”. This allowance thus, in effect, provides a combined superannuation invalidity and worker’s compensation incapacity pension. Further disability entitlements for members hurt on duty may also arise for determination by STC, for example, lump sum gratuity entitlements under s 12C based upon an assessment of percentage impairment based on workers’ compensation tests.

13 As I have indicated, the legislation provides an administrative, as distinct from a judicial, scheme for determining all elements of entitlement (see also Ford v State Authorities Superannuation Board, unreported Industrial Court of NSW, Marks J, 14 October 1994, at p.6). The legislation also provides for decisions made administratively to be taken at each stage (i.e. before the next stage is embarked upon) on appeal for a de-novo determination by either the Industrial Relation Commission of NSW (under s 88 of the SA Act, in relation to STC determinations on certificates) or to the Compensation Court of NSW (under s 21 of the PRS Act, in relation to STC and Commissioner of Police decisions concerning “hurt on duty” entitlements).

14 From the evidence before me, it would seem that in practice both the STC and the Commissioner of Police delegate their decision-making powers for initial exercise by or on a recommendation of a Police Superannuation Advisory Committee established under Part 2A of the PRS Act and making decisions on files and assessments compiled by employees of STC. If a member contests the initial decision by the delegate, then this is determined on administrative procedures by the STC itself (or a Disputes Committee) as a “dispute” under s 67 of the SA Act. A still dissatisfied member must then contemplate an appeal on that decision only to the Commission or Court. With the splitting of entitlement issues, and the taking of preliminary decisions on review and appeal, considerable complexity and delays can ensue.

15 The only other aspect of the legislation which I would note is that the first decision, whether to issue a certificate of incapacity for duties under ss 8(1) or 10B(1) or (2), is made under powers which all contain the express requirement that it be made by STC “having regard to medical advice on the condition and fitness for employment of the member”, and that “medical advice” is defined as meaning the advice of “2 members of the Police Medical Board” appointed under s 15A of the PRS Act or the advice of “any one or more medical practitioners nominated by the STC”. As I shall explain, I have decided in the present case that Dr Stephenson’s second report should be characterised as statutory “medical advice”.

16 Mr Matthews informed me that STC takes the view that it is not required to act exclusively on “medical advice” as defined, and that it may also take into account medical opinions provided from other sources. This is consistent with the opinion of Marks J in Ford v State Authorities Superannuation Board (supra) at p.23. However, I consider that it is plain that the legislature gives a special status to the statutory “medical advice”, and that it is likely often to be given more weight in STC decision-making than, for example, medical opinions proffered by the claimant member. Moreover, the objects of these provisions include, in my opinion, guaranteeing to claimant beneficiaries that decisions will be made on reputable, independent and impartial expert medical advice which will be obtained by the determining authority. Beneficiaries are thus reassured that they will not necessarily be required to search out and obtain such advice for themselves.

The background events

17 On 20 March 1997 the applicant completed a form which was received by “police workers comp” on 24 March 1997. It is headed “application for medical discharge”, but in its terms is also an application for STC to certify that he was incapable of discharging the duties of his office. The form also indicates that the applicant claimed that his conditions of anxiety, damaged right knee and lower back were the cause of his incapacity, that these were permanent, and that they were work related. The form states that “Medical discharge determinations for sworn officers employed prior to 1 April 1988 are made by the Police Superannuation Advisory Committee (PSAC) under delegation from the State Authorities superannuation Board. PSAC is a statutory body, independent of the Police Service”. I take this claim form to be, or include, an initiating application which required the STC to commence and complete all relevant stages of the full decision-making process to determine the applicant’s benefits under the PRS Act.

18 On 15 September 1997 Ian Prattent, who described himself as “Medical Review Officer (Police)”, and who Mr Matthews says was employed by STC to provide secretarial support to PSAC, sent the applicant a letter which informed him:

“Your application has been reviewed by the Superannuation Administration Authority (SAA) on behalf of the Police Superannuation Advisory Committee (PSAC), which is constituted under section 2H of the Act, pursuant to delegation from the Superannuation Trustee Corporation (STC) under sections 21 and 2J of the Act.

The Authority has, in terms of section 10B(2C)(b) of the Act, nominated Dr J Stephenson, Orthopaedic Surgeon and Dr R Wade, Psychiatrist to provide medical advice as to your condition and fitness for employment.

Arrangements have therefore been made for you to be examined by Dr Stephenson ….on 1 October 1997 …”

19 The applicant says that he spoke to Mr Prattent after receiving the letter, as a result of past experiences in dealing with the Police Service in which he had been refused access to “doctors statements”. He had previously spoken to Mr Prattent about his concern that the Police Medical Officer would not be supporting his discharge, and been reassured by advice that PSAC was independent of the Police Service and often went against the Police Medical Officer. On this occasion, he told Mr Prattent that he was reluctant to attend the appointments and Mr Prattent “agreed that I would be given access to those Doctors documents upon my application for them” under the FOI Act.

20 The applicant attended the appointments, and on 12 December 1997 he was given access under the FOI Act to his file of documents held by the respondent. This included the report of Dr Stephenson dated 21 October 1997 (“Dr Stephenson’s first report”), which is in evidence before me. The letter of request for Dr Stephenson’s opinions is not in evidence, but from letter sent to the applicant and the contents of the report it would seem that Dr Stephenson was requested to give opinions on all issues relevant to the applicant’s entitlements for his orthopaedic conditions. Certainly, Dr Stephenson gave opinions which addressed, in somewhat tentative and provisional terms, the existence of knee and back conditions, their work relationship, whether there was permanent impairment, and their effects on capacity to perform work as a police officer. In short, it gave medical advice going to issues both relevant to and beyond those arising for determination in relation to the issue of a certificate under s 10B(1).

21 On 27 January 1998 PSAC issued a certificate “in terms of sections 8(1) and 10B(1) of the Act, that you are incapable, due to the infirmity of “major depressive illness with generalised anxiety disorder” of discharging the duties of your office.” The letter also foreshadowed the applicant’s discharge from the Police Service, and this occurred on 5 February 1998.

22 On 23 February 1998 the applicant sought review by the STC’s Disputes Committee of the failure of the certificate to mention his physical injuries “which of course are a definitive part of my reasons for discharge from the NSW Police Service.”

23 On 5 May 1998 he was informed that “STC’s Disputes Committee determined the dispute under section 67 of the Superannuation Administration Act 1996, by confirming PSAC’s decision in specifying the nature of your infirmity as ‘major depressive illness with generalised anxiety disorder’”.

24 On 5 November 1998 the applicant appealed to the Industrial Relations Commission of NSW “against the wording of the specified infirmity by the non inclusion of my right knee and lower back”. He acted in person, but subsequently obtained representation with the assistance of his union.

25 On 5 March 1999, his solicitors were sent a letter by Mr Matthews which said “I refer to previous correspondence in this matter and write to advise of arrangements for Mr Daykin to be medically examined for the purposes of his appeal to the Industrial Relations Commission”, and specified an appointment with Dr Stephenson on 23 March 1999.

26 The applicant attended the appointment which led to the document now in contention, Dr Stephenson’s second report dated 25 March 1999. This report, and Mr Matthews’ letter to the doctor requesting his opinions, is a confidential exhibit before me. I shall refer to their contents below.

27 The applicant says, and I accept, that when attending the examination he anticipated that he would again be given access to the resultant report. He said that he held this belief as a result of his previous dealings with Mr Prattent, but readily conceded that he did not discuss this question with his solicitor nor with any representative of STC. He said “I did not see the need to again contact the Superannuation Administration Authority in relation to documentation access as this was an update on the original medical report and I had already received an authority in relation to this specific Doctor previously.”

28 On 6 September 1999 the applicant made a request for access under the FOI Act to Dr Stephenson’s second report. This was refused on 7 October 1999, and this decision was affirmed on internal review on 26 October 1999. On 17 December 1999, the applicant applied, within time, for review by this Tribunal. His appeal passed through at least one directions hearing, before coming before me for hearing on 28 March 2000.

29 Meanwhile, the applicant’s appeal came on for hearing before Justice Kavanagh in the Industrial Relation Commission in Court Session, and was listed for that purpose on 7 June 1999, and 1, 2 and 9 November 1999. I was given little information as to what evidence was led and what submissions were made at the hearing, at which both parties were represented by counsel. However, Mr Matthews tendered pages 1, 4 and 5 of the transcript of proceedings on 1 November 1999, in support of his submission that Kavanagh J made a ruling or determination which upheld a claim by STC to legal professional privilege in relation to Dr Stephenson’s second report, and which raises a “res judicata” preventing the applicant from disputing otherwise in the proceedings before me. I shall deal with this submission below.

30 It would appear from the fragment of transcript tendered by Mr Matthews and from what he said to me at the hearing, that Dr Stephenson’s first report was in a bundle of documents served and filed in the Commission by the STC. The report was also “re-served” by the applicant’s solicitors. The transcript records counsel for STC informing her Honour that “we are not relying on that”, as the reason for not tendering nor producing Dr Stephenson’s second report. It also suggests that neither party had taken steps to have Dr Stephenson attend the hearing. It would seem that his first report was received in evidence on the actual or notional tender of the applicant’s counsel, since her Honour’s judgment refers to passages from it and notes at [20] “Dr Stephenson saw the appellant again in October [sic: March] 1999 but this report is not tendered. The appellant submits the court should cast an inference the report would not assist the respondent (see Jones v Dunkell (1959) 101 CLR 298)”. Nothing in the judgment nor in the evidence before me indicates that Kavanagh J’s attention was taken to the special status of Dr Stephenson as a source of statutory “medical advice”. At [27] of the judgment is a statement that suggests that her Honour thought that the doctor had “examined him on behalf of the Police Force”.

31 Kavanagh J’s judgment in Daykin v SAS Trustee Corporation [2000] NSWIRComm 7 was delivered on 25 February 2000. The applicant was partially successful, in that her Honour ordered that “it is to be certified that the appellant is incapable from the infirmity of the body, namely, a chrondomalacia patella condition of the right knee of discharging the duties of his office.” However, he did not succeed in having the certificate amended so as also to specify his back condition.

32 Mr Matthews informed me at the hearing that STC has applied for leave to appeal to the Full Bench of the Commission under s 188 of the Industrial Relations Act 1996 (NSW)(“the IR Act”). He subsequently submitted a copy of its application, which attempts to locate an important error of law in her Honour’s reasoning. I have formed no opinion as to the chances of leave being given. At the hearing before me the applicant was unaware of the grounds and did not yet know whether he will receive legal assistance in relation to any appeal.

33 Mr Matthews deposed in his affidavit that “the report of Dr Stephenson that is sought by Mr Daykin may be relevant to any appeal to the Full Bench”. I take it that he is referring to the prospect of a cross-appeal by Mr Daykin in relation to the back condition, in which the Full Bench might be requested to give leave to receive further evidence under s 191(2) of the IR Act. I have formed no firm opinion on his chances of obtaining such leave but, in my consideration of discretionary factors, I have taken into account a real possibility that leave will be sought and will be granted.

34 Mr Matthews’ affidavit says that the applicant is currently entitled to a pension at 72.75% as a result of having successfully appealed to the Compensation Court of NSW against a decision of the delegate of the Commissioner of Police that the specified anxiety condition was not “duty related”. He also points out that, if Kavanagh J’s judgment stands, the applicant may be entitled to additional pension under s 10(1A) as a result of the knee condition now being specified in the s 10B(1) certificate, and that he may also be entitled to additional compensation under s 12D. This will require further determinations on such issues as to whether it is a “hurt on duty” condition, the degree of his incapacity for work, and the degree of permanent impairment.

The legal professional privilege exemption

35 For the reasons given in Mangoplah (supra) at [27] I consider that the reference in cl 10 to Sch 1 of the FOI Act to “the ground of legal professional privilege” should be given an ambulatory construction, as a reference to the common law and statutory tests which would be applied by a NSW court when deciding questions of privilege “in legal proceedings” notionally conducted at the time when the FOI application is determined, i.e. at first instance or on review by the Tribunal. Moreover, the breadth of the term “in legal proceedings” encompasses all stages of legal proceedings, so that, if current laws require different tests to be applied at interlocutory stages and at the hearing, the exemption will arise under whichever test gives the broadest privilege applicable in the particular circumstances. I note that an ambulatory construction of a “secrecy provisions” exemption was taken by the Victorian Court of Appeal in Department of Premier and Cabinet v Hulls [1999] VSCA 117 at [40].

36 In Mangoplah I applied common law tests of privilege in accordance with Akins v Abigroup Ltd (1998) 43 NSWLR 539. The High Court has now in Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67 rejected the opinion that there is a “derivative” application of the Evidence Act to pre-trial processes, but has restated the common law so as to prefer the opinion given by Barwick CJ in Grant v Downs (1976) 135 CLR 674 at 677:

“a document which was produced or brought into existence either with the dominant purpose of its author, or of the person or authority under whose direction, whether particular or general, it was produced or brought into existence, of using it or its contents in order to obtain legal advice or to conduct or aid in the conduct of litigation, at the time of its production in reasonable prospect, should be privileged and excluded from inspection.”

37 In the present case, I consider that there are no material differences between this test and the terms of s 119 of the Evidence Act, which is also relied upon by STC. That section applies to:

“a confidential communication between a lawyer acting for the client and another person, that was made … for the dominant purpose of the client being provided with professional legal services relating to an Australian … proceeding … in which the client is… a party”.

38 Mr Matthews disclaimed reliance on the “legal advice” privilege in s 118 of the Evidence Act.

39 In his affidavit, Mr Matthews said: “Following receipt of the notice of appeal I briefed counsel and requested advice as to the steps needed to prepare for the hearing of the appeal. In the light of counsel’s advice I arranged for a further medical examination of Mr Daykin by Dr B Stephenson.” He did not reveal to me the contents of counsel’s advice, which was apparently in writing. I am not prepared to infer that it was more than that STC should consider obtaining an up-dating or second report from Dr Stephenson on the opinions expressed in his first report.

40 Mr Matthews did not depose to the purposes for which he requested the second report from Dr Stephenson. When I suggested to him that the mere chronology in which he wrote to Dr Stephenson may not carry a clear inference that the dominant purpose of obtaining the report was its use by STC’s legal representatives in the pending proceedings, he said that in his mind this was the dominant purpose. However, his present assertion is not conclusive on this issue, and “objective facts are usually more reliable than mere protestations of purpose” (c.f. Australian Trade Commission v Disktravel (1999) 91 FCR 374 at 387, citing Lockhart J in Parker Pen (Australia) Ltd v Export Development Grants Board (1983) 67 FLR 234).

41 In my view better evidence of the purposes for which Dr Stephenson’s opinion was obtained by STC is found in the terms of Mr Matthews’ request to the doctor and of the doctor’s response, when read in the context of the legislative scheme and the events which I have narrated above. I accept that the receipt of advice from counsel provided the occasion in which Mr Matthews decided to request a second report. However, the terms of the request to Dr Stephenson reveal, in my opinion, that a report was sought which would serve multiple purposes when received by STC. The terms of the request and of the resultant report are the subject of a confidentiality order, and I cannot reveal their contents. However, of the two matters on which Dr Stephenson’s opinions were expressly sought in Mr Matthews’ letter, only the second related to an issue which was relevant to the Commission proceedings. The first matter had relevance to STC decision-making distinct from the issues arising in those proceedings.

42 Moreover, given that Dr Stephenson’s first report had addressed medical issues going far beyond the issues relevant to certification under s 10B(1) and had done so in a provisional manner, the general tenor of the request to re-examine and provide a second report suggests that a significant purpose for requesting the report was the obtaining of Dr Stephenson’s reconsidered opinions on the whole range of medical issues arising under the PRS Act in the course of STC’s determination of the applicant’s entitlements for his claimed orthopaedic disabilities. Certainly, this is how Dr Stephenson has read the request, since he has responded by canvassing all the issues covered in his first report – and in much more decided terms. As I have indicated above, the issue of fitness for police duties was but one of the many issues addressed in his first report. In its contents, the report therefore served purposes of which use in the pending Commission proceedings was a significant but, in my opinion, not a dominant one.

43 Finally, I find it significant that the request to the doctor makes no mention of the pending proceedings in the Commission, and carries no suggestion that Dr Stephenson’s opinions were being sought in relation to those or any other legal proceedings. The letter merely reads as a request by an officer of STC that the doctor “provide a report to SAS Trustee Corporation”.

44 On all the evidence, I am not satisfied that the present document was brought into existence with “the dominant purpose” of it being used by STC’s legal representatives in relation to the pending proceedings in the Commission. The onus in this respect lies on STC under s 61 of the FOI Act. I am therefore not satisfied that the document is an “exempt document” and, in the absence of any other ground for refusing access, it must be released to the applicant.

45 There is, in my opinion, a further reason why the document is not one which “would be privileged from production in legal proceedings on the ground of legal professional privilege”. This arises from the statutory provision in s 10B(1) and (2C)(b) of the PRS Act and the circumstances, referred to above, under which Dr Stephenson was nominated by the STC to provide statutory “medical advice” to which STC was bound to have regard when considering whether to certify that a specified condition existed and incapacitated the applicant from discharging duties.

46 In my opinion, these provisions must encompass the “advice” given by the nominated expert in a second or supplementary report which canvasses the same issues on which opinions were given in a first report, and must require STC to take into account and give weight to the second report. If this were not so, the Act would allow STC to form a mistaken impression as to the current opinions of the nominated expert, and to act on false or incomplete information. A legal requirement that the decision-maker must take account of up-to-date information which is in his possession is a normal implication, and this construction of the Act should be preferred (see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985) 162 CLR 24, at 30.3, 45.5, 67.2, 70, 71, Haoucher v Minister for Immigration (1993) 42 FCR 287 at 296-8).

47 In my opinion it follows from this construction that, on appeal from the STC under s 88 of the SA Act, the Commission also must take into account all the reports obtained by STC from its statutory source of “medical advice” when “standing in the shoes” of STC. This is expressly indicated in s 88(4), which states that “the Commission is to have regard to this Act and any other relevant provisions regulating the superannuation scheme concerned”, and it is also a normal implication of a merits review of an administrative decision whether or not carried out by an administrative or judicial appeal body. Each has the duty to “give what it considers to be the correct or preferable decision” (c.f. Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1 at 18). I find nothing inconsistent with this opinion in the two authorities cited by Mr Matthews: Portch v State Authorities Superannuation Board (unreported Industrial Court of NSW, Cullen J, 29 March 1993 at p.2, and Ford v State Authorities Superannuation Board (supra) at p.7.

48 It seems to me to follow, even assuming that STC in fact obtained the second report with the dominant purpose of using it as an aid in the conduct of the appeal in the Commission, that the PRS Act must be taken to have given the report a character of a document or communication that must be disclosed to the Commission, and that it is necessarily a document incapable of attracting a right in STC to claim legal professional privilege whether in the proceedings before the Commission or in other legal proceedings. In other words, it was by force of the PRS Act from its inception a document required to be produced to a third party (i.e. the Commission) in the course of legal proceedings and therefore was excluded from the ambit of legal professional privilege.

49 This conclusion may be reconciled to the provisions of the Evidence Act in three ways. First, the report could not be a “confidential document” as defined in s 117 if its disclosure to the Commission was mandatory. Secondly (and hesitantly), the report might be “a communication or document that affects a right of a person” within s 121(3), on the analysis that the Commission’s duty to take account of the report raises a correlative right in either party to compel its production. Thirdly, s 8 of the Evidence Act expressly preserves the overriding operation of the PRS Act in relation to the document, that operation being inconsistent with the privilege provided in s 119.

50 Similar reasoning would reconcile this conclusion with the common-law doctrine of legal professional privilege, which recognises that documents may be excluded from privilege by reason of special duties of disclosure (c.f. R v Bell, ex parte Lees (1980) 146 CLR 141 at 145; and Egan v Chadwick [1999] NSWCA 176 at [81]), and that the privilege may be over-ridden by statute (Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 at 582).

Estoppel and waiver

51 At the hearing, Mr Matthews submitted that the issue of whether Dr Stephenson's second report was privileged from production in legal proceedings could not be examined in the present proceedings because it was res judicata. He sought to find such an estoppel in a brief exchange between counsel and Kavanagh J found on pages 4 and 5 of the transcript of proceedings in the Industrial Commission of 1 November 1999, in which there was reference to Dr Stephenson's second report and to a summons taken out by the applicant seeking production of the report.

52 I do not accept this submission. My short reason is that I do not read the transcript as containing a formal call on the summons, nor a formal ruling by her Honour on whether the report was privileged. It seems to me that her Honour did no more than express a provisional opinion on a foreshadowed claim for privilege, and suggest that the applicant should himself tender Dr Stephenson's first report and rely upon a Jones v Dunkel inference as to the second report. This suggestion was taken up by the applicant's counsel without pressing a call on the summons.

53 I think a further answer is that an interlocutory ruling on a claim for privilege in response to a call on a subpoena is not a “final and conclusive” determination within the doctrines of res judicata or issue estoppel (c.f. Lambidis v Commissioner of Police (1995) 37 NSWLR 320 at 333; Murphy v Abi-Saab (1995) 37 NSWLR 280 at 288; R v Blair (1985) 1 NSWLR 584). Mr Matthews cited no authorities to me on this point.

54 In his supplementary written submission, Mr Matthews said that “the respondent does not press its earlier submission” as to an estoppel, but submitted that “the Court accepted and ruled on the respondent’s entitlement to privilege and that it is fair and proper for the privilege in relation to Dr Stephenson’s second report to continue to apply as the litigation between the applicant and the respondent is ongoing.” As to this submission, I reject, for the reasons indicated above, the proposition that Kavanagh J “ruled on” a claim for privilege. Moreover, I have decided for reasons discussed below, that the balance of public interests, including “fairness” to the respondent, favours the release of the document to the applicant.

55 On another point and assuming that Dr Stephenson's second report came into existence in circumstances attracting privilege, I consider that the applicant could not resist STC's claim of privilege by relying on his conversations with Mr Prattent at the time of his first appointment with the doctor. Although the applicant's assumption that the same arrangements for access would apply at the time of the second appointment is understandable, I do not consider that his evidence of his dealings with Mr Prattent shows a promise or representation on the part of STC that access would be given to all further reports obtained from Dr Stephenson. In my opinion, the evidence does not give rise to an estoppel or waiver of STC's right to claim privilege under the general doctrines discussed in Commonwealth v Verwayen (1990) 170 CLR 394, nor under the common law principles specifically concerning waiver of legal professional privilege (see Mann v Carnell [1999] HCA 66 at [28]). In terms of the Evidence Act provisions concerning waiver, there has in fact been no revelation of the document nor any consent by STC which would bring it within s 122, and I do not consider that access to Dr Stephenson's second report is “reasonably necessary to enable a proper understanding of” his first report so as to come within the “related documents” provisions of s 126.

The “override” discretion

56 The correct and preferable exercise of the override discretion arises for my consideration if I am wrong in my above conclusions. That is, if the evidence before me requires a conclusion that Dr Stephenson’s second report was, in fact, obtained for the dominant purpose of aiding the conduct of STC’s case in the Commission’s proceedings, and if the PRS Act did not mandatorily require the report to be received and taken into account by the Commission. My following reasoning proceeds upon these assumptions.

57 I set out my general approach to the override discretion in relation to the legal professional privilege exemption in Mangoplah (supra) at [90-95]. I proposed a test of whether “there is something about the information itself or the surrounding circumstances which, bearing in mind the objects of the FOI Act and the rationale for any exemption which has been satisfied, persuades (a decision-maker) that the exemption should not be claimed. The touchstone is whether withholding the document is ‘reasonably necessary for the proper administration of the Government’ (s 5(2)(b))”.

58 I consider that this test is consistent with the approach to the “override discretion” in the Victorian FOI Act which was taken in Department of Premier and Cabinet v Hulls [1999] VSCA 117 at [24-26] and [55]. The Victorian provision expressly invokes a consideration of “the public interest”. At [26] Phillips JA said: “the tribunal must determine whether considerations of “the public interest” are so strong as to outweigh, or override, those factors by which the documents are exempt documents, whether those factors derive simply from the public interest or more immediately from “the private and business affairs” of those persons from whom information was gathered in the first place.”

59 The provision in the FOI Act of an override discretion to release privileged documents is an accountability measure directed at achieving similar (but not identical) objectives to those discussed in Egan v Chadwick [1999] NSWCA 176 per Spigelman CJ at [80-85] and Priestley JA at [143]).

60 Considering the exercise of the discretion, I have concluded that in the special circumstances of this case it would be inappropriate for STC to insist upon a right to claim privilege when responding to the applicant’s FOI request, and that it is more consistent with the objects of the FOI Act that Dr Stephenson’s second report should be released to the applicant.

61 My principal reason lies, for reasons which I shall explain, not in my consideration of the interests of justice in relation to the proceedings in the Commission, but in my assessment of the public interest in a proper administration of the relevant aspects of the compensation scheme set up by the PRS Act. From this view point, I consider that there is an overwhelming public interest in the applicant being given access to Dr Stephenson’s second report.

62 As I have outlined above, STC is established to perform the role of a trustee determining the applicant’s entitlements impartially and independently from his employer: the Police Service and the Government of NSW. It is required to obtain and take into account independent and impartial expert medical evidence. As Mr Matthews conceded, its determining processes are not “legal proceedings” and the factual material it gathers and acts upon would not normally be privileged. In my opinion, it is clearly in the interests of good administration that claimant beneficiaries should be given access to the materials upon which STC might base its determinations, so that they can comment upon and if necessary supplement it.

63 Furthermore, unless the scheme is administered openly and can retain the trust of beneficiaries in its independence and in its impartial assessment of all evidence, it will fail to achieve a manifest object. Nothing is more likely to sap the trust of the beneficiaries of the Fund than the withholding of crucial pieces of medical evidence which the STC is obliged to obtain and give weight to. The result of such procedures would be general distrust of STC determinations and a perpetual process of appeal to the Industrial Commission and Compensation Court. The escalation of costs to both government and members of litigating questions of incapacity and entitlements would demonstrate the failure of the intended scheme of administration, in which benefits are usually to be determined by the STC and not by judicial bodies.

64 In the present case, the applicant was given access to his file while his entitlements were being decided by STC. The appeal proceedings in the Commission have concerned only the preliminary issues arising under s 10B(1). Further decision-making by the STC and Commissioner of Police in relation to his entitlements lies ahead. Both of Dr Stephenson’s reports deal substantively with the issues awaiting decision by the STC and the Commissioner of Police. I consider that the delegates making these decisions will be bound to take into account the contents of the second report, even if it has been properly withheld from the Commission. In these circumstances, I consider that there is an overwhelming public interest in the applicant having access to it under the FOI Act.

65 I have taken into account the fact that the release of the report would occur while the applicant’s appeal on the s 10B(1) certificate has not been conclusively determined in the Industrial Commission. However, I do not consider that this would be inconsistent with the public interest in a proper administration of the PRS scheme by STC, even if it leads to the report being received in evidence before the Commission. I accept that a public interest in the defence of the Fund favours participation by STC in the appeal proceedings by “responding substantially to the application” and by “testing evidence” and making “substantive submissions” (c.f. Brennan J in Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666 at 682 and Davies J in Re New Broadcasting Ltd and Australian Broadcasting Tribunal (1987) 12 ALD 1 at 11 and cited in Re Hungerford and Repatriation Commission (1990) 21 ALD 568 at 577). However, I do not consider that performance of this role in the present circumstances must necessarily include taking an adversarial role which withholds statutory “medical advice” from the applicant and the Commission, particularly where the report supplements a report already received into evidence (c.f. the discussion of authorities in Re Velovski and Telstra Corporation (1998) 26 AAR 454).

66 A relevant limit on STCs’ adversarial role in the Commission must also arise from its on-going responsibilities to make further determinations on the applicant's rights. I consider that it is important that the STC's representatives should not take a position before the Commission which would “endanger the impartiality it would be expected to maintain upon any subsequent application to it which might ensue were relief granted to the appellant” (Oshlack v Richmond River Council (1998) 193 CLR 72 at [12]). As I have pointed out above, if the applicant’s appeal to the Commission succeeds in having orthopaedic conditions specified in the s 10(1) certificate, STC will necessarily have to decide further aspects of the applicant’s entitlement to benefits, and it will have to do so by reference to medical advice which includes the second report of Dr Stephenson.

67 In this context, I consider that refusing the applicant access to the report would produce a prejudice overall to STC's proper administration of the PRS scheme both in general and when making future determinations on the present claim by the applicant. This prejudice is, in my judgment, more significant and outweighs any cognisable prejudice to STC's ability to adopt an unfettered adversarial role in the Commission or in any other legal proceedings: including any possible future Compensation Court litigation.

68 When finding a balance of public interests in favour of release under the FOI Act, I have taken into account the balance of interests concerning the administration of justice which is performed by the legal professional privilege exemption itself.

69 This was described in Esso (supra) by Gleeson CJ Gaudron and Gummow JJ at [35]:

“The rationale of the privilege has been explained in a number of cases, including Baker v Campbell, and Grant v Downs itself. The privilege exists to serve the public interest in the administration of justice by encouraging full and frank disclosure by clients to their lawyers. In Waterford v The Commonwealth, Mason and Wilson JJ explained that legal professional privilege is itself the product of a balancing exercise between competing public interests and that, given the application of the privilege, no further balancing exercise is required. As Deane J expressed it in Baker v Campbell, a person should be entitled to seek and obtain legal advice in the conduct of his or her affairs, and legal assistance in and for the purposes of the conduct of actual or anticipated litigation, without the apprehension of being prejudiced by subsequent disclosure of the communication. The obvious tension between this policy and the desirability, in the interests of justice, of obtaining the fullest possible access to the facts relevant to the issues in a case lies at the heart of the problem of the scope of the privilege. Where the privilege applies, it inhibits or prevents access to potentially relevant information. The party denied access might be an opposing litigant, a prosecutor, an accused in a criminal trial, or an investigating authority. For the law, in the interests of the administration of justice, to deny access to relevant information, involves a balancing of competing considerations. This Court is now asked to reconsider the balance that was struck in Grant v Downs.” (citations omitted)

70 The characterisation of a document as an exempt document within cl 10 necessarily provides a justification for refusing to release the document, and one which accepts that the withholding of the document might prevent the truth emerging in legal proceedings. An examination of this injustice to the person seeking access to the document may not, therefore, provide a sufficient reason to override a claim for exemption under cl 10. Considerations of a different kind or injustice of an exceptional kind need to be found to justify overriding the privilege.

71 In the present case, my above discussion has found special considerations favouring the release of Dr Stephenson’s report in the interests of a proper administration of the PRS Act, and these are additional to the prejudice suffered by the applicant in his conduct of the present proceedings in the Commission. As to the existence of some such prejudice to the applicant, it is enough for me to note that the respondent did not contend that the report did not contain significant probative evidence on issues relevant to the proceedings in the Commission, and that on the limited material before me I certainly would not draw that conclusion. Dr Stephenson’s second report speaks for itself in this respect.

72 In all the circumstances, I have concluded that the correct and preferable response to the applicant's request for access to Dr Stephenson's second report would be to release the report to him without further delay. I therefore set aside the decision under review and substitute a decision to that effect.