Falvo and Comcare (Practice and procedure) - [2025] ARTA 1188

Falvo and Comcare (Practice and procedure) [2025] ARTA 1188 (30 July 2025)
Applicant/s:  Guido Falvo
Respondent:  Comcare
Tribunal Number:                2024/3829

Tribunal:General Member M Carey
Place:Melbourne
Date:30 July 2025

Decision:

The Respondent’s claim of legal profession privilege in respect of the document of 2 April 2025 records returned in answer to the Tribunal’s summons by the Australian Taxation Office (ATO) in respect to the records held by Ms Suna Edwards is disallowed.
And the Tribunal further DIRECTS:
1.The Applicant shall have leave to inspect the documents returned in answer to the Tribunal’s summons by the ATO in respect to the records held by Ms Suna Edwards.
2.The Telephone Directions Hearing is adjourned to 11.00am on Friday, 22 August 2025 in order to deal with any remaining issues concerning the adjectival relevance of the document of 2 April 2025 in the materials returned in answer to the summons, as well as any issue concerning the sufficiency of compliance with the summons.
3.The parties have leave to provide written submissions on or before 21 August 2025 going to the issues of the adjectival relevance of the document of 2 April 2025 as well as any issue concerning the sufficiency of compliance with the summons. The Respondent’s claim of legal profession privilege in respect of the document of 2 April 2025 records returned in answer to the Tribunal’s summons by the ATO in respect to the records held by Ms Suna Edwards is disallowed.

.................[SGD]................
General Member M. Carey
Catchwords
SUMMONS – objection to production of document summonsed on grounds of legal profession privilege – document produced by legal representative and sent to respondent - privileged in the hands of the respondent – document created for the dominant purpose of providing advice and obtaining instructions in review proceedings – document subsequently disclosed to employing authority rehabilitation officer – employing department and rehabilitation officer not parties to proceedings – whether respondent has acted in a manner clearly inconsistent with the maintenance of privilege – claim of privilege denied.
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Cases
Costco Holdings Pty Ltd v Federal Commissioner of Taxation (1997) FCA 1504
Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49
Mann v Carnell (1991) 201 CLR 1
Secondary Materials
Administrative Review Tribunal (Common Procedures) Practice Direction, 2024
Statement of Reasons

Mr Guido Falvo is an employee of the ATO who has made a claim for compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) which has been denied.
His claim was made on 30 November 2023 in respect of an injury described as ‘chronic major depressive disorder with anxious distress with a fluctuating course’.[1] He stated that his injury arose in circumstances where he had advised his employer of the existence of a cardiovascular condition for which he was advised to ‘avoid stressful situations.’ He then alleged that his employer, particularly the officers within the ‘Working Well’ section of the ATO, who have some roles in rehabilitation, then discriminated against him on the grounds of age by a suggestion that he ought to consider retirement on the grounds of age which, in his perception, was coupled with ‘thinly veiled threats’ that ‘things could get messy’ for him. He alleges these threats were repeated many times. He said he first noticed his condition on 20 April 2023.
[1] T3, 10. References to ‘T-Documents’ are references to documents lodged with the Tribunal pursuant to a Notice to the Respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), in operation when the application commenced. They are generally known as ‘Tribunal documents’, sequentially numbered, with subsequent page references.
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
Comcare rejected liability to pay compensation in a determination 1 February 2024.[2] Following reconsideration of that decision at the request of Mr Falvo, Comcare made a reviewable decision on 17 May 2024 affirming the denial of liability.[3]
[2] T14, 344-355.
[3] T18, 369-386.
The decision-maker accepted that he had suffered a psychological condition beyond the bounds of normal mental functioning which was referred to as ‘major depressive illness relapse’ and that he first sought treatment for that condition on 23 April 2023. It was also conceded that the condition was significantly contributed to by his employment and that the raising of the retirement option in the meeting with a rehabilitation case manager ‘contributed to the initial aggravation’ of the psychological condition. However, the decision-maker considered that the meeting with the rehabilitation case manager, in which the retirement option was discussed, was a ‘reasonable administrative action taken in a reasonable manner in respect of the employee’s employment’ and, as a consequence of this exclusionary proviso to the definition of ‘injury’ in section 5A(1) of the SRC Act, his claim for compensation was unsuccessful.
On 10 June 2024, Mr Falvo sought review of this decision by the former Administrative Appeals Tribunal.
In the course of these proceedings and at the applicant’s request, the Tribunal issued summons directed to the ATO seeking records, particularly from officers who were in some way connected to the rehabilitation functions which were at the heart of the issues raised in these proceedings.
In answer to one of the summonses directed to the ATO, a return was made of documents held by Ms Suna Edwin numbering well over 1300 pages.
The respondent made objection to the production of one document, an email dated 2 April 2025 sent by the lawyer in the Office of General Counsel, Integrity, Assurance and Law, in the ATO to Mr Roberto Tomei concerning Mr Falvo. The respondent made an objection on the grounds that the email contained material that was subject to legal professional privilege. This telephone Directions Hearing was convened to hear and determine that direction.
A further objection was raised by the respondent at the hearing, though no written notice had been previously received by the Tribunal, that the document did not meet the test of adjectival relevance to any issue in the proceeding and hence ought to be excluded from the return. The test for ‘adjectival relevance’ is not the same for relevance to an issue in the proceeding. Relevance is a matter to be determined by the member hearing the evidence in adjudicating the issues in dispute. At this preliminary stage, the test by which the material returned must be weighed is whether it is likely to ‘throw some light on’ the issues in dispute (see Costco).[4] Such evidence might not come into evidence but if it might do so then the material may be received for the use of the parties, strictly for the purposes of the proceeding and not for any ulterior or collateral purpose.
[4] Costco Holdings Pty Ltd v Federal Commissioner of Taxation (1997) FCA 1504, [42] per Spender J (‘Costco’).
The applicant also raised a separate issue concerning the sufficiency of compliance with the summons given. That issue was not the subject of the hearing convened and was not addressed by the respondent.
Having heard the parties on the issue in dispute, I have determined that the objection raised by the respondent to production of the 2 April 2025 email from the ATO lawyer to the rehabilitation officer, Mr Tomei, is not protected by legal professional privilege because that privileged information contained in the email had been dealt with in a manner inconsistent with the maintenance of privilege. However, the remaining issue of the adjectival relevance of the material could not be addressed in the absence of the applicant having an opportunity to see the document and be afforded the right to make a submission as to its relevance to the issues in dispute. For that reason, the telephone Directions Hearing will be reconvened on 11.00am on Friday, 22 August 2025 to consider the objection on the ground that the email of 2 April 2025 lacks adjectival relevance and to further consider any issues concerning the sufficiency of compliance with the summonses.
Legal profession privilege
The law recognises that certain information is protected from public disclosure ‘to serve the public interest in the administration of justice by encouraging full and frank disclosure by clients to their lawyers.’ It is a privilege recognised in the common law and is engaged where the information, whether or not contained in a document, is produced for the ‘dominant purpose’ of obtaining legal advice in the conduct of personal and business affairs, and obtaining legal assistance in and for the conduct of actual or anticipated litigation (see Esso).[5]
[5] Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49 at 64-65 [35] (Gleeson CJ, Gaudron and Gummow JJ) (‘Esso’).
The privilege is attracted because of the nature of the information contained in the communication, not merely because its origin or intended destination might be the desk of a lawyer.[6]
[6] Ibid at 67 [43].
A claim of privilege is not limited to the adducing of evidence but may be invoked in circumstances of the inspection of documents in answer to some compulsion (see Mann).[7]
[7] Mann v Carnell (1991) 201 CLR 1 (Gleeson CJ, Gaudron, Gummow and Callinan JJ) (‘Mann’).
The information that is contained in the document, the email of 2 April 2025, is information that would ordinarily be considered subject of legal profession privilege. It was a report of the progress of the present case at the stage of preliminary conferencing at the Tribunal and raised considerations as to the sufficiency of evidence and whether further medical evidence ought to be obtained and from whom such a request would be directed. This information came from a lawyer, acting on behalf of Comcare, at the Tribunal preliminary conference.
However, the actual communication of 2 April 2025 is from Ms Megan Duffy, a lawyer in the Office of General Counsel, Integrity, Assurance and Law, in the ATO and is addressed to Mr Roberto Tomei, who is identified as a rehabilitation case manager working in the ATO. The respondent accepts that this information was substantially ‘cut and pasted’ from another communication received from the lawyer attending the preliminary conference on behalf of the respondent.
Mr Falvo alleged that once Comcare, the respondent, communicated the information to Mr Tomei, a member of staff of the ATO, the information ceased to be confidential and that the privilege had thereby been waived.
Waiver of privilege
Confidentiality of communications between lawyer and client is the essence of the privilege. Where the client acts in a manner inconsistent with the maintenance of that confidentiality, there will have been a waiver of the privilege. That waiver may be express or implied.[8]
[8] Ibid at 13 [28]-[29].
It is also to be noted that the privilege is that of the client. In this case, the relevant client is Comcare, the respondent, a corporate entity created by section 68 of the SRC Act.
I was invited by the respondent to accept that Ms Duffy, the lawyer in the ATO who sent the email of 2 April 2025, was delegated to act on behalf of Comcare. I have no evidence of actual delegation of Comcare’s authority in this case. By section 73B of the SRC Act, Comcare may, in writing, delegate to an officer, or a person employed by the Commonwealth or a Commonwealth authority all or any of Comcare’s functions and powers’ save those powers and function sunder the Work Health and Safety Act 2011 (Cth). Mr Falvo did not challenge that delegation had been made in Ms Duffy’s case, and I accept that she is a Comcare delegate charged with the duties of Comcare in respect of the present review.
While most Comcare claims are administered directly by Comcare, there have been instances in the case of certain departments and authorities, where officers employed by such bodies (ATO and Department of Social Services, for example) receive, determine and manage claims and reviews of decisions in relation to those claims, within the department. They do so by delegation of the powers of Comcare. However, their decisions and reviews are those of Comcare, not the government department or authority.
Hence, when Ms Duffy received the communication from lawyers acting for Comcare in the review, she was acting as client. However, Mr Tomei is an ordinary employee of the ATO and not delegated with any Comcare powers. Even were he to be appointed as a rehabilitation case manager of an approved Comcare claim, he would only exercise such powers as the delegate or employee of the ‘rehabilitation authority’, not Comcare.
To explain, Comcare is a designated ‘relevant authority’ in respect of claims and empowered to receive and determine entitlements and make payments of compensation. Comcare does not perform primary rehabilitation functions. Part III of the SRC Act deals with rehabilitation and places the responsibility on the ‘rehabilitation authority’ which is the chief officer of the employing entity or Commonwealth authority.
Mr Tomei, as an employee of the ATO is not a party, but a stranger, to the proceedings. By communicating the content of confidential communications by either summarising or cutting and pasting the details of the privileged communication, Ms Duffy was acting in a manner inconsistent with the maintenance of confidential communications. Hence, the privilege is waived.
Accordingly, Comcare’s claim of privilege over the communication of 2 April 2025 is denied.
I have indicated that there is a further objection to the production of the communication of 2 April 2025 which must be the subject of submission.
The respondent’s legal representative invited me to rule on the issue without revealing the contents to Ms Falvo. I was told that such a procedure is commonly adopted by Tribunal members dealing with applicant objections on the grounds of relevance in relation to medical records summonsed by the Tribunal at the request of respondents in compensation matters where respondents do not get to view the documents and make submissions.
Where the relevance or potential relevance of documentary materials to the issues in proceedings is raised, and the relevant is dispute, it is difficult to see how such a matter might be resolved without hearing from both parties as to how their interest might be affected. It would be a matter of procedural fairness to allow both parties to make informed submissions concerning the potential use the parties might have for the disputed material in the developing evidence to be used in the case.
I have made directions that will allow the applicant access to all the materials prepared, sent received or held by Ms Suna Edwin in the return of documents by the ATO, including the email communication of 2 April 2025.
That does not mean that this document is to be used in evidence. That will depend on the outcome of the new objection raised by the respondent, Comcare, as to the adjectival relevance of the document.
Even were Mr Falvo to be successful in obtaining the document as adjectivally relevant, it is only released to his for use in the proceedings and may not be used for any ulterior or collateral purpose. All parties are bout by the implied undertaking, referred to as the Harman Obligation, to keep all such materials confidential to be used strictly for the purposes of the proceeding. That obligation continues until such time as the materials are received into evidence in open hearing or the parties are released from the obligation by the Tribunal following application and demonstration of special circumstances justifying release.
The parties’ attention is drawn to the Administrative Review Tribunal (Common Procedures) Practice Direction, 2024 in respect of these matters.
Dated: 30 July 2025
Appearances:
Applicant: Mr Falvo, self-represented.

Respondent: Ms Johnson, HBA Legal