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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Falvo and Comcare (Practice and procedure)

Details

AGLC: Falvo and Comcare (Practice and procedure) [2025] ARTA 1188
Case: [2025] ARTA 1188
Decision Date: 30 July 2025

CaseChat Overview and Summary

Falvo, the applicant, sought review of a decision made by Comcare, the respondent, in the Administrative Appeals Tribunal. The applicant objected to the production of a document that was summonsed on the grounds that it was protected by legal profession privilege. The document was produced by the applicant's legal representative and sent to the respondent, and the applicant argued that it was privileged in the hands of the respondent. The applicant contended that the document was created for the dominant purpose of providing advice and obtaining instructions in the review proceedings, and that it was subsequently disclosed to the employing authority's rehabilitation officer. The employing department and the rehabilitation officer were not parties to the proceedings. The central issue before the court was whether the applicant had acted in a manner clearly inconsistent with the maintenance of privilege.

The court found that the document was indeed privileged in the hands of the respondent but was no longer protected by privilege once it was disclosed to the employing authority's rehabilitation officer, who was not a party to the proceedings. The court held that the applicant had acted in a manner clearly inconsistent with the maintenance of privilege by disclosing the document to the rehabilitation officer. As a result, the claim of privilege was denied, and the applicant was ordered to produce the document.

No further orders were made by the court.

Orders