Graham v State of NSW (Director General, NSW Department of Health in respect of Ambulance Service Division

[2007] NSWADT 202

CITATION:	Graham v State of NSW (Director General, NSW Department of Health in respect of Ambulance Service Division [2007] NSWADT 202
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Rosemary Graham RESPONDENT State of NSW (Director General, NSW Department of Health in respect of the Ambulance Service Division)
FILE NUMBER:	071016
HEARING DATES:	31 July 2007
SUBMISSIONS CLOSED:	31 July 2007
DATE OF DECISION:	6 September 2007
BEFORE:	Britton A - Deputy President
CATCHWORDS:	summons - access to documents produced
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Administrative Decisions Tribunal (Interim) Rules 1998 Administrative Decisions Tribunal Act 1997 Administrative Decisions Tribunal Rules (Transitional) Regulation 1998
CASES CITED:	A v Z [2007] NSWSC 899 Australian Competition & Consumer Commission v Shell Co of Australia Ltd (1999) FCA 212 Battenburg v Chief Executive Officer & Secretary, Union Club [2002] NSWADT 219 Carroll v Attorney-General of New South Wales (1993) 70 ACrimR 162 Department of Corrective Services) (No 2) [2007] NSWADT 105 Director of Public Employment v PSAPOA of New South Wales on behalf of its members Julius Tupua and Kerryn Shearman [2007] NSWIRComm 121 National Employers Mutual General Association Ltd v. Waind and Hill [1978] 1 NSWLR 372 Park v Commissioner of Police, NSW Police Service [2000] NSWADTAP 4 R v Saleam (1989) 16 NSWLR 14 The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 77 ALJR 40 Trade Practices Commission v Arnotts Ltd (1989) 21 FCR 306 Waterford v Commonwealth of Australia (1987) 163 CLR 54 Z v University of A, Dr D & B (No. 4) [2002] NSWADT 14
REPRESENTATION:	APPLICANT L Carney, barrister RESPONDENT T Anderson, barrister
ORDERS:	1. The respondent’s claim for privilege in respect of Packets 1, 2 and 3 is upheld.; 2. The applicant’s legal representatives are granted access, photocopy and uplift on terms to be determined by the Registrar to the documents contained in Folder 5. ; 3. The Registrar is requested to write to the complainant and invite him to comment on nominated medico-legal reports and affidavits prepared by him and filed in proceedings commenced in the Industrial Relations Commission by way of an application made under s 84 of the Industrial Relations Act 1996, contained in the Folders 1 – 4. Specifically he is to be invited to comment on whether in his view the documents remain privileged and if so, if he consents to their use in these proceedings.

1 The respondent opposes access being granted to documents produced by it to the Administrative Decisions Tribunal in answer to a summons. The summons was issued under s 84 of the Administrative Decisions Tribunal Act 1997 (the Tribunal Act) at the request of the applicant, Rosemary Graham. The schedule to the summons described in the category of documents sought as follows:

All documents relating to any record or complaint or misconduct or alleged misconduct that relates to the Ambulance Officer David Priddle.

2 The respondent asserts that none of the documents produced in answer to the summons have any legitimate forensic purpose. Counsel for Mrs Graham, Mr Carney rejects that contention.

3 In addition the respondent claims privilege over some of the documents produced.

Background

4 To put the submissions made by the parties in context it is necessary to briefly set out the factual background to the substantive proceedings.

5 Mrs Graham lodged a complaint about the respondent with the President of the Anti-Discrimination Board alleging discrimination on the grounds of disability in the area of services (s 49M of the Anti-Discrimination Act 1977 (the AD Act)). After investigating the complaint the President concluded it could not be conciliated and referred it to the Tribunal under s 93C of the AD Act.

6 Mrs Graham alleges that officers of the NSW Ambulance Service who attended at her home on 15 July 2005 in response to an emergency call, treated her in a discourteous manner and furthermore decided not to transport her to hospital on the basis that they believed she was feigning complaints of dizziness, lack of balance and slurred speech. In addition she alleged that one of the officers, swore at her.

7 The following day Mrs Graham saw her general practitioner who decided she should be admitted to hospital and arranged to have her transported by ambulance. Mrs Graham alleges that one of the officers, subsequently identified as paramedic, David Priddle, accused her of ‘crying wolf’. On her account he questioned her about the ‘real reason’ for seeking admission to hospital, suggesting that it was triggered by problems at home. She claimed that Mr Priddle said to her when she arrived at the hospital, ‘Be careful Rosemary, there’s a brick wall behind you, if you are going to fall, fall the other way’. Mrs Graham also alleges that he said to a nurse who was attending to her ‘I bet she [Mrs Graham] knows all about that [psychiatry]!’

8 Mrs Graham claims that shortly after this incident she was diagnosed as having suffered from a stroke.

9 The respondent filed two statements prepared by Mr Priddle. He denied the comments attributed to him by Mrs Graham. He conceded that he had written on her Patient Health care card ‘previous psychotic disorder’ but claimed that he had meant to write ‘previous psychiatric condition’.

History of proceedings

10 On 17 July 2007 the Tribunal heard an application brought by the respondent to have a summons issued at the request of Mrs Graham set aside. The schedule to the summons described a wider class of documents than described in paragraph [1] of these reasons. The respondent argued that the documents sought were irrelevant to the issues to be decided by the Tribunal. It also argued that the summons was an exercise in ‘fishing’ and oppressive.

11 Mr Carney contended that Mr Priddle’s employment history, as an ambulance officer, might be relevant to the facts in issue, specifically that relating to any complaint or allegation of misconduct. He told the Tribunal that he was instructed that the respondent had received complaints about Mr Priddle’s conduct. In support of that assertion he handed up an affidavit apparently prepared for proceedings before the Industrial Relations Commission in which the deponent, a former colleague of Mr Priddle, alleged he had been bullied and harassed by Mr Priddle. In these proceedings I will refer to the deponent as ‘the complainant’.

12 The summons was set-aside largely on the grounds that it was oppressive. Leave was granted for a fresh summons to be issued for a narrower class of documents, namely those described in paragraph [1] above.

Documents produced

13 In answer to the summons the respondent produced three sealed packets and five A4 ring binder files.

14 Two packets concern Mrs Graham’s complaint to the President of the Anti-Discrimination Board and will be referred to as Packets 1 and 2. The third is what the respondent calls the ‘Industrial Relations file’. It concerns the complainant and will be referred to in these reasons as ‘Packet 3’. The respondent claims privilege in respect of all documents contained in the packets.

15 In addition four black and one red A4 ring binder files have been produced. The black folders will be referred to as Folders 1-4 and the red folder as Folder 5. The respondent contends that all documents contained in these folders are irrelevant to the matters in dispute.

Principles governing summons

16 The power of the Tribunal to issue a summons is contained in 84 of the Administrative Decisions Tribunal Act 1997 (Tribunal Act). (See also rules 20 and 46 of the Administrative Decisions Tribunal (Interim) Rules 1998 which are set out in Schedule 1 to the Administrative Decisions Tribunal Rules (Transitional) Regulation 1998 and ADT Practice Note 7: Summons to Attend and Give Evidence; Summons to Attend and to Produce Documents or other things: Tribunal Practice).

17 This Tribunal has consistently taken the position that the common law principles developed in respect of summonses (or subpoenas) ought apply in proceedings commenced in the ADT (See for example Z v University of A [2001] NSWADT 110; Park v Commissioner of Police, NSW Police Service [2000] NSWADTAP 4; Hall v State of NSW (Department of Corrective Services) (No 2) [2007] NSWADT 105; Z v University of A, Dr D & B (No. 4) [2002] NSWADT 14; Battenburg v Chief Executive Officer & Secretary, Union Club [2002] NSWADT 219.) The question of whether it is appropriate for these principles to be applied in respect of a summons issued to a party as opposed to a stranger, in a jurisdiction such as this where discovery is not available, has not to my knowledge been explored in any decision of the Tribunal. It might be useful to address this issue at some stage but this is not the occasion. I proceed on the basis that the common law principles apply.

18 Jordan CJ, in The Commissioner for Railways v Small (1938) 38 SR (NSW) 564, set out what is now widely considered to be the authoritative statement of the general principles governing the issue of a summons or subpoena addressed to a third party, in NSW. These have been conveniently summarised in a decision of this Tribunal, Z v University of A [2001] NSWADT 110 (at [19] and [23]). The following extract taken from that decision is relevant to the objections raised by the respondent in these proceedings:

The documents must have some apparent relevance to the issues to be decided in the case. In other words, the summons must have a legitimate forensic purpose: see National Employers Mutual General Association Ltd v. Waind and Hill [1978] 1 NSWLR 372 at 385; Trade Practices Commission v Arnotts Ltd (1989) 88 ALR 90 at 103; Australian Competition & Consumer Commission v Shell Co of Australia Ltd (1999) FCA 212; Park v. Commissioner of Police, NSW Police Service [2000] NSWADTAP 4.

It is not permissible for a party to use a summons for the purpose of “fishing”, that is, not to obtain evidence to support his case but to discover whether there is a case at all or to discover the other side’s evidence.

19 In National Employers’ Mutual General Association Ltd v Waind & Hill, Moffitt P identified what he characterised as three-steps in the subpoena process. The first two steps concern the production of documents to the Court and the order for inspection; the third involves the admission of any documents produced into evidence. His Honour took the view that where an objection is raised to the inspection of the documents it was necessary for the judge to inspect the documents and determine whether they have ‘apparent relevance to the issues’. He stated (at 385):

…in my experience it has long been the practice in this State for the judge, even against opposition, to exercise a discretion to allow one party or the other to inspect documents which appear to be relevant to the issues, whether or not in admissible form. As I understand past practices, where, however, objection is raised by the owner of the documents, the judge examines the documents with some care to ensure there is no abuse of the subpoena, and to determine whether the documents appear relevant in the sense that they relate to the subject matter of the proceedings, in which event he will permit inspection by one or both parties at an appropriate time. The question of their admissibility without more, in accordance with the rules of evidence, does not then arise because, if relevant, they may be admitted in a variety of ways, as by first establishing facts or adopting procedures which make them admissible or by their being admitted by consent. If apparently relevant, I do not see how the objections of the stranger could prevent their admission in evidence, by consent or otherwise, or the inspection which may lead to this occurring. The ultimate question of whether they are ruled to be relevant and/or admissible is left to the third stage of receiving evidence. In my view, this practice is within the wide judicial discretion already referred to, to permit inspection of documents in the control of the court pursuant to a valid subpoena.

The crucial question in relation to the exercise of the discretion to permit inspection in the second step is whether the documents have apparent relevance to the issues. It is at the third step that questions between the parties of relevance in fact and admissibility are ruled upon. The judge is in some difficulty in determining whether documents are relevant prior to the presentation of the evidence or at the commencement of the case.

20 In the recent case of A v Z [2007] NSWSC 899, Brereton J explored whether it was necessary for the issuing party to establish that the documents called for will ‘materially assist [their] case’. While acknowledging that there was ‘significant authority’ for that proposition, including Carroll v Attorney-General of New South Wales (1993) 70 ACrimR 162 and R v Saleam (1989) 16 NSWLR 14, His Honour concluded that the stricter test adopted in Carroll and Saleam had been applied in the ‘special context of a subpoena addressed to police for the production of documents in connection with the prosecution in which those documents might be used’. He concluded that the ‘general test’ as expressed in Waind and Hill ought be applied in the case before him where the documents were not sought in the context of a prosecution but nevertheless were held in the custody of the police.

21 His Honour pointed to the dangers of applying the stricter test adopted in Carroll and Saleam:

The stricter test would require an issuing party to be able to predict the contents of documents potentially relevant, and would unduly constrain the ability of litigants to investigate the facts. In a medical negligence case, for example, one cannot know in advance whether the doctor’s and hospital’s notes are likely to assist one party or the other, but no-one could suggest that there would be no legitimate forensic purpose in issuing a subpoena for their production. In Brand, [ Brand v Digi-tech (Australia) Ltd [2001] NSWSC 425] Hunter J concluded (at [36]):
I think it is indisputable that, if the subpoenaed documents are by their description arguably relevant or capable of providing a legitimate basis for cross examination on credit matters, then an application to set aside a subpoena on the grounds of irrelevance of the documents to the proceedings is misconceived. It is equally clear, in my view, that, if the description of the documents is such as to admit of a finding that the documents are manifestly irrelevant and incapable of touching matters of credit, then the issuing of such a subpoena represents an abuse of process.

22 Adopting this approach, the test to be applied in this case is: do some or all of the documents produced have apparent relevance to the issues in dispute?

Privilege

23 The principles of legal professional privilege (characterised as ‘client legal privilege’ under the uniform Evidence Acts) are well known. As Gleeson CJ, Gaudron, Gummow and Hayne JJ stated in The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 77 ALJR 40 at [9] (footnotes omitted):

It is now well settled that legal professional privilege is a rule of substantive law which may be availed of by a person to resist the giving of information or the production of documents which would reveal communications between a client and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings.

24 It is argued for Mrs Graham that the respondent is not entitled to claim privilege in respect of any documents prepared or received by its in-house legal advisers.

25 I cannot agree with that proposition. The High Court in Waterford v Commonwealth of Australia (1987) 163 CLR 54 considered whether legal advice given by lawyers employed by a government agency was protected by legal professional privilege. The majority (at 62) said:

In our opinion. ... there is no reason to place legal officers in government employment outside the bounds of legal professional privilege. The proper functioning of the legal system is facilitated by freedom of consultation between the client and the legal adviser. ... To our minds it is clearly in the public interest that those in government who bear the responsibility of making decisions should have free and ready confidential access to their legal advisers. Whether in any particular case the relationship is such as to give rise to the privilege will be a question of fact. It must be a professional relationship, which secures to the advice an independent character notwithstanding the employment.

26 The same principles apply to salaried legal officers in government departments and salaried legal officers in private corporations. (See Alfred Crompton Amusement Machines Limited v Customs and Excise Commissioners (No. 2) (1972) 2 QB 102, cited with approval in Australia by the majority of the judges in Waterford v the Commonwealth; Ritz Hotel Limited v Charles of the Ritz (No. 4) (1987) 14 NSWLR 100; Australian Hospital Care Pty Limited v Duggan (No. 2) (1999) VSC 131.)

Should access be granted?

27 Packets 1 and 2 Both packets contain documents from the files of the respondent’s Professional Standards Conduct Unit (PSCU). The respondent asserts privilege in respect of all documents contained in the packets.

28 The documents contain among other things correspondence between the respondent’s officers and its legal advisers, both in-house and external, in relation to the complaint lodged by Mrs Graham with the President of the Anti-Discrimination Board. It also includes file notes made by officers of the respondent, summarising the legal advice received about Mrs Graham’s complaint.

29 Based on the authorities cited above, it is apparent that the respondent is entitled to claim privilege in respect of those documents including any created by members of its in-house legal team.

30 It is unarguable in my view that the documents enclosed in Packets 1 and 2 are privileged and therefore the claim for privilege must be upheld.

31 Packet 3 The respondent describes the documents contained in this packet as ‘the IR file’. It would appear that the file consists of documents created or gathered for the purpose of the unfair dismissal claim brought by the complainant against the Ambulance Service. Counsel for the respondent, Ms Anderson, advises that she inspected the file and concluded that all documents contained were subject to legal professional privilege. On the basis of that assurance the claim for privilege is upheld.

32 Folder 5 (the red folder) The respondent claims that all documents contained in this folder were held by the PSCU and makes no claim for privilege in respect of these documents. The documents broadly relate to two complaints concerning Mr Priddle that were referred to the PSCU. The first is the allegation made by the complainant referred to at paragraph [11] of these reasons; the second is unrelated and was made by a client of the Ambulance Service.

33 A fact in issue in the proceedings is whether Mr Priddle mistreated Mrs Graham as alleged. Mr Carney contends that the documents sought might or will disclose that Mr Priddle is not the ‘knight in shining armour’ he presents himself to be in his witness statement.

34 Inspection of Folder 5 reveals that the great majority of documents deal with the complainant’s allegation about Mr Priddle and the investigation of that complaint by an external body. In the interests of protecting the privacy of both the complainant and Mr Priddle, I have decided in these reasons not to disclose the details of those allegations. It is sufficient to note that the alleged conduct was said to have occurred over a three-year period; was serious in nature; formed the basis of an unfair dismissal claim made against the respondent, commenced in the Industrial Relations Commission and ultimately settled; has not been substantiated and was entirely unrelated to Mrs Graham’s complaints against the Ambulance Service and Mr Priddle.

35 It seems to me that those documents which contain references to the complaints about Mr Priddle, might have some apparent relevance to the matters that fall to be determined in these proceedings. I do not accept the argument put for the respondent that the documents have no ‘legitimate forensic purpose’ merely because no positive findings of fact were made against Mr Priddle. It may ultimately be that the material will be inadmissible because among other things, any probative value is outweighed by its prejudicial nature. That however is not the issue for determination at this stage of the proceedings.

36 The contested documents could arguably provide a basis for cross-examination and be used to explore whether Mr Priddle is a person who has a record of mistreating others or treating them in a disrespectful fashion. In my view they could have some apparent relevance to the issues that fall to be determined.

37 Accordingly access will be granted. Given the sensitive nature of the subject matter contained in the documents I have decided to restrict access at this stage to the legal representatives of the parties.

38 Folders 1- 4 The documents contained in these folders were apparently received by or created by the respondent for the purpose of the complainant’s unfair dismissal and worker’s compensation claims. The folders include:

Category 1 File notes created by staff of the respondent apparently for the purpose of determining the complainant’s salary and related entitlements and the primary documents, such as time sheets, on which those calculations were based.

Category 2 Evidence and other documents filed on behalf of the complainant in the IRC.

Category 3 Medico-legal reports obtained by the complainant’s legal advisers and apparently served on the respondent.

Category 4 Correspondence between the respondent and the complainant.

Category 5 Various documents relating to the settlement of the complainant’s claims against the respondent

39 After inspecting the documents I conclude that the majority have no apparent relevance to these proceedings. These include the documents described in Categories 1, 4, 5 and possibly 3. Indeed it would seem that the vast number fall outside the class of documents described in the schedule to the summons.

40 Some of the documents in Categories 2 and 3 would appear to have some apparent relevance. These include the statements prepared by the complainant and filed but apparently not admitted in the IRC and a number of medical reports.

41 The respondent contends that it is not open to the Tribunal to allow the applicant to inspect the affidavits that were prepared by the complainant and filed in the IRC, unless it is established that his privilege has been waived. Relying on the decision of Backman J in Director of Public Employment v PSAPOA of New South Wales on behalf of its members Julius Tupua and Kerryn Shearman [2007] NSWIRComm 121, Ms Anderson asserts that the affidavits attract privilege as they were not read in court. She also asserts that some of the medical reports might attract privilege. The applicant rejects both contentions.

42 Before addressing this issue further I have decided to adopt the proposal put forward by Counsel for the respondent and invite the complainant to comment on whether he considers that privilege has been waived. Once his comments are received or, if no comments received after a reasonable period has passed, I will proceed to determine the parties’ submissions on the issue of privilege and also the approach to be taken to extracting from Folders 1 to 4, the documents I indicated in these reasons appear to have no apparent relevance.

Orders

1. The respondent’s claim for privilege in respect of Packets 1, 2 and 3 is upheld.

2. The applicant’s legal representatives are granted access, photocopy and uplift on terms to be determined by the Registrar to the documents contained in Folder 5.

3. The Registrar is requested to write to the complainant and invite him to comment on nominated medico-legal reports and affidavits prepared by him and filed in proceedings commenced in the Industrial Relations Commission by way of an application made under s 84 of the Industrial Relations Act 1996, contained in the Folders 1 – 4. Specifically he is to be invited to comment on whether in his view the documents remain privileged and if so, if he consents to their use in these proceedings.