JULIE SEINOR and COMCARE

[2009] AATA 201

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 201

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/5149

GENERAL ADMINISTRATIVE DIVISION		)
Re		JULIE SEINOR

Applicant

And COMCARE

Respondent

DECISION

Tribunal  Ms R Hunt, Senior Member

Date24 March 2009

PlaceSydney

Decision The applicant is entitled to claim legal professional privilege with respect to communications between the applicant’s former solicitors and Doctor Moorthy and documents created by Dr Moorthy for this purpose.

..................[sgd].......................

Ms R Hunt        
  Senior Member

CATCHWORDS

PRACTICE AND PROCEDURE – Legal professional privilege – litigation privilege – application to Administrative Appeals Tribunal – practical considerations –– privilege applies.

Relevant Legislation

Administrative Appeals Tribunal Act 1975 (Cth) ss 25, 30, 32, 33, 34E, 34J, 35, 37, 40, 43

Evidence Act 1995 (Cth) ss 3, 119

Safety, Rehabilitation and Compensation Act 1988 (Cth)

Relevant Case Law

Farnaby and Military Rehabilitation and Compensation Commission  [2007] AATA 1792

Grant v Downs (1976) 135 CLR 674

Carter v Northmore Hale Davy and Leake (1995) 183 CLR 121

Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357

Bryant and Military Rehabilitation and Compensation Commission (2005) 87 ALD 185

Re Greenbank and Secretary Department of Social Security (1986) 9 ALD 338

Re McMaugh and Australian Telecommunications Commission (1991) 22 ALD 393

Re Lindsey and Australian Postal Commission (1989) 18 ALD 340; 10 AAR 457

………………………

REASONS FOR DECISION

24 March 2009   Ms R Hunt, Senior Member          

1.      The applicant in this case claims legal professional privilege or “litigation privilege” in relation to certain documents produced under summons concerning her application for review of a decision by the Administrative Appeals Tribunal.  Julie Seinor applied to the tribunal for review of a decision denying her claim for compensation under the Safety, Rehabilitation andCompensation Act 1988 (Cth) arising out of her employment. Ms Seinor is represented in these proceedings by a solicitor.

2.      The respondent seeks access to the documents. Ms Bortone for the respondent argues that the documents in question are relevant to the proceedings and will assist the tribunal to reach the correct or preferable decision as the documents are likely to be of probative value in evaluating the respective claims put by the parties.

3.      Previously, Ms Seinor apparently engaged another firm of solicitors to represent her in relation to another matter and those lawyers wrote to Dr Ramdoss Moorthy or contacted him with a view to obtaining a medical opinion. Dr Moorthy furnished a report addressed to those solicitors and he produced a copy of that report and associated papers in response to the respondent’s summons for production of documents to the tribunal. It is these documents to which the respondent has sought access.  Ms Cassidy, on behalf of the applicant, submits the correspondence is protected from disclosure because it was written in circumstances which give rise to a claim for legal professional privilege. 

4.      While accepting that litigation privilege applies in the tribunal, as decided in Farnaby and Military Rehabilitation and Compensation Commission (2007) 97 ALD 788; 47 AAR 11, the respondent argued that the probative value of the material over which the applicant sought privilege outweighed privilege considerations. Further, as there was a lack of medical records concerning the applicant for a considerable period of years, the materials over which privilege was sought would provide a valuable history.

5. I may decide whether the material is protected pursuant to the power in s 40(1D) of the Administrative Appeals Tribunal Act 1975 (Cth) and to give leave to inspect documents produced on summons pursuant to the general power under s 33(1) to determine Tribunal procedure.

6.      

As the President of the tribunal, Downes J, and Deputy President Groom set out in Farnaby, there are practical considerations why litigation privilege exists. The rationale is that “it promotes the public interest because it assists and enhances the administration of justice by facilitating the representation of clients by legal

advisers ...”: per Stephen, Mason and Murphy JJ in Grant v Downs (1976) 135 CLR 674 at 685. The tribunal also referred to more recent authorities, Carter v Northmore Hale Davy and Leake (1995) 183 CLR 121 at 160-161 Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357 per by Stone J at 376-383.

7. Further, s 118 of the Evidence Act 1995 Cth) provides that confidential communications between a lawyer, client or another person is not to be adduced if the client objects. The section reads:

Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of:

(a)  a confidential communication made between the client and a lawyer; or

(b)  a confidential communication made between 2 or more lawyers acting for the client; or

(c)  the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person;

for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.

8. Although the Evidence Act and s 118 in particular deals with evidence and claims preventing disclosure of confidential communications before a court, the same principles may be applied in tribunal proceedings, as was held in Farnaby. Although, by virtue of s 33(1)(c) the tribunal is not bound by the rules of evidence, the tribunal may inform itself as it sees fit and frequently follows these rules when appropriate.

9.      The applicant objects to evidence being adduced of the confidential communication between her former lawyer and Dr Moorthy. These documents have been produced to the tribunal as required but were created for the purpose of giving legal advice in another matter. I can find no compelling authority supportive of the respondent’s argument that the entitlement to privilege for documents created for the purpose of giving of legal advice by a solicitor to a client may be outweighed by the probative value of the privileged documents in relation to the claim before the tribunal. I say this although I note that the tribunal has from time to time referred to the desirability of full and frank disclosure by parties to claims before the tribunal. See, for example, Bryant and Military Rehabilitation and Compensation Commission (2005) 87 ALD 185, per Senior Member J Handley and Re Greenbank and Secretary Department of Social Security (1986) 9 ALD 338, where an applicant for a disability pension refused to release medical reports held by his solicitors with respect to his incapacity for employment. Re Greenbank was followed also by the tribunal in Re McMaugh and Australian Telecommunications Commission (1991) 22 ALD 393.

10.     In the Bryant case, the Senior Member also approved the tribunal findings in Re Lindsey and Australian Postal Commission (1989) 18 ALD 340; 10 AAR 457. The tribunal in the Lindsey case, comprised of Gray J, Senior Member Dwyer and Professor Webster, decided that s 33 of the AAT Act could not be construed as "overriding a fundamental common law privilege unless it does so in clear terms". The tribunal further noted that the provisions of s 37(3) of the AAT Act did operate to prohibit a claim of legal professional privilege. However, the latter section is confined to the duties and obligations of decision makers and their representatives. There is no reciprocal provision about claimants. As well, although there is power under s 33(2) to give directions, this power does not displace legal professional privilege or litigation privilege.

11.     I agree with the discussion by members of the tribunal in the above cases suggesting that full disclosure is helpful to the tribunal but that claimants should not be forced to produce confidential exchanges with legal representatives to the tribunal if they object. In my view, the applicant is entitled to claim legal professional privilege in relation to communications between the applicant’s former solicitors and Dr Moorthy and associated materials produced by Dr Moorthy for this purpose.

decision

12.     The applicant is entitled to claim legal professional privilege with respect to communications between the applicant’s former solicitors and Doctor Moorthy and documents created by Dr Moorthy for this purpose.

I certify that the 12 preceding paragraphs are a true copy of the reasons for the decision herein of Ms R Hunt, Senior Member

Signed:   ..............................[sgd]..............................................

Associate

Date/s of Hearing:  20 March 2009
Date of Decision:  24 March 2009
Solicitor for the Applicant:              Marilyn Cassidy, Slater & Gordon Lawyers
Solicitor for the Respondent:         Anella Bortone, Sparke Helmore Lawyers