KGGY and Comcare (Compensation)

[2024] AATA 1236

KGGY and Comcare (Compensation) [2024] AATA 1236 (27 May 2024)

Division:GENERAL DIVISION

File Number(s):      2024/0456

Re:KGGY  

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:R Cameron Senior Member

Date:27 May 2024

Place:Melbourne

The Tribunal directs that the summons lodged by the applicant be set aside.

...................[SGD].................

R Cameron Senior Member

Catchwords

SUMMONS TO PRODUCE DOCUMENTS – the documents enumerated or described in the summons are irrelevant – summons documents subject to a legitimate claim of legal professional privilege – legitimate forensic purpose or shed light on the questions in dispute – waiver of legal professional privilege – objection by the Fair Work Ombudsman – reasonable administrative action taken in a reasonable manner in respect of employment – directs that the summons lodged be set aside.

Legislation

Safety, Rehabilitation and Compensation Act 1988 (Cth)

Cases

Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49

Federal Court of Australia in New South Wales Council for Civil Liberties Inc v Classification Review Board (No 1) (2006) 236 ALR 313

Mann v Carnell (1999) 201 CLR 1

Marnotta Pty Ltd and Secretary, Dept of Health and Ageing [2004] AATA 800

Trade Practices Commission v Arnotts Ltd & Ors (1989) 88 ALR 90

REASONS FOR DECISION

R Cameron Senior Member

27 May 2024

INTRODUCTION

1. This matter was referred by a Conference Registrar of the Tribunal for hearing and determination by a Member of an objection by the Fair Work Ombudsman (“FWO”) to a Summons to Produce documents issued by the applicant and directed to it.

2. The summons seeks production of 11 documents or categories of documents.

3. At the objection hearing Ms Davenport from the Australian Government Solicitor, appearing for the summonsed party, the FWO, informed the Tribunal that there were 18 documents in total captured by the language used in the summons concerned.

   BACKGROUND TO THE APPLICANT’S CLAIM

4. On 25 November 2022 the applicant made a claim for workers’ compensation. It was a claim for a psychological injury.[1] Subsequently, he was examined by a consultant psychiatrist arranged by the respondent. The consultant psychiatrist expressed the opinion that the applicant was suffering from an adjustment disorder, with mixed anxiety and depression.

   [1] The Claim for Workers’ Compensation is document T 5 in the T documents.

5. A determination following the applicant’s claim for compensation was made by a Delegate of the respondent on 30 January 2023 (“the determination”).[2] The delegate was satisfied that the applicant suffered an adjustment disorder with mixed anxiety and depression. He was further satisfied that the ailment resulted in an impairment. Relying upon the opinion of the consultant psychiatrist he was also satisfied that the applicant’s employment significantly contributed to the condition from which he was found to have suffered.

   [2] The determination is document T 15 of the T documents.

6. Finally, the delegate concluded, for the reasons contained in the determination, that the respondent was not liable to compensate the applicant for the conditions suffered by him because they were suffered, or incurred, as a result of reasonable administrative action taken in a reasonable manner in respect of his employment with the FWO. Therefore, the exclusion contained in the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”) applied.

7. The applicant sought reconsideration of the determination under the applicable provisions of the SRC Act. On 29 March 2023 a reconsideration officer of the respondent made a decision affirming the determination.[3] The reconsideration officer concluded that the applicant’s condition arose as a result of a telephone conversation that he had with a Senior Lawyer at the FWO. It was further concluded by the reconsideration officer that the feedback provided by the Senior Lawyer in that telephone conversation was reasonable administrative action, because it was feedback provided to him in relation to the performance of his duties.

   [3] The reconsideration decision of 29 March 2023 is document T 18 of the T documents.

8. The applicant now seeks a review in this Tribunal of the decision of the reconsideration officer of the respondent made on 29 March 2023.

   CONSIDERATION

9. The FWO challenges the summons concerned on two bases. Firstly, that the documents enumerated or described in the summons are irrelevant. Secondly, that each of the classes or categories of documents identified in the summons are subject to a legitimate claim of legal professional privilege.

10. It is not necessary for the purposes of these reasons to embark upon an extensive excursion into the test of relevancy when deciding whether to allow a summons to produce documents to be issued in this Tribunal or the relevant tenants of the rule of legal professional privilege.

11. In several well-established authorities it has been held that the test of adjectival relevance, for the purposes of issuing a summons to produce documents, is satisfied if the documents concerned could reasonably be expected to possibly ‘throw light’ on the issues in the subject proceeding.[4]

    [4] For instance, see Trade Practices Commission v Arnotts Ltd & Ors (1989) 88 ALR 90, 103 (Beaumont J) and Marnotta Pty Ltd and Secretary, Department of Health and Ageing [2004] AATA 800 (DP Forgie).

12. A confidential communication passing between a client and a legal advisor is subject to legal professional privilege if its dominant purpose is either firstly, to enable the client to obtain, or the advisor to give, legal advice or assistance, or secondly, the giving or procuring of legal advice with respect to litigation that is actually on foot or was in contemplation of the parties.[5]

    [5] Esso Australia Resources Ltd v Commission of Taxation (1999) 201 CLR 49.

13. The applicant asserts that the documents are relevant because they are referred to in a witness statement apparently lodged by a Senior Lawyer with whom he had a discussion on or about 20 September 2022.[6] It was on this date that he contends he first noticed the onset of his conditions from which he now suffers.[7] The applicant contends that the documents concerned would unequivocally demonstrate the chronology of events without having to rely on witness testimony and presumably recollections which he contends would be unreliable.

    [6] The Senior Lawyer at the FWO made a statement 20 December 2022 which is part of document T 8 in the T documents. Also incorporated as part of document T 8 of the T documents is a statement concerning the applicant's workers’ compensation claim made by the Principal Lawyer of the FWO. That statement has also been considered by the Tribunal.

    [7] This contention is made in his "Employee Statement" made on 25 November 2022 (document T 6 of the T documents) and his Workers Compensation Claim Form of the same date (document T 5 of the T documents).

14. Further, in support of his contention that the documents may throw some light on the issues in dispute in this matter, he submits that the documents described in the summons would establish that the actions on the part of the Senior Lawyer at the FWO, causing the onset of the conditions from which he now suffers, and arising during the course of his employment, were ‘operational in nature’ rather than administrative in the sense contemplated by the exclusion in the relevant section of the SRC Act.

15. The applicant, also in support of his contention that the summons to produce documents should be issued, and upon production of those documents by the FWO he be permitted to inspect them, contends that he was the author of some or all of those documents, and further, that they were his work product that was the subject of critical feedback in a conversation that he had with a Senior Lawyer at the FWO on 20 September 2022 and on other occasions. The conversation he had on that day being the trigger for the onset of his psychiatric condition which forms the foundation of his claim.

16. Further, he contends that by reason of the fact that he was the author of the documents and that they have been referred to in statements made by a Senior Lawyer at the FWO for the purposes of these proceedings, any legal professional privilege attaching to the documents concerned has been expressly or impliedly waived. It should be observed that otherwise on several occasions during his oral submissions to the Tribunal, the applicant conceded that the documents described in the summons were subject to legal professional privilege.[8]

    [8] A similar concession or acknowledgement was made in an email from the applicant to the Tribunal and the respondent on 11 April 2024 in the section under the heading ‘Apparent relevance’. In that email, amongst other things, he stated that, ‘the documents are also relevant owing to the fact that they are confidential and subject to legal professional privilege.’

17. A residual argument advanced by the applicant, relying on a decision of Edmonds J in the Federal Court of Australia in New South Wales Council for Civil Liberties Inc v Classification Review Board (No 1),[9] is that if he is permitted to inspect the documents concerned, there is in reality no disclosure outside the Commonwealth, or for that matter a third party, which in effect preserves any legal professional privilege attaching to the documents themselves.

    [9] (2006) 236 ALR 313.

18. Finally, several arguments were advanced concerning both the respondent’s and the FWO’s model litigant obligations. He asserted that the respondent and the FWO had in opposing the issue of the summons by him and production of the several documents referred to in that summons had violated their model litigant obligations. By reason of this fact there were grounds to uphold the validity of such summons and compel production of the documents sought.

19. On the question of relevance, the Tribunal does not consider that any of the documents identified in the summons would serve a legitimate forensic purpose or shed light on the questions in dispute in this proceeding. When one examines the applicant’s employee statement that was lodged with the respondent, his complaints concern the way he was treated by a Senior Lawyer at the FWO in several interactions with her; principally emanating from a conversation he had with her on 20 September 2022. In that statement he does not specifically refer to or identify any of the documents described in the summons concerned. At best his comments recorded in that statement, concerning the statements made by the Senior Lawyer at the FWO, are extremely general and referred to such concepts as ‘Court documents’ and a review of unidentified submissions. There is a reference to a meeting that the applicant and the Senior Lawyer concerned had with lawyers from the Australian Government Solicitor’s office on 30 June 2022, but no detail or anything specific to a document described in the summons can be discerned.

20. When one examines the statement of the Senior Lawyer of the FWO it similarly, rather than referring to any specific documents such as those identified in the summons, speaks in far more general or overall terms. It does not seem from an examination of that statement, let alone the applicant’s statement, that it would be necessary to have recourse to the documents described in the summons to determine whether the ‘feedback’ provided to the applicant constituted reasonable administrative action taken in a reasonable manner, as provided for in the exclusion under the relevant section of the SRC Act. One cannot really see how they would shed any light on the question.

21. In the context of the exclusion for reasonable administrative action taken in a reasonable manner contained in the SRC Act, it really will be for the Tribunal, in the event of a final contested hearing of this application, to assess the evidence of each of the participants in the relevant meetings concerned, including the critical meeting of 20 September 2022 when the applicant contends that his condition was triggered. Further, in the context of these meetings, the applicant in his statement did refer to various documents including an email and screenshots which were generated on or about the time of each of these interactions. To the extent that it is contended recollections may be unreliable, these documents may play a role in terms of reviving people’s memories or assisting in giving their evidence.

22. In any event, it is apparent, as was contended on behalf of the FWO, that the conversation of 20 September 2022 was providing ‘feedback’ concerning the applicant’s performance as a lawyer engaged by it. The documents identified in the summons, it does not seem, could possibly contain observations on the applicant’s work performance that would constitute ‘feedback’ canvassed in the conversation, which may otherwise fall within the exception for reasonable administrative action taken in a reasonable manner, as contemplated by the exclusion in the SRC Act.

23. As for the question of legal professional privilege, there are several matters that are relevant. Apart from the concession made by the applicant referred to previously concerning the qualities of privilege that attached to them, there are several other reasons why the Tribunal considers that the documents are privileged.

24. It was submitted to the Tribunal, and not disputed, that each of the documents enumerated in paragraphs 1 to 6 of the summons were confidential communications passing between the FWO and an external firm of lawyers, namely HWL Ebsworth or the Australian Government Solicitor. The dominant purpose for which these documents came into existence was for the giving or receiving of advice, or for use in existing, or anticipated litigation.

25. The document identified in paragraph 7 of the summons, as is apparent from its description, concerned advice provided by the Australian Government Solicitor concerning ongoing litigation. It has no causative relationship to the events of September 2022 complained of by the applicant. This advice would be clearly protected by legal professional privilege.

26. The remaining categories or classes of documents described in the summons were apparently prepared by HWL Ebsworth, drafting amongst other things, Court submissions and communications with the FWO. Similarly, these documents bear the qualities of those that would be protected by legal professional privilege, and therefore not obliged to be produced for inspection.

27. As for the question of waiver of legal professional privilege, the Tribunal cannot agree that there is any evidence to establish that the FWO has waived the privilege concerned. When a party entitled to assert legal professional privilege performs an act inconsistent with the confidence preserved by it, a waiver of such privilege will be held to have occurred. It may be an express or implied waiver. However, it should be observed that the mere fact a person informs another that they have received advice from a legal practitioner does not indicate an intention on their part to waive the privilege.[10] Disclosure for a limited and specific purpose may not necessarily lead to a loss of the privilege.

    [10] Mann v Carnell (1999) 201 CLR 1, 13-14 [28]–[31].

28. It should be repeated that the Tribunal is satisfied that each of the documents did come into existence for the dominant purposes of either receiving or the provision of advice with respect to existing litigation. They are privileged. The acts of the FWO cannot be construed as a waiver in any way. They are not acts inconsistent with the confidence preserved by the legal professional privilege that those documents attract. The references in the Senior Lawyer’s statement did not indicate an intention to waive the privilege concerned. The statements do not touch on the substance of the advice sought or the advice given. They are, as stated earlier, generic references to characteristics or qualities of the applicant’s work rather than revealing any particular advice sought or given.

29. With respect to the contention that there is no disclosure outside the Commonwealth in reliance upon the decision of Edmonds J in New South Wales Council for Civil Liberties Inc v Classification Review Board & Anor, the Tribunal cannot accept that disclosure to him would not amount to a disclosure outside the Commonwealth. The decision in New South Wales Council for Civil Liberties Inc v Classification Review Board & Anor can be distinguished from this situation as it is not one where there is a single interest, and as Edmonds J described it, ‘disclosure only within one body politic’[11].

    [11] (2006) 236 ALR 313, 317 [20].

30. Finally, with respect to the issue of the model litigant obligations of both the respondent and the FWO the Tribunal cannot agree with the applicant’s contentions. The model litigant obligations cast upon the respondent and the FWO do not vest in the Tribunal some overarching power to compel parties appearing before it to comply with a direction, or perhaps more accurately, compel a party to produce documents in response to a summons which are otherwise subject to findings that they are irrelevant and subject to legal professional privilege, the Tribunal having found that a proper claim for such privilege has been established by the FWO.

31. Accordingly, the Tribunal directs that the summons lodged by the applicant with the Tribunal be set aside.

31.     

32.     I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of R Cameron, Senior Member

......................[SGD]...........................
Associate

Dated: 27 May 2024