Lever and Comcare (Freedom of information) - [2018] AATA 1089

Lever and Comcare (Freedom of information) [2018] AATA 1089 (27 April 2018)
Division:Freedom of Information Division
File Number:2015/5746
Re:Ronald Lever
APPLICANT

AndComcare
RESPONDENT

Appeal from: MR13/00425

DECISION
Tribunal:The Hon. Dennis Cowdroy OAM QC, Deputy President
Date:27 April 2018
Place:Sydney

The Tribunal decides that:
1.Comcare provide access to the applicant, of records obtained by Comcare from ANSTO relating to the applicant’s employment at that agency, including any records held in relation to proceedings instituted by the applicant previously to this application, except any documents in respect of which Comcare has made a claim for legal professional privilege and such claim has been upheld. Such records are to be produced for the period specified in the scope of the application namely from 1 February 2005 to 30 June 2006.
2.Comcare grant the applicant access to all documents held by AGS over which it has constructive possession, being documents prepared by Comcare and forwarded to AGS; or sent by ANSTO to AGS at the direction of Comcare provided;
(a)The documents are in the relevant period; and
(b)Subject to any claim for legal professional privilege

3.The proceedings otherwise be dismissed.

...................................[sgd]................................
The Hon. Dennis Cowdroy OAM QC , Deputy President
CATCHWORDS
FREEDOM OF INFORMATION – request access to certain documents – decision not to continue review – notice under section 71 – whether documents are documents of an agency – constructive possession – legal professional privilege – allegation of fraud and misleading conduct – decision varied.
LEGISLATION
Archives Act 1983 (Cth) – s 27
Freedom of Information Act 1982 (Cth) – ss 4, 11, 15A, 20(1), 24, 24AA, 54W(b), 55K, 57A Part III
Safety, Rehabilitation and Compensation Act 1988 (Cth) – s 71
CASES
Attorney-General for the Northern Territory v Kearney [1985] HCA 60; (1985) 158 CLR 500
Briginshaw v Briginshaw (1938) 60 CLR 336
Capar v Commissioner of Police (1994) 34 NSWLR 715
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 2 ALD 1
Comcare v Foster [2006] FCA 6
Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501
O’Rourke v Darbishire 1920 AC 581
R v Sleep {1861},Le.& Ca 44
Re Adams and Tax Agents Board (1976) 1 ALD 251
Rejfek v McElroy (1965) 112 CLR 517
Ronald Lever v Comcare [2006] AATA 777
Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93
Sun v Minister for Immigration and Border Protection [2016] FCAFC 52
United States of America & Republic of France v Dollfus Mieg et Companie, S.A. & Bank of England [1952] 1 All ER 572
Wentworth v de Montford [1988] 15 NSW LR 348
SECONDARY MATERIALS
Comcare Manual for Psychological Injury Claims
REASONS FOR DECISION
The Hon. Dennis Cowdroy OAM QC, Deputy President
27 April 2018
INTRODUCTION AND SUMMARY

The applicant seeks review of decision of the Office of the Australian Information Commissioner (OAIC) made under section 54W(b) of the Freedom of Information Act 1982 (FOI Act) on 6 October 2015.
The OAIC’s decision was not to continue a review of an internal review decision by the Respondent (Comcare) in relation to an application made by the Applicant (Mr Lever) under the FOI Act dated 14 May 2013 to request access to certain documents. Comcare made its decision in respect of access on 7 August 2013, and varied that decision on 27 May 2015 and 19 August 2015.
History of this application
On 11 September 2006, the AAT made its decision in proceedings number N2005/1163 reported at Ronald Lever and Comcare [2006] AATA 777. Relevantly, Comcare’s solicitor in those proceedings was the Australian Government Solicitor (AGS).
In an undated letter apparently sent on 18 February 2013, Mr Lever made an FOI access request to Comcare (number 2013/1132). Relevantly, items 11 and 12 in the FOI access application were for:
11All documents provided by ANSTO in answer to Mr Pasfield’s Section 71 notice 30 October 2005;
12 All documents provided by ANSTO in answer to Ms Emma White’s Section 71 notice 23 June 2006.
Comcare is an agency for the purposes of the FOI Act. On 26 March 2013, Comcare sent a “Decision Notice” to Mr Lever with respect to his FOI request 2013/1132, together with nine documents released by Comcare.
In an undated letter apparently sent on 14 May 2013, Mr Lever made his FOI access request to Comcare number 2013/3331. The request was as follows:
1All documents constituting the entire file in relation to Ronald Lever, Claim Number 744396/3.
2Without limiting the generality of 1. above all documents relied upon by Comcare in the Decision of 13 May 2005 and the Reconsideration of 9 August 2005 (Reconsideration No: 118542).
3Without limiting the generality of 1. above, the letter of Ian Crakanthorp dated 25 February 2005 referred to in the Reconsideration (Reconsideration No: 118542).
4All Documents that were used in the preparation of the letter (and its Annexures) from the Australian Government Solicitor to Dr June Donsworth dated 13 January 2006 in relation to ‘Ronald Lever and Comcare’ (“the Letter”), including but not limited to:
·         letters or other documents constituting the instructions from Comcare and the Australian Nuclear Science and Technology Organisation (“ANSTO”) used as the basis for the preparation of the Letter;
·         statements of officers or employees of ANSTO;
·         correspondence;
·         medical reports;
·         medical certificates;
·         Summaries;
·         file notes;
·         records of telephone conversations with officers or employees of Comcare or ANSTO used in the preparation of the Letter.
The applicant makes an application under the FOI Act, seeking access to records of Comcare, including his whole employment file and other records relating to the termination of his employment and subsequent proceedings instituted by him against Comcare.
Summonses have been issued to the applicant’s former employer, the Australian Nuclear Science and Technology Organisation (ANSTO), seeking production of similar records. During the hearing of the proceedings, the applicant issued a summons to the Australian Government Solicitor (AGS).
Since the commencement of the hearing, Comcare has provided access to all of its records which it says the applicant is entitled to have access. Two areas of contention remain, namely records over which Comcare claims legal professional privilege, and any records obtained by AGS either as a result of a notice issued by Comcare on 23 June 2006 under s 71 of the Safety, Rehabilitation and Compensation Act (Cth) (SRC Act) (s71 notice), or sent to AGS at the direction of Comcare.
The scope of the application is stated hereunder. A description of all records in respect of which access has been provided to the applicant is listed in the closing paragraphs of these reasons.
As to the summons issued to AGS by the applicant, details of the response are referred to in these reasons. The applicant subsequently withdrew the summons. Accordingly, the Tribunal can make no order or direction to AGS in these proceedings.
As to a summons issued to ANSTO, that organization has also conducted searches in its records. The summons has been answered, and since ANSTO is not a party to these proceedings, no order can be made in relation to it in these FOI proceedings.
For the reasons provided hereunder, the Tribunal has upheld the claim for legal professional privilege. However, the Tribunal considers that records held by AGS not produced under the s 71 notice are records held by AGS only because Comcare is their client. Accordingly, access to such records is to be given to the applicant.
Facts
The applicant was dismissed from his employment with ANSTO in or about 2005. The applicant alleges false and fraudulent conduct by ANSTO in relation to himself and in relation to another employee, Ms Juric. The applicant and the other employee were allegedly found in an area of ANSTO's secure premises at a time when the other employee’s security pass was suspended. ANSTO alleged that such conduct constituted a security breach, which was at all times denied by the applicant (the incident).
The event which is at the centre of the claim results from the detection by security of a reported security breach at the premises of the Atomic Energy Commission’s (now ANSTO) Lucas Heights Nuclear Reactor. An Australian Federal Police Report dated 20 October 2004 records that the applicant was found to have brought a female person, Ms Juric, into the site. Ms Juric’s security access to buildings on the site was suspended at the time of the incident.
A preliminary investigation report conducted by Mr Russell Tuckwell dated 1 November 2004 concluded that the applicant may have potentially breached his employment “in relation to this security incident and he has failed to notify of his absence and associated reasons”.
Thereafter, by letter dated 3 November 2004, the applicant was directed to attend a meeting at 2pm on 4 November 2004. Such action was stated to be taken pursuant to cl 36.2 of an Enterprise Bargaining Agreement made between ANSTO and its employees.
Whether it was a consequence of this event, or a combination of other events, which led to the applicant’s termination, is not known on the evidence before the Tribunal, nor is it relevant to the FOI claim. The applicant has alleged fraud by the Australian Federal Police (AFP) and by various employees of ANSTO arising from the incident.
On 1 February 2005, the applicant made a claim for compensation in respect of a stress-related condition which the applicant asserted was caused by his employment. The claim was denied by Comcare on the basis that the injury claimed to have been suffered, did not satisfy the relevant criteria for a compensable injury. An internal review by Comcare arrived at the same conclusion. Thereafter, a review in this Tribunal found that the injury allegedly suffered by the applicant was not compensable under the SRC Act: see Ronald Lever v Comcare [2006] AATA 777, reasons published on 11 September 2006. The Tribunal held that the applicant’s claim for compensation could not succeed. The claim could not succeed because the applicant’s injury did not result from any action taken in respect of the alleged security breach, but as a result of the applicant’s failure to achieve a promotion, transfer or benefit in connection with his employment.
In the review hearing, Comcare relied upon a psychiatric report prepared by Dr June Donsworth relating to the applicant. The applicant maintains that the instructions provided to the psychiatrist were fraudulent, that Comcare and ANSTO provided false and misleading information to the medical expert; and that both agencies misled this Tribunal at the hearing of his dismissal claim. The applicant seeks to locate such instructions and other documents relevant to the formation of the psychiatrist report and the opinions expressed therein. It should be noted for convenience that access to the brief to Dr Donsworth has been given to the applicant.
The applicant’s claims
The applicant claims:
(a)that Comcare is denying his legitimate claim for compensation in circumstances where he has evidence that Comcare has knowingly misled the Tribunal and its medical expert;
(b)that Comcare and ANSTO have acted together to deny his claim for compensation by providing false information to the psychiatrist, Dr Donsworth, engaged by Comcare at the time of his claim for compensation for wrongful dismissal;
(c)that certain persons have been complicit in such conduct as follows:
(i)Ms Briony Eales, an AGS employee who allegedly created Comcare's brief to Dr Donsworth;
(ii)Mr Wayne Cartwright, an officer of the Australian Federal Police Protective Services (AFPPS) who allegedly fabricated a false Protection Incident Report (PIR) 58/04 relating to the breach of security which the applicant claims constituted a false Commonwealth document; that there was collusion between other ANSTO employees, namely Mr Cartwright, Mr Ryan, an ANSTO security adviser and/or Mr Davies, ANSTO Industrial Relations Adviser, who were all involved in "the fraud”.
(iii)Ms Jenny Schulz, the Comcare officer who, on 13 May 2005, denied Mr Lever's claim for compensation. The applicant asserts that she failed to make any enquiries, read her brief or investigate the applicant’s medical condition;
(iv)Mr Stephen Pasfield who reconsidered the decision by Ms Schulz to deny Mr Lever’s claim for compensation and who the applicant claims acted inappropriately with Mr Davies.
Mr Lever has issued summonses to each of the above persons to give evidence.
Issues raised by the Applicant:
Whether the OAIC’s decision made on 6 October 2015 is the correct and preferable decision.
The scope of Mr Lever’s application to the Tribunal (AAT) for review dated 2 November 2015 in these proceedings numbered 2015/5746, and in particular:
(a)whether it is limited to a review of OAIC’s decision made on 6 October 2015;
(b)whether it extends to a review of Comcare’s internal review decision made on 7 August 2013 with respect to FOI request 2013/3331;
(c)whether it extends to a review of Comcare’s internal review decision made on 26 March 2013 with respect to FOI request 2013/1132, the corollary being whether the AAT has jurisdiction to review that request; and
(d)whether it extends to a review of Comcare’s original decision made on 28 November 2013 in respect to an FOI request made by Mr Lever on 26 November 2013, the corollary being whether the AAT has jurisdiction to review that request?
Whether any of the documents described in three notices served by Comcare on ANSTO under s 71 of the SRC Act on:
(a)30 October 2005;
(b)24 January 2006; and
(c)23 June 2006,
are “documents of an agency [Comcare]” for the purposes of ss 11(1) and 15(1) of the FOI Act and as defined in s 4(1) of the FOI Act?
Whether Comcare ever had “constructive possession” of any of the s 71 documents within the meaning of section 2.32 of the FOI Guidelines issued by the OAIC?
Has the applicant complied with s 15A of the FOI Act to the extent that the s 71 documents are personnel records and, if not:
(a)does he have any right of access vis-à-vis Comcare to the s 71 documents under ss 11(1) and 15(1) of the FOI Act; and
(b)does the AAT have jurisdiction to review any decision of Comcare with respect to the s 71 documents?
Has Comcare produced all documents in response to Mr Lever’s FOI request 2013/3331 subject to Comcare’s claim for LPP for certain documents that come within the scope of that request?
Is Comcare properly asserting a claim of LPP for those documents within the scope of Mr Lever’s FOI request 2013/3331 for which Comcare is claiming LPP?
Several of the above questions were not relevant to an FOI application, the sole purpose of which is to determine whether access is to be given to an applicant.
SCOPE OF THE APPLICATION
The applicant in these proceedings seeks access to the following records from Comcare:
(a)All documents constituting the entire file in relation to Ronald Lever, claim number 744396/3;
(b)Without limiting the generality of (a) above, all documents relied upon by Comcare in the decision of 13 May 2005 and the reconsideration of 9 August 2005 (Reconsideration Number 118542);
(c)Without limiting the generality of (a) above, the letter of Ian Crakanthorp dated 25 February 2005 referred to in the Reconsideration (Reconsideration No 118542);
(d)All documents that were used in the preparation of the letter (and its annexures) from the Australian Government Solicitor to Dr June Donsworth dated 13 January 2006 in relation to ‘Ronald Lever and Comcare’ (the letter), including but not limited to:
·     Letters or other documents constituting the instructions from Comcare and the Australian Nuclear Science and Technology Organisation (“ANSTO”) used as the basis for the preparation of the letter
·     Statements of officers or employees of ANSTO
·     Correspondence
·     Medical reports
·     Medical certificates
·     Summaries
·     File notes
·     Records of telephone conversations with officers or employees of Comcare or ANSTO used in the preparation of the letter
The period for which the applicant requested the above documents was from 1 February 2005 to 30 June 2006 (the relevant period).
OBSERVATIONS
At the outset, it should be noted that the application, having been brought under the provisions of the FOI Act, is limited to the question of whether access should be provided to documents held by Comcare in the period specified in the application. The Tribunal is not invested with a wide ranging power to determine whether fraud, corruption and other potentially criminal matters are established. It has been held, for example, that the Tribunal has no power to determine the constitutionality of legislation, and that it must proceed on the basis that legislation is valid, even though a party might challenge it: see Re Adams and Tax Agents Board (1976) 1 ALD 251. Similarly, in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 2 ALD 1 at 7, the court observed that if a question of a legal nature arises, the applicant should first approach a Court for a decision on the question. As referred to in Lawlor, the Tribunal is not a Chapter III Court, and the Tribunal would exceed its jurisdiction if, in this instance, it exceeded the remit under the FOI Act.
The “core function” of this Tribunal is “one of review”: see Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93 at [48]. It is required to proceed with as “little formality and technicality”: see s 33(1)(b) of the AAT Act.
Comcare, as the insurer of ANSTO, sought documents from ANSTO relating to the applicant for use in the compensation claim (s 71 documents). The request was made pursuant to section 71 of the SRC Act which relevantly provides:
Without limiting the generality of section 70, Comcare may, by notice in writing, require the principal officer of an Entity, a Commonwealth authority or a licensed corporation to give Comcare, within such period as is specified in the notice, such documents or information (or both) as are specified in the notice, being documents or information in the possession, custody or control of the Entity or authority that are relevant to a claim made by, or in relation to, an employee of the Entity or authority or that relate to the performance of functions or the exercise of powers by the principal officer under Part III. The documents were provided by ANSTO to Comcare.
Comcare Records
Since the inception of these proceedings, developments have taken place which has resulted in Comcare providing access to the applicant of all documents which it has in its possession, and further all ANSTO documents which, under s 71 of the SRC Act, ANSTO as the employer was required to supply to Comcare. In fact, such records were sent from ANSTO directly to the AGS for use in proceedings brought by the applicant for the compensation claim. However, as discussed hereunder, other documents may be held by AGS on behalf of Comcare.
At the commencement of these proceedings, Comcare stated that it had provided access to the applicant for all the documents which it holds. It acknowledged that other records were provided to the AGS for use in the litigation initiated by the applicant and that those records had been archived with other records held by AGS. Comcare stated that it would be costly to retrieve the documents produced by Comcare to AGS. The estimated retrieval cost provided is approximately $13,574. Comcare submitted that accordingly, without such payment, the documents are not in its constructive possession. Comcare relied upon the provisions of ss 24 and 24AA of the FOI Act. Section 24 of the FOI Act relevantly provides:
24 Power to refuse request – diversion of resources etc
" (1) If an agency... is satisfied, when dealing with a request for a document, that a practical refusal reason exists in relation to the request (see section 24AA), the agency...
must undertake a request consultation process (see section 24AB); and
if, after the request consultation process, the agency... is satisfied that the practical refusal reason still exists – the agency... may refuse to give access to the document in accordance with the request."

Section 24AA describes the existence of a "practical refusal reason". In summary, such a reason exists in relation to a request for a document if either or both of two criteria are satisfied.
Comcare stated that on 29 July 2016, AGS discovered electronic copies of the s 71 documents after the applicant had provided Comcare a single page "screenshot" of an AGS index of the 71 documents. AGS then provided Comcare the electronic s 71 documents from their computer system at no cost. The applicant was then given access to such documents.
When the hearing of this application resumed on 15 February 2018, the Tribunal was informed Comcare had provided to the applicant all documents which Comcare held in its possession. Comcare also provided to the applicant all documents which have been provided to AGS pursuant to the s 71 notice. Comcare elected to meet the cost required by AGS to search through its records and produce those documents which had been provided to AGS. However, documents which Comcare claims are subject to legal professional privilege have not been made available to the applicant. Nor have other records held by AGS been made available which could be in the control of Comcare.
AGS documents
The applicant submits that the electronic s 71 documents provided by AGS do not comprise all of the s 71 documents. He maintains there must be more documents contained in 23 hardcopy files held by AGS. The applicant has not been able to particularize nor identify any document which he asserts is still held by AGS. The applicant accordingly issued a summons to AGS requiring it to produce all records relating to his claim.
Mr Cameron Robert Hutchins, a lawyer on behalf of AGS, provided, in answer to the summons and a Direction made by the Tribunal, an affidavit sworn on 25 October 2017. Mr Hutchins provided oral evidence before the Tribunal because Ms Eales, who formerly had conduct of the proceedings between the applicant and Comcare, had ceased working for the AGS.
Mr Hutchins produced a folder of documents, and his affidavit described the searches that had been undertaken. He stated that a number of boxes were sent to him from the Melbourne office of AGS in May 2017. He conducted a review of AGS’s files relating to the 2005 proceedings involving the applicant up to 2017. He described the contents of four boxes. Exhibited in his folder is a copy of a bundle titled “Section 71 documents” which he located. He stated:
“Having completed these searches, I am not aware of any additional enquiries AGS can perform to locate section 71 documents in its possession relating to the 2005 proceedings”
When giving his oral evidence, Mr Hutchins stated that his search was directed to locating the documents in answer to the s 71 notice. Such records were located and the applicant has been given access to those records. Mr Hutchins acknowledged the possibility that other documents may exist in approximately 23 other files. Those documents had not been inspected, since it was understood that the searches for records was to be in relation to s 71 records only. It is not known whether the 23 files contain documents the subject of legal professional privilege. He indicated that it would be an onerous task to search every record contained in the files to determine whether there were any documents which answered the summons.
Following such testimony, the applicant withdrew his summons issued to AGS. AGS is not a party to this application. In view of this fact, the Tribunal has no power to make any order, requiring AGS to undertake further searches, nor requiring AGS to produce documentation.
Comcare states that the applicant has not compared the documents he claims to be missing with the s 71 documents provided to him during his claim for compensation in the matter of Ronald Lever and Comcare [2006] AATA 777, nor with the electronic s 71 documents provided to him on 29 July 2016. Comcare submits that if the documents are identical, or substantially identical, the process of searching through 23 hardcopy files to extract any additional documents is likely to be futile.
Does Comcare have possession of the documents held by AGS?
Part III of the FOI Act provides the right of a person to obtain access to documents which comprise a document of an agency, other than an exempt document. The phrase "document of an agency" is defined in s 4 of the FOI Act as follows:
"A document is a document of an agency if:
(a) the document is in the possession of the agency, whether created in the agency or received in the agency; or
(b)...(Not relevant)"
Comcare has retrieved all of its documents provided to AGS under s 71. For completeness however, it should be noted that Comcare informed the Tribunal of the following:
(a)that it has carried out extensive searches both through hard and electronic copies of the applicant’s claim files;
(b)that it confirms that the documents sought are not located in any of his claim files;
(c)that following a finding of the Tribunal, copies of three s 71 notices dated 30 October 2005, 24 January 2006 and 23 June 2006 were located;
(d)that documents held by ANSTO in response to each s 71 notice were provided directly by ANSTO to Comcare's legal representative, being AGS, in Sydney during 2005 and/or 2006;
(e)Comcare was never provided with any copies of the documentation;
(f)That the documents, for which access is sought, are not in its possession, but rather are in the possession of AGS.
On 29 April 2015, Comcare contacted AGS to determine if they held copies of the documents provided to it by ANSTO. AGS found 23 files in archives pertaining to the applicant’s Tribunal matters. The cost of assessing each file to locate the documents would be approximately $3,800. These documents, however, may have never formed part of Comcare’s records.
Because of the statutory relationship created between Comcare and AGS by the SRC Act, the records provided to AGS by Comcare in satisfaction of the s 71 notice constitute documents over which Comcare has possession. This has been recognised by Comcare, which has now made such records available at its expense. Other documents may have been created by AGS, and additional documents may have been documents provided by ANSTO directly to AGS.
The obligation under s 11 of the FOI Act, upon an agency, is to provide access to documents in the possession of the agency. As has been stated by Madan JA in WJ Blakeman Ltd v Associated Hotel Management [1986] KLR 156:
"The term "possession" is always giving rise to trouble. As Viscount Jowitt said in United States of America & Republic of France v Dollfus Mieg et Companie, S.A. & Bank of England [1952] 1 All ER 572:
"The person having the right to immediate possession is, however, frequently referred to in English law as being the " possessor".
There are other authorities which establish that the word "possession" may mean effective, physical or manual control and not merely as a physical condition. As was observed by Wiles J in R v Sleep {1861} Le. & Ca 44:
"Possession does not consist merely in manual detention suppose I request a bystander to hold anything for me, it still remains in my possession."
Perhaps the most succinct observation concerning the ownership of such documents is the observations of Hope JA in Wentworth v de Montford [1988] 15 NSWLR 348 at 355 where his Honour referred to several scenarios and said, inter alia:
"A number of considerations can be discerned... as being relevant in the determination of ownership. These include whether or not the client was charged for the creation of the document, and whether the solicitor created the document for his client's benefit or protection, or did so for his own benefit and protection".
The effect of the notice issued under s 71 was to require ANSTO to produce records relevant to the applicant’s compensation claim. The Tribunal is satisfied that Comcare had “possession” of the documents contained in the 23 files, but only if such records were created by Comcare or were obtained by Comcare from ANSTO or third parties and forwarded to AGS at Comcare’s direction. However, Comcare never had possession of other records which may have been sent directly by ANSTO to AGS without Comcare’s involvement. Any such documents were never in the constructive possession of Comcare.
Such conclusion follows from the provisions of s 71 of the SRC Act.
ANSTO
The next issue concerns the question of access by the applicant to the archive tapes held by ANSTO. ANSTO is not a party to this application. Rather, as previously mentioned, it has been summoned to appear and produce records. The applicant’s summons to ANSTO was not answered, because of its width and was objected to as being oppressive. However, Comcare issued a summons to ANSTO, and documents were produced. Access was granted to the applicant to inspect such documents from 20 July 2016. The applicant inspected them on 12 October 2016. Comcare was granted access to such documents on 27 July 2016 and a Comcare officer inspected them on that day.
ANSTO, by its solicitor Ms Jodi Jane Solly, has provided an affidavit sworn 14 September 2016 which refers to the creation of employment files with ANSTO. The applicant’s employment file was opened on 29 April 1999 and a paper based file was prepared. Hard copies of personnel files were stored alphabetically in a lockable compactus or in a secure room at the Human Resources section of the building known as building number 25 at ANSTO. Ms Solly explained that when an employee ceases working with ANSTO, files relating to the employee are stored in a building known as building number 32 where they are locked in compactus. Ms Solly explained in her affidavit that various files may exist, namely industrial relations files and workers’ compensation files.
After the applicant’s request was made under s 15A of the FOI Act, Ms Solly searched for files in building number 25 and 32 but was unable to locate the applicant’s original personnel file. Accordingly, she sought information from ANSTO's solicitors, namely Henry Davis York, who were involved in the litigation at an earlier time concerning the applicant.
Ms Gemma Larkins, a solicitor employed in the legal department of ANSTO, was called to provide evidence in relation to the production of documents in answer to the applicant’s summons. Ms Larkins provided evidence as Ms Solly had left the employment of ANSTO. She was extensively cross-examined by the applicant. Ms Larkins found no original documents. Ms Solly had searched boxes located at the offices of Henry Davis York. No original documents were found, but a copy of the applicant’s personnel file was located. Such file has been provided to the applicant. However the original file remains missing; possibly because it has been used in previous industrial proceedings. The only possible record that may remain relating to the applicant could be on archive tapes. Ms Larkins stated that all records had been produced in answer to the summons, and that the applicant had been provided access to those records.
ANSTO has archival or back-up tapes which could be searched. Ms Larkins informed the Tribunal that 24 million files had been examined in the search for the applicant’s name. Ms Larkins estimated it would cost ANSTO approximately $4,000 to access the archive tapes to determine whether there are in fact any documents relevant to the applicant.
Since ANSTO is not a party to these proceedings, there is no power for the Tribunal to order a non-party to proceedings to incur expense, as sought by the applicant.
Fraud and Legal Professional Privilege
Despite the indication from the Tribunal that it has no power to make any findings of fraud, the applicant sought to pursue his claim that various persons had engaged in fraudulent conduct so that he could use such a finding to set aside the claim for legal professional privilege over documents held by Comcare.
Counsel for Comcare provided the Tribunal with a list of documents in respect of which legal professional privilege was claimed. The Tribunal considered each document in respect of which such claim is made and determined that, subject to approximately three documents, the claim was properly made. A description of the documents contained in the list was provided to the Tribunal and also to the applicant.
The Tribunal has no power to make any declaration of fraud or illegal conduct, as such is the function of a court. The applicant can approach a court for such declaratory relief. Nevertheless, the court will consider the claim solely for the purpose of considering whether a prima facie case of fraud or illegal conduct exists.
The applicant’s assertions
The applicant asserts:
(a)that the Australian Federal Police report of the incident was corrupt. He asserts that it contained inaccuracies. He states that the report contains false statements. The thrust of his submissions relate to whether a fellow employee, who had been prohibited from entering the secure buildings of ANSTO, had committed any wrongdoing and whether his participation in assisting the employee to enter the site breached any employment practices or security guidelines;
(b)that this information was relied upon by ANSTO and was used in his dismissal. Further, the applicant asserts that various documents, prepared by ANSTO relating to the incident, were not prepared in accordance with an Enterprise Agreement entered into between ANSTO and its employees. In particular, he asserts that ANSTO breached the provisions of clause 36 of the Enterprise Agreement because a report of the incident (Preliminary Investigation Report dated 1 November 2004) was prepared by a manager (Mr Tuckwell) and not by his supervisor (Mr Crakanthorp), as provided in the Enterprise Agreement. The applicant claimed that the manager had no authority to prepare such report.
(c)That Comcare used an erroneous AFP report and a false Protection Incident Report in preparing a brief which was sent to a psychiatrist, Dr June Donsworth for use in defending his compensation claim. Accordingly, the medical report issued by Dr Donsworth was based upon a false premise.
(d)that Ms Jenny Schulz of Comcare, who considered the applicant’s claim for compensation, failed to make appropriate investigations of other medical practitioners as required by a manual issued to Comcare officers known as Diagnostics Statistics Manual No. 4 (DSM 4) (“the manual”) concerning the psychological state of the applicant. Further, she considered the application without regard to the fact that the applicant’s supervisor had not provided a report of the incident but rather a manager.
(e)that Mr Pasfield, who performed the review of the Comcare decision made by Ms Schulz, also failed to contact other medical practitioners and failed to perceive that the correspondence from the employer was signed by a manager and not by a supervisor;
(f)that Mr Pasfield, in effect, delegated his role to the Australian Government Solicitor and did not make any genuine consideration of the applicant’s claim.
To enable the applicant’s claims to be considered, the Tribunal permitted summonses to be issued at the request of the applicant to Ms Jenny Schulz, and to Mr Stephen Pasfield. Each of these witnesses provided evidence by video link. At the request of the applicant, Ms Schulz was recalled to give further evidence.
APPLICANT’S EVIDENCE TO BE RELIED UPON TO ESTABLISH FRAUD
Evidence of Ms Schulz
Ms Schulz stated that she commenced employment with Comcare in 2002. Her role was to consider claims and to deal with reconsiderations of claims. Ms Schulz was a member of the early intervention team. As such, she was involved in the initial determination made on or about 13 May 2005 to refuse the applicant’s claim for compensation. Such claim was made on 11 February 2005, in respect of the following medical condition:
“Hypertension
Work related stress”
Such condition was said to arise from:
“Continual victimisation & harassment by line management and industrial relations adviser, Mr Davies”
The claim was supported by a letter written by the applicant dated 19 February 2005 in which the events supporting the claim were stated.
On the same day as the claim is dated, the applicant’s general practitioner, Dr P.J. Pead, signed a WorkCover Medical Certificate which identified the following medical condition:
“Acute anxiety with secondary depression- work related”
The management proposed was stated to be:
“psychotherapy with clinical psychologist”.
The cause was stated:
“interpersonal conflict in work place with harassment, intimidation and bullying by senior officers.”
Ms Schulz stated that following 28 days of receipt of the claim, a response should be provided. She received the applicant’s claim on 3 February 2005. On 8 March 2005, she received information from ANSTO, the applicant’s employer. On 13 May 2005, she wrote a letter which denied the applicant’s claim. The denial resulted from her assessment that the applicant’s injury did not satisfy the required criteria for a compensable injury.
Ms Schulz acknowledged that she did not speak to the applicant’s psychologist or to ANSTO’s nurse or medical officer before she wrote the letter. She stated that she reviewed the information as she read it relating to both the injury claimed to have been sustained and also to the conflicting claims by the applicant and by his employer concerning the reason for his termination. She did not consider the information disclosed any medical evidence outside the bounds of normal functioning. She also considered that the medical evidence provided by the applicant’s General Practitioner did not satisfy the first consideration, namely whether the applicant was suffering from an injury which was work-related. Ms Schulz acknowledges that the manual was used by Comcare, referred to as DSM 4, which provided that further medical material should be sought where doubt existed as to the injury. Ms Schulz found it unnecessary to seek further medical opinion as was indicated in the manual because at minimum, the basic criteria for a compensation claim did not exist. For this reason, she rejected the applicant’s claim.
Ms Schulz stated that, in view of her consideration that the injury did not constitute an injury as defined in the SRC Act, she was not required to consider any alleged breach of employee duty and that the contact between her organisation and the employer is through the case manager. In this instance, the case manager was identified as Mr Tuckwell.
The applicant said that his claim form was signed by Mr Ian Crakanthorp, Manager, Server Infrastructure Group, but that the applicant’s case manager for the claim was Mr Basil Ellis. Ms Schulz responded to the effect that she had before her the reports from the applicant’s employer and also the applicant’s own statement which disputed the events. However, she considered, in the exercise of her discretion that the claim failed.
It should be observed that Ms Schulz was cross-examined rigorously for more than a day to the point where she broke down. She steadfastly refused to accept the applicant’s persistent demands that she acknowledge that she had erred in her determination of his claim.
Evidence of Mr Stephen Pasfield
On 9 August 2005, Mr Pasfield made the reconsideration of the decision of Ms Schulz. He stated that he did not discuss with her the content of her decision. He states that the claim, having been made in 2005, resulted in him having only a partial recollection of the events. He did not recall speaking to any medical officer, nor psychologist, nor ANSTO’s nurse or medical officer concerning the claim. Mr Pasfield testified that if a claim was before him, which contained conflicting evidence, he would refer the matter to a legal panel. The applicant asserted that his case involved targeting, bullying and harassment. Mr Pasfield denied that he considered the claim was made involving such matters.

Mr Pasfield stated that the issues of interest for the reconsideration were in the applicant’s submissions together with the medical reports balanced against the employer’s response.
Mr Pasfield explained that every employee with which Comcare is involved has a case manager who is to act as the intermediary. The principal purpose is to ensure that a claim, made by an employee, is forwarded and received by Comcare.
Mr Pasfield denied that he conspired to defeat the applicant’s claim and denied any untoward conduct in handling such claim. He made the determination to reject the review on 9 August 2005. In the course of his evidence, he referred to the fact that an email was sent to him from a Mr Davies on 27 February 2006 relating to a conciliation conference to be held on the following day. Mr Pasfield responded asking for Mr Davies’ direct telephone number. Mr Pasfield rejected questions suggesting that such communications were improper.
Questions were put to the witness by the applicant concerning an Australian Federal Police (AFP) Protection Incident Report 530/531. Mr Pasfield said that if the report was on the file, he would have read it.
The applicant further questioned the witness concerning the process to be followed when a claim was received. In answer to the question whether the witness had ever read the applicant’s file, he stated that he obviously did because his notes were in the margin. He confirmed that he treated the claim as a serious claim. The witness stated that he did not ignore the medical evidence but as far as he was concerned, the medical evidence submitted by the applicant did not satisfy the requirements of the DSM 4. The witness stated that the applicant’s claims of hypertension and sleep disturbance did not satisfy the criteria which required further investigation by a medical practitioner. He stated that he referred the claim to the Australian Government Solicitor, as this is the normal practice. The letter which he sent out rejecting the review was based upon the advice provided to him by the Australian Government Solicitor.
Claim for waiver of Legal Professional Privilege (LPP)
The applicant challenges the claim for legal professional privilege made by Comcare on the following basis:
(i)Comcare has acted on false documents in reaching its decision to deny his claim for compensation. In support of such contention, the applicant asserts that he was the subject of wrongful treatment by the AFP;
(ii)The AFP made a false Protection Incident Report relating to him;
(iii)A Preliminary Investigation Report dated 1 November 2014 was provided by Mr Russell Tuckwell. According to an Enterprise Agreement made between ANSTO and its employees, a procedure is laid down for investigation of certain matters at the workplace. Clause 36 provides:
“Where an employee at in a manner which is alleged to be inconsistent with their duty as an employee, as outlined above, it is the duty of any employee in whatever capacity to notify the alleged action to the relevant supervisor…”
The applicant claims that Mr Tuckwell was not the supervisor and accordingly he had no power to sign the Preliminary Investigation Report. The applicant claims that it follows that the report is false.
The applicant claims:
(a)The claim form submitted for compensation dated 4 January 2001 was signed in the spaces provided by:
(i)the case manager Basil Ellis;
(ii)the manager Ian Crakanthorp;
(iii)as at 2 March 2005, the persons who signed the claim form occupied such positions. However, the applicant claims that Mr Crakanthorp should not have signed the form.
(b)That the Preliminary Investigation Report and claim form are false. He claims he suffered psychological injury because of the fact that his claim for compensation was wrongfully determined.
(c)In relation to the evidence provided by both Ms Schulz and by Mr Pasfield, the applicant claims that they relied wrongfully on information supplied to them by ANSTO; that they did not test the truthfulness of the claim; that they did not investigate the claimed medical condition or seek medical advice; that they made an adverse decision in the absence of such evidence; that the provisions of the DSM 4 cannot override the requirement to obtain a medical opinion concerning the nature of the claim set forth in the claim form.
(d)That Comcare prepared a false and fraudulent brief to Dr Donsworth for use in defence of his compensation claim. The falsity is claimed to arise because the instructions to Dr Donsworth paraphrased certain statements from reports, instead of stating them verbatim.
FINDINGS
The standard of proof required to establish the fraud exception to the claim of legal professional privilege is higher than a mere allegation of fraud: see O’Rourke v Darbishire 1920 AC 581 (House of Lords). Further, the applicant must show a “prima facie case” “that reasonable grounds exist for believing that the communication… was made for some illegal or improper purpose”: see Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501: see also Capar v Commissioner of Police (1994) 34 NSWLR 715: see also Attorney-General for the Northern Territory v Kearney [1985] HCA 60; (1985) 158 CLR 500. Ultimately, the Tribunal must reach its decision having in mind the test in Briginshaw v Briginshaw (1938) 60 CLR 336. That decision established clearly that where serious allegations are made, a high degree of satisfaction is required. The “degree of satisfaction for which the civil standard of proof calls may vary according to the gravity of the fact to be proved”; see Rejfek v McElroy (1965) 112 CLR 517 at 521.
But the Tribunal is not a Court. The Tribunal’s powers are restricted to its statutory function of review. There is recognition of the limited power of the Tribunal as expressed in Sullivan at [114]. Further, the observation of the Full Court of the Federal Court of Australia in Sun v Minister for Immigration and Border Protection [2016] FCAFC 52 at [65] are pertinent as follows:
(a)Again, as a general proposition, the common law concept of “onus of proof has no application to administrative decision making. The concept is a hallmark of judicial – and not administrative – decision making”.
The evidence relied upon by the applicant to establish fraud consists of the following:
(a)Ms Schulz and Mr Pasfield rejected the applicant’s claim, and did so on the basis that the medical report of the general practitioner submitted with the claim did not satisfy the criteria in the DSM 4;
(b)Neither Ms Schulz nor Mr Pasfield sought further medical evidence as was open to them as provided in the DSM 4; nor did they account for the applicant’s employment history;
(c)There was a delay in the processing of the applicant’s claim for compensation;
(d)Comcare should not have accepted a report from Mr Tuckwell since he was not the supervisor of the applicant. Accordingly, because Comcare accepted the report in breach of the provisions of clause 36(1) of the Enterprise Agreement made between ANSTO and its employees, the report was a nullity.
(e)The applicant’s asserts that the AFP prepared a false report of the security incident; that ANSTO fraudulently conspired to defeat his claim for compensation; that Comcare acted upon false information from the AFP; that ANSTO made a false report to Comcare; that Comcare conspired to reject his compensation claim; that AGS have been complicit in the fraudulent conduct perpetrated to defeat his compensation claim.
(f)Mr Pasfield wrongfully opined the medical evidence provided did not establish the criteria required under DSM 4. Furthermore, Mr Pasfield relied upon advice from the AGS when confirming rejection of the applicant’s claim.
(g)The instructions to Dr Donsworth were fraudulent, for the reasons referred to above.
Observations
There are several reasons why the claim of fraudulent conduct disqualifying legal professional privilege claim by Comcare cannot succeed.
Firstly, there can be no suggestion that the documents for which legal professional privilege is claimed is related to any fraudulent conduct committed by the AFP or by ANSTO. The LPP documents post-date any such alleged activity and are related to the applicant’s claim for compensation under the SRC Act.
Secondly, the applicant conflates conduct which he claims was fraudulent by the AFP and by ANSTO, with documents which came into existence after the alleged fraudulent conduct. All of the conduct relied upon as being fraudulent occurred well before the date of any document for which legal professional privilege is claimed.
Thirdly, the applicant’s assertions of fraudulent conduct by the AFP and by ANSTO for the purpose of determining LPP are unfounded.
Fourthly, in respect of the alleged illegal conduct of Ms Schulz and of Mr Pasfield, the Comcare Manual for Psychological Injury Claims establishes certain guidelines for the officers of Comcare when assessing claims. In particular, it is noted a psychological injury may require decision makers to seek further medical evidence from a treating health professional or an independent specialist. In this instance, the evidence provided in support of the claim for compensation did not, in the opinion of the Comcare officers, meet the requirement which would have justified seeking further medical opinion. In the exercise of their discretion, Comcare officers were entitled to reach such an opinion on the evidence before them. Even if (and there is no evidence to support it), there was an error by them in the conduct of the applicant’s claim; the breach of a guideline does not give rise to illegality.
The Comcare officers did not ignore the applicant’s claim. Both Ms Schulz and Mr Pasfield were entitled to consider the evidence submitted before making their finding that the injury claimed by the applicant was not compensable.
Comcare was not required to conduct an investigation into the evidence which suggested a security breach. The applicant’s claim failed at the outset because it did not satisfy the criteria. However, even if there were some conduct on behalf of the applicant which was relevant to the claim, the officers were entitled to have regard to the disciplinary provisions or manual operating in the injured employee’s workplace when reaching a conclusion that the claim did not qualify for compensation.
In answer to the reports of ANSTO, the applicant provided a response for consideration by Comcare. Comcare was entitled, in the exercise of its discretion, to accept or reject the claim.
In the reconsideration, medical evidence comprising a report of Dr Pead was addressed, but the evidence still fell short of satisfying the criteria in DSM 4.
The indication provided by Comcare, prior to a conciliation conference that the claim would not be settled at the conference, does not impact upon the any issue of fraud nor does it constitute illegal conduct. The indication only demonstrates that Comcare was not prepared to participate in settlement negotiations and nothing more.
The applicant alleges that Mr Pasfield was in breach of the DSM 4 in respect of conflicting evidence concerning the disciplinary process against the applicant. The allegation is Mr Pasfield relied upon investigation reports which were not written or signed by the applicant’s supervisor. However, the reports were clearly reports authorised by ANSTO, signed by Mr Tuckwell. In the report, the applicant acknowledged that he was aware of a third party (Ms Juric) having access restrictions placed upon her. The report records the applicant as stating:
“he argued with the AFP that she still had a valid security pass for entry to the site and he was aware that she could not access any building on the site”.
It was not Mr Pasfield’s role to investigate and make a determination whether there had been a security breach; and if so, whether the applicant was guilty of such a breach. Nor was it his role to determine whether the report provided by ANSTO was signed by the applicant’s manager or supervisor. The applicant repeatedly claimed that there was evidence of “prima facie fraud”. He specifically addressed such claim in relation to the preparation of the brief to Dr Donsworth.
The authorities referred to previously, make it plain that a mere assertion of fraud does not constitute fraud. There must be proof, to a standard between the balance of probabilities and beyond reasonable doubt: see Sullivan v Civil Aviation Safety Authority [2014] FCA 93. A reasonable suspicion is insufficient, in the absence of some of the legislative prescription, to establish fraud in administrative decision making: see Sun v Minister for Immigration and Border Protection [2016] FCAFC 52.
Dr Donsworth Brief
The Tribunal makes the following findings in relations to the alleged fraudulent brief:
(a)The applicant’s assertion that the instructions, prepared by Ms Briony Eales, lawyer in the employ of AGS, to Dr Donsworth were fraudulent is predicated entirely upon the letter dated 13 January 2006 written by AGS which provided the background to the applicant’s claim for compensation. The instructions, based upon instructions received from ANSTO, and from Comcare, included a section entitled “Background” because various documents were paraphrased in the author’s language. The applicant maintains the instructions were inaccurate, misleading and fraudulent. However, all of the original reports which were the subject of the instructions, and which were the source of the instructions, were copied and were annexed to the letter written by AGS. Further, AGS wrote such brief, acting upon the instructions of its clients who were Comcare and ANSTO.
A further challenge is made by the applicant, on the ground that there was a conflict of interest between AGS as solicitor and Comcare and ANSTO. Such a challenge can be readily rejected, since AGS was merely acting as solicitor on behalf of its clients. Furthermore, the applicant asserts that the following statement in the instructions prepared by Ms Eales, indicates false information and alternatively, a lie. The statement reads:
16. Please contact Briony Eales on the numbers below should you require any further information or document to assist you in your examination of the applicant and the preparation of your report. In fact, a request was made by Dr Donsworth. Both the additional document and the report have been provided to the applicant. The Tribunal finds there is no basis for fraud as alleged in this allegation.
The applicant asserts that there was mistake in the chronology provided to Dr Donsworth. The mistake relates to the date when the applicant’s wife became ill. However, such a matter does not give rise to fraud. There is no suggestion that AGS knew that the date was inaccurate, and in the event, such a mistake appears to be of no consequence to the ultimate issues for determination in the applicant’s compensation claim. The mistake is de minimis.
The applicant asserts that ANSTO made a factual mistake in relation to a statement provided by an employee of ANSTO, Ms Nasser. The applicant claims that ANSTO wrongly interpreted such statement. However, there is no evidence that Comcare was aware of any factual inaccuracy, or ought to have known about it. Accordingly, there is no basis for fraud.
The applicant asserts that there was a further error in a chronology to Dr Donsworth. This is said to result from a statement made by an employee, Mr Cullen however, it is unclear what the matter in dispute relates to and secondly, there is no evidence that Comcare was so aware. This is another example of a de minimis matter.
The applicant challenges a statement made to Dr Donsworth in the chronology. However, it is apparent that Mr Cullen’s statement dated 28 February 2005 is the basis for the proposition. The mere fact that the applicant disagrees with it, is not a ground for finding fraud.
The applicant again challenges a statement in the chronology provided to Dr Donworth, claiming there is no evidence for a conclusion. However, Comcare relied upon source documents in the section 71 documents. The mere fact that the applicant disagrees with the proposition does not constitute fraud.
The applicant claims that there is no evidence to support an item on the chronology concerning Ms Juric’s access rights to emails. It is unnecessary for the Tribunal to consider a matter which is so remote from the issues in this proceeding, save to note that the mere fact he disagrees with ANSTO’s section 71 documents is not a ground for fraud.
The applicant challenges an item on the chronology concerning the provision of access to Ms Juric to enter an ANSTO facility without a security pass. The source is the AFP “Protection Incident Report” dated 20 October 2004 in respect of incident number 58/04. The applicant challenged the accuracy of the report. However, whether or not Ms Juric held a security pass or whether she was restricted in access to the site is not relevant for present purposes. This is merely a disagreement by the applicant with the content of the brief. There is no evidence that he knew or ought to have known about any inaccuracies (if proved to exist) when the AGS briefed Dr Donsworth.
Observations
The information in the brief to Dr Donsworth was provided from source documents which were supplied to AGS. Those documents originated from ANSTO and were produced to Comcare under the section 71 notice dated 30 October 2005. If inaccuracies existed, the applicant has no doubt raised these matters in his previous litigation against ANSTO.
The Tribunal is unable to find any basis for misleading conduct. Further, the Tribunal is unable to find any basis for fraud in conduct or illegal conduct which would defeat a claim for LPP. In fact, not a scintilla of evidence exists to support a claim, as made, for fraud to disentitle Comcare from relying upon LPP.
Further, it should be observed that the Federal Court of Australia in Comcare v Foster [2006] FCA 6 said at [15]:
… Neither section 59 of the SRC Act nor the SRC Act otherwise expressly or by necessary implication aggregates the privilege from production of documents on the ground of legal professional privilege.
The above quotation is provided even though the applicant has not demonstrated that section 59 of the SRC Act is relevant to the issues for determination under the FOI Act.
Conclusion
On 15 February 2018, the second last day of closing submissions, the applicant, without leave, sought to rely upon his 30 page statement to which was annexed a folder containing 673 documents. As the Tribunal had already made directions for the filing of final submissions, and such direction was fulfilled, the applicant had no leave to file the additional material. The Tribunal indicated that it would not accept such material.
The respondent indicated that as the material did not raise any new issue, it did not object to the Tribunal reading it. Accordingly, the Tribunal did so and informed the applicant on 16 February 2008 that it had taken such material into its consideration. The statement reiterates the history of the applicant’s employment and of his claims.
The statement reiterates the applicant’s claims of fraud and illegality. It goes into detail in respect of which there is no evidence; for example, timesheets of various employees of ANSTO. It challenges the evidence provided by Mr Crakanthorp in the Federal Court on 8 December 2006. It refers to policies and manuals which have never been referred to in these proceedings. The Tribunal does not find such material of assistance in determining the freedom of information claim before it.
The allegations made by the applicant in relation to Comcare’s preparation of the brief to Dr Donsworth, is that she was misled by false statements. The basis for such assertion is that a letter was sent to Dr Donsworth accompanying the brief to her. Such letter sought to summarise the circumstances surrounding the applicant’s claimed work injury. The applicant states that the letter is misleading. However, incorporated in the brief were the original documents which had been summarised. The Tribunal is unable to conclude that the summary constitutes false or misleading conduct or fraud.

Further, the exercise of the discretion of Ms Schulz in rejecting the applicant’s claim for compensation has not been shown to be erroneous. A delay of one month in the processing of the claim, longer than usual, does not constitute fraud or misleading conduct. The fact that Ms Schulz did not seek any advice from other medical practitioners or contact the applicant’s general practitioner does not constitute fraud or illegal conduct.
Similarly, the conduct of Mr Pasfield, in relying upon AGS to provide assistance in responding to the review sought by the applicant, does not constitute false or illegal conduct.
The Tribunal also finds that an irregularity with the Enterprise Agreement, such as a manager rather than a supervisor signing a form, does not give rise to illegality or fraud. Such forms include claim forms and reports.
In summary, there is no evidence that Ms Schulz and Mr Pasfield conspired to defeat the applicant’s claim to Comcare. For these reasons, the applicant’s claim that legal professional privilege should be set aside in relation to the documents for which Comcare claims such privilege, does not succeed.
There is no evidence of fraud or other conduct, illegal or otherwise, which this Tribunal can find would be sufficient to disqualify the claim for legal professional privilege.
ARCHIVES ACT
Mr Lever made a submission that the provisions of the Archives Act 1983 (Cth) (‘Archives Act’) apply in relation to his employment records, and that ANSTO was required to keep such records since it is a Commonwealth agency.
The Archives Act applies to a limited class of documents which are to be archived if a decision is made under s 27 of that Act. Such section enables documents having specific significance to be maintained in Commonwealth archives. There is no evidence that any such order has been made in relation to the employment records of ANSTO, or of any documents relating to employment records of that agency. The applicant has not pointed to any provision under the Archives Act by which his employment records were to be archived. Further, this is not an issue for determination on the proceedings under the FOI Act against Comcare.
The applicant has now been given access to records which includes:
(a)All documents constituting the entire file in relation to Ronald Lever, Claim Number 744396/3. Such records include the s 71 documents;
(b)All documents relied on by Comcare in the Decision of 13 May 2005 and the reconsideration of 9 August 2005 (Reconsideration No 118542);
(c)The letter of Ian Crakanthorp dated 25 February 2005 referred to in the Reconsideration;
(d)All documents which were used in the preparation of the letter (and its Annexures) from the Australian Government Solicitor to Dr June Donsworth dated 13 January 2006 in relation to Ronald Lever and Comcare (“the Letter”) including;
(i)Letters or other documents constituting the instructions from Comcare and the Australian Nuclear Science and Technology Organisation (“ANSTO”) used as the basis for the preparation of the Letter; statements of officers or employees of ANSTO; correspondence; medical reports; summaries; file notes; records of telephone conversations with officers or employees of Comcare or ANSTO used in the preparation of the Letter.
Such records comply with the dates of the FOI request, namely 1 February 2005 to 30 June 2006.
Final Observations
As already referred to, these proceedings have come before the Tribunal pursuant to the applicant’s application for review – 2015/5746 made on 2 November 2015. Such application is made pursuant to section 57A of the FOI Act which permits inter alia, a review of a decision of the Information Commissioner made under s 55K or under s 54W(b). The latter section is relevant to these proceedings; the Information Commissioner did not make a decision.
Since the proceedings commenced, Comcare, at its expense, has obtained documents held by AGS under section 71 of the SRC Act. Further, it has provided access to many documents to the applicant. Those documents are as follows:
(a)all the records contained in Schedule A hereto entitled “Comcare’s Schedule of Categories of Discovered Documents”, dated 22 November 2017 except for those documents in respect of which LPP is claimed.
(b)The AGS screenshot of the index of the s 71 documents attached to AGS’s letter to Comcare dated 31 August 2016.
(c)Comcare’s amended index to LPP documents dated 11 December 2017.
(d)The documents described in Comcare’s schedules entitled “ADT Volume 1” and “ADT Volume 2” filed and served on 18 January 2018. For convenience, the schedules filed on 18 January 2018 are attached as “Annexure D”.
The only remaining documents in Comcare’s possession or power, that fall within the scope of Mr Lever’s FOI request, are the documents over which LPP is claimed, and any documents still held by AGS which were sent from Comcare to AGS or sent by ANSTO to AGS at Comcare’s direction. Specifically, the documents over which LPP is claimed, and for which access has not been granted, are:
(a)the documents in Comcare’s “Amended Index to LPP Documents” dated 11 December 2017 except those documents for which LPP has been waived; and
(b)documents produced by ANSTO pursuant to a Summons to Produce Documents addressed to ANSTO issued on 8 August 2016 at Mr Lever’s request, over which Comcare claims LPP.
It should be noted that the applicant has already made claims challenging Dr Donsworth: see Lever v Comcare [2006] AATA 777. In that decision, the Tribunal heard evidence from Dr Donsworth that the flu-like symptoms, tiredness, frustration, feeling poorly, irritability, increasing frequency of migraines, more headaches, sleeping less, and increasing loss of temper and change in relationship with his wife and children did not satisfy a DSM 4 condition.
At [152] of its decision, the Tribunal found:
“We therefore find that Mr Lever was not suffering a recognized psychiatric illness, nor was his condition outside the boundaries of normal mental functioning and behaviour on 1 November 2004…”
At [160], the Tribunal said:
“Given our finding that Mr Lever’s adjustment disorder at the end of December 2004 was the result of his failure to obtain promotion, transfer or benefit in connection with his employment, Mr Lever cannot succeed he has not suffered an injury within the meaning of the Act. It is therefore unnecessary to address the other issues that arose in this case”.
In the absence of any challenge to this decision (although an appeal was filed and dismissed), there is a finding of fact which disqualifies Mr Lever’s claim for compensation. Accordingly, it is puzzling why the applicant has brought these proceedings. No new information has emerged (despite the applicant’s claim to the contrary) which materially changes the factual findings in the circumstances leading to them. All of the challenges made by the applicant to the conduct of the AFP and of ANSTO were known by him prior to the Tribunal hearing of the compensation claim. If the applicant relies upon the evidence given orally by Ms Schulz and by Mr Pasfield, there is nothing in their evidence which establishes any fraud or illegal conduct. Accordingly, it does not assist the applicant.
The applicant commenced proceedings against ANSTO in the Federal Court of Australia: see Lever v Australian Nuclear Science and Technology Organisation [2007] FCA 1251. This claim is brought by the applicant under the Workplace Relations Act 1996 (Cth). The judgement records that the hearing extended over 10 days but was dismissed.
Remaining issues
The applicant claimed there were breaches of various guidelines, not only applicable to Comcare but also in relation to his freedom of information application. Guidelines serve no purpose other than being guidelines. A departure from a guideline or failure to abide by it does not constitute illegal conduct, since no law is infringed.
The applicant also suggested that in the formulation of the AFP report, unauthorised stationery was used. There is no evidence to support such a contention.
The applicant claimed that he was entitled to have all the records to which he has been given access collated in a template formulated by him. Section 20(1) of the FOI Act requires a party to provide “a reasonable opportunity to inspect” the documents. Section 20(2) requires that access be given in the form requested. However, such provision does not require the provision of copies of documents, nor does it require that they be provided in any particular form.
The applicant also asserted that his claim for FOI was a matter of public interest. There is no public interest in this matter, other than ensuring that the applicant’s claim has been heard in accordance with the FOI Act. The applicant has been afforded many hearing days and the respondent has provided, or will be ordered to provide all relevant documents as required by the FOI Act, subject to legal professional privilege.
SUMMARY
As indicated above, Comcare has made available to the applicant all the records it possesses, including the documents held by the AGS under section 71 of the SRC Act. The only documents the applicant has not been given access to are those attracting legal professional privilege.
The applicant claims that other documents held by AGS are in the constructive possession of Comcare. If such records were obtained by AGS outside of the scope of the section 71 notice, and not from Comcare or at its direction, such documents are not and never were in the constructive possession of Comcare.
No orders can be made against AGS, since it is not a party to this application and the summons issued against it was withdrawn.
ANSTO responded to the summons served on it and has provided evidence of the searches it has undertaken. It has fulfilled its obligation under the summons. In any event, no order can be made against it since it is not a party to this application.
DECISION
The Tribunal decides that:
1.Comcare provide access to the applicant of records obtained by Comcare from ANSTO relating to the applicant’s employment at that agency, including any records held in relation to proceedings instituted by the applicant previously to this application, except any documents in respect of which Comcare has made a claim for legal professional privilege and such claim has been upheld. Such records are to be produced for the period specified in the scope of the application namely from 1 February 2005 to 30 June 2006.
2.Comcare grant the applicant access to all documents held by AGS over which it has constructive possession. Being documents prepared by Comcare and forwarded to AGS; or sent by ANSTO to AGS at the direction of Comcare provided;
(a)The documents are in the relevant period; and
(b)Subject to any claim for legal professional privilege.
3.The proceedings otherwise be dismissed.

I certify that the preceding 145 (one hundred and forty-five) paragraphs are a true copy of the reasons for the decision herein of The Hon. Dennis Cowdroy OAM QC, Deputy President.

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Associate
Dated: 27 April 2018

Dates of hearing: 27 November 2017, 19-20 December 2017 , 15-16 February 2018

Applicant: In person

Solicitors for the Respondent: Dr S Thompson, Sparke Helmore Lawyers

Dates of hearing:	27 November 2017, 19-20 December 2017 , 15-16 February 2018
Applicant:	In person
Solicitors for the Respondent:	Dr S Thompson, Sparke Helmore Lawyers