1 All parties to give to the Tribunal and all other parties and the separate representative for the person (if any), the material they rely upon by 31 January 2018.
2 All parties to give to the Tribunal and all other parties and the separate representative for the person (if any), the material in reply by 7 February 2018.
3 The Tribunal denies Mr DAC access to the Medicolegal Report of Dr Z dated 23 August 2017 and obtained under summons.
Catchwords:
INTERLOCUTORY – EVIDENCE – privilege – legal professional privilege – whether legal professional privilege applies to NCAT – statutory provisions and common law – applicant seeking access to capacity report of doctor – whether report in form of advice or for the provision of legal services – dominant purpose for the provision of legal services – held, litigation privilege applies
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
NZC [2017] NSWCATGD 38
Case
[2017] NSWCATGD 38
Decision Date
CaseChat Overview and Summary
In the matter of the New Zealand Citizens (NZC), the dispute involved the application of legal professional privilege to documents obtained under a summons. The case was heard in the Civil and Administrative Tribunal of New South Wales. The central issue was whether the applicant could access a medicolegal report of a doctor, which was argued to be protected under legal professional privilege.
The court had to determine whether legal professional privilege applied to documents obtained in the context of the Tribunal’s proceedings. Specifically, it needed to decide if the privilege was statutory or common law based and whether the report in question was advice given for the purpose of providing legal services. The court examined whether the dominant purpose of the report was for the provision of legal services or another purpose.
The Tribunal found that litigation privilege applied to the report. The court reasoned that the dominant purpose of the report was to provide advice for the purpose of legal proceedings, thus qualifying it for protection under legal professional privilege. The Tribunal concluded that the statutory provisions and common law supported the application of privilege in this context, and denied the applicant access to the report. The court mandated that all parties provide relevant material to the Tribunal and other parties by specific dates, to facilitate the decision-making process.
Orders
Orders of the court
1 All parties to give to the Tribunal and all other parties and the separate representative for the person (if any), the material they rely upon by 31 January 2018.
2 All parties to give to the Tribunal and all other parties and the separate representative for the person (if any), the material in reply by 7 February 2018.
3 The Tribunal denies Mr DAC access to the Medicolegal Report of Dr Z dated 23 August 2017 and obtained under summons.