NZC

[2017] NSWCATGD 38

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

NZC [2017] NSWCATGD 38

Hearing dates:

13 December 2017

Date of orders:

13 December 2017

Decision date:

13 December 2017

Jurisdiction:

Guardianship Division

Before:

R H Booby, Senior Member (Legal)

Decision:

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

Legislation Cited:

Administrative Appeals Tribunal Act 1975 (Cth), ss 37(2)-(3)
Adoption Act 2000 (NSW), s 126
Civil and Administrative Tribunal Act 2013 (NSW), cl 6 of Sch 6, cl 9 of Sch 6, cl 11 of Sch 6, ss 38, 38(2), 45, 46(1)(b), 49, 54, 60, 62, 67, 73
Evidence Act 1995 (NSW), div 1 pt 3.10, div 1A pt 3.10, ss 9, 10, 117-119, 126A, 126(A)1, 126B
Guardianship Act 1987 (NSW), ss 4, 6L, 15(1)(b)-(c), 22, 23, 25K, 25L, 29, 35, 38(2)
Powers of Attorney Act 2003 (NSW), s 33(2)
NSW Trustee and Guardian Act 2009 (NSW), ss 41, Protected Estates Act 1983 (NSW), s 13(2)
Young Persons (Care and Protection) Act 1998 (NSW)

Cases Cited:

Attorney-General (NT) v Maurice (1986) 161 CLR 475; [1986] HCA 80
AWB v Honourable Terence Rhoderic Hudson Cole [2006] FCA 571; (2006) 152 FCR 382
Boyes v Colins (2000) 23 WAR 123
Bushell v Repatriation Commission (1992) 175 CLR 408
CNC v NSW Police Force [2017] NSWCATAD 43
Comcare v Christina Foster [2006] FCA 6 (12 January 2006)
Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49; 168 ALR 123
Corporate Affairs Commission (NSW) v Yuill (1991) 172 CLR 319
Farnaby and Military Rehabilitation and Compensation Commission [2007] AATA 1792; (2007) 97 ALD 788
Grant v Downs (1976) 135 CLR 674
Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets (2006) 67 NSWLR 91
McDonald v Director General of Social Security (1984) 1 FCR 354
McGuirk v Director General, Attorney General’s Department [2007] NSWADTAP 138
R v P (2001) 53 NSWLR 664
Re Adoption of NG (No 1) [2014] NSWSC 627
SZHWY v Minister for Immigration and Citizenship [2007] FCAFC 64; 159 FCR 1
Trade Practices Commission v Sterling (1979) FLR 244
VCR and Ors and Australian Prudential Regulation Authority [2008] AATA 580 (4 July 2008)
Waterford v Commonwealth (1987) 163 CLR 54

Category:

Principal judgment

Parties:

001: Financial Management Application

 

Mrs NZC (the person)
Mr DAC (applicant)
Ms TBD (attorney)
The NSW Trustee and Guardian

 

002: Guardianship Application

  Mrs NZC (the person)
Mr DAC (applicant)
The NSW Public Guardian

Representation:

Legal representation:

  M Fraser (for Mrs NZC)

File Number(s):

2017/00234141

Publication restriction:

Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal’s proceedings (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).

REASONS FOR DECISION

Background

1. Mrs NZC is 85 years old. She lives aged care facility in the Upper North Shore of Sydney, NSW. She has three adult children who are Mr DAC, Mr NYC, and Ms TBD.

2. On 24 January 2013, Mrs NZC appointed her son, Mr DAC, as her enduring guardian and as her attorney under an enduring power of attorney. Mr DAC accepted the appointments on 24 January 2013.

3. On 7 June 2017, Mrs NZC appointed Ms TBD as her enduring guardian.

4. On 9 June 2017, Mrs NZC revoked the appointment of Mr DAC as her attorney and as her enduring guardian and appointed Ms TBD as her attorney under an enduring power of attorney. Ms TBD accepted the appointment on 15 June 2017.

5. The enduring guardianship appointment made on 7 June 2017 and the enduring power of attorney made on 9 June 2017 were witnessed by Joan Napoli, a solicitor, at Upper North Shore Sydney.

6. The notice of the revocation of the appointments of Mr DAC as Mrs NZC’s enduring guardian and attorney were served on Mr DAC by way of enclosures to a letter addressed to him dated 13 June 2017 sent from the office of the solicitors in Upper North Shore Sydney acting for Mrs NZC.

7. On 1 August 2017, the Tribunal received applications from Mr DAC seeking the appointment of a guardian and the making of a financial management order and appointment of a financial manager for Mrs NZC.

8. Mr DAC indicates on the applications that he had sent a copy of the applications and documents to all other parties, including Mrs NZC.

9. At an interlocutory hearing on 11 October 2017, the Tribunal made orders that included the following:

1. Consent to legal representation of Mrs NZC by Michele Fraser, of counsel;

2. Refusal of requests from Mr DAC to issue summonses to a public hospital (Specialist Psychiatric Unit), Dr Z, Dr Y, the aged care facility, and Ms TBD.

10. At the hearing on 11 October 2017, Ms Joan Napoli withdrew an application seeking to represent Mrs NZC at the hearings of the application on the basis that she may be required to provide evidence to the Tribunal regarding the making of the enduring guardianship and power of attorney appointing Ms TBD, and the revocation of the appointments of Mr DAC. However, she attended the hearings as Mrs NZC’s solicitor and has corresponded with the Tribunal on behalf of Mrs NZC.

11. Mr DAC was not represented at the hearings and had no leave to be represented. The Tribunal has received correspondence from Mr DAC indicating that he is a practising barrister. During interlocutory hearings conducted on 11 October 2017 and 9 November 2017, he was accompanied by Mr William Musgrave, a solicitor. Mr Musgrave has corresponded with the Tribunal on behalf of Mr DAC in respect of the matter, whilst not representing him in the hearings.

12. On 26 October 2017, at the request of Mr DAC, the Acting Registrar, Guardianship Division, NSW Civil and Administrative Tribunal, issued a summons to Dr Z of North Sydney, requiring that he produce the following documents:

The results of the assessment of the cognitive ability or impairment of [Mrs NZC] born on [xx] 1932 at Sydney, and the medical report prepared in respect of that assessment for [Mrs NZC], or [Office of the Solicitors for Mrs NZC] on her behalf, in August and/or September 2017.

13. On 9 November 2017, in response to the summons the Tribunal received a letter from Dr Z.

14. The letter from Dr Z states, in part:

Please find attached my assessment of the cognitive status of [Mrs NZC] (DOB [xx]/1932). This assessment is included in the enclosed medical report with respect to that assessment.

15. The report enclosed in the letter is dated 23 August 2017, and is headed “Medicolegal Report” (the Report).

16. At an interlocutory hearing conducted on 9 November 2017, Ms Fraser, on behalf of Mrs NZC, claimed that access to the Report should be denied to Mr DAC on the basis of legal professional privilege.

17. Following discussion at the hearing:

1. the Tribunal invited the parties to make written submissions on the issue of whether access to the Report should be denied on the basis of privilege;

2. the parties agreed to proceed on the basis that I should have access to the Report to inform myself of its contents, on the understanding that if I denied Mr DAC access to the Report, then I would recuse myself from hearing the substantive matters.

18. At an interlocutory hearing conducted on 13 December 2017, I made an order denying Mr DAC access to the Report on the basis of litigation privilege. Having read the document to which access was denied to Mr DAC, I recused myself from hearing the substantive matters.

19. In a letter received by the Tribunal on 15 December 2017, Mr William Musgrave, solicitor, on behalf of Mr DAC, requested reasons for the decision of the Tribunal on 13 November 2017 to deny Mr DAC access to the Report. The letter from Mr Musgrave contains a corrected date from 14 November 2017 to 14 December 2017, corrected by handwritten notation.

20. In an email to the Tribunal sent at 4:42pm on 14 December 2017, Mr DAC refers to a letter “filed today filing an application for the issue a summons…” and states:

the letter contains a typo. The reference in par 2 to “Decision dated 13 November 2017” should of course be read “Decision dated 13 December 2017. It is yesterday’s decision that I seek reasons for….

21. It would seem that the letter referred to by Mr DAC in his email is likely to be the letter from Mr Musgrave received by the Tribunal on 15 December 2017, and I have proceeded on that basis.

22. These Reasons are in response to the request, as amended, received from Mr Musgrave seeking the reasons for the decision made on 13 December 2017 to refuse Mr DAC access to the Report.

The Report

23. The material submitted by Dr Z in answer to the summons comprises:

1. A letter dated 7 November 2017 that refers to an enclosed document and states that enclosed is:

My assessment of the cognitive status of [Mrs NZC] (DOB [xx]/1932). This assessment is included in the enclosed medical report with respect to that assessment.

2. A Tax Invoice dated 5 October 2017 directed to the Office of the Solicitors for Mrs NZC for the “provision of a Medicolegal Report”.

3. A “Work Narrative” which, in addition to other matters, mentions the following items:

21/8/2017:

Review letter of instruction from J Napoli

Email to J Napoli in response

Review of what background information had yet to be provided in order for me to complete the Capacity Assessment and requested this information”

…

22/8/17 Assessment of [Mrs NZC]

…

22/8/17

Review of documents sent to me by J Napoli [88 pages]

Review of my assessment findings and scoring of ACE III

23/8/17 … discussed my preliminary thoughts regarding the Capacity Assessment with J Napoli and asked J Napoli if she wished me to proceed with the report”.

23/8/17 Research on “Threshold Issues” related to Capacity to appoint EPOA

24. It is not necessary or appropriate to provide full details of the Report in these Reasons. For the purpose of characterising the Report I consider that the following details are relevant:

1. The Report is dated 23 August 2017;

2. The Report is headed “Medicolegal Report”;

3. The Report is addressed to Ms Joan Napoli, Office of the Solicitors for Mrs NZC in Upper North Shore Sydney;

4. The Report begins:

Thank you for your letter of instruction dated [xx]/17. You asked me to provide an assessment of Mrs NZC’s mental capacity with respect to the following: …[thereafter is a series of questions concerning the capacity of [Mrs NZC] in respect to issues raised by the applications].

The Report addresses these questions.

5. In the Report Dr Z confirms that he has read and agrees to abide by, the NCAT Procedural Direction 3, Expert Witnesses dated 7/02/14.

25. In the Report, Dr Z refers to items on which the Report is based. Those items include:

1. A formal cognitive assessment of Mrs NZC;

2. The applications filed by Mr DAC and information provided by Ms Napoli that relates to the applications.

26. The Report does not include any discrete “cognitive assessment” instrument as administered, though it incorporates reference to the administration of the Addenbrooke’s Cognitive Assessment III (ACE III) and Mrs NZC’s responses when that test was administered and her scores on that assessment.

27. References to the Report and to Dr Z made in the hearings and documents considered at the hearings include:

1. In an email to the Tribunal dated 3 August 2017, Ms Napoli informed the Tribunal of an intention to call Dr Z as an expert witness in the proceedings.

2. In a letter dated 23 August 2017 to Mr W Musgrave, the Office of the Solicitors for Mrs NZC state:

1. they were instructed that: “your client forwarded documentation…to [Dr Z] for the purposes of [Mrs NZC]’s medical assessment [in] August”; and

2. “if there are any documents that your client considers relevant please forward a copy to us, otherwise we will instruct [Dr Z] not to review the documents provided to him”

3. An email dated 11 September 2017 sent from a paralegal of the Office of the Solicitors for Mrs NZC, on behalf of Joan Napoli, to [Email address removed for publication.] advises that “we are awaiting a medical report from [Dr Z] that will be filed in these proceedings”.

4. At the hearing conducted on 11 October 2017, Ms Fraser advised that it was no longer intended to tender the report of Dr Z.

5. In a letter dated 12 October 2017, Mr William Musgrave indicates that Mr DAC had approached Dr Z to ascertain the preparedness of his colleagues to act as joint experts in the matters before the Tribunal. Mr Musgrave states:

[Mr DAC] was informed that [Dr Z] has undertaken a cognitive assessment of [Mrs NZC] on [xx] August 2017, has issued a medical report for use as her expert in the Tribunal and that the report is addressed to Ms Napoli, as it was prepared on instructions from her for use as her expert witness in the Tribunal

Submissions

28. In substance, the written submissions by Mr DAC handed up at the hearing on 9 November 2017 in support of him being given access to the Report were as follows:

1. Mrs NZC opposes access to “the cognitive assessment report of her treating psychiatrist, [Dr Z], following his assessment of Mrs NZC on 22 August 2017”. The cognitive assessment was undertaken to support an expert medical report by Dr Z.

2. The Tribunal is not bound by the rules of evidence (s 38(2), Civil and Administrative Tribunal Act 2013 (NSW)) and therefore ss 118 and 119 of the Evidence Act 1995 (NSW) have no application.

3. Even if the Evidence Act did apply, a report by a treating medical practitioner cannot qualify as privileged unless it is a protected confidence (s 126A, Evidence Act).

4. Dr Z undertook the cognitive assessment of Mrs NZC as her treating medical practitioner so that the assessment report he produced is in all probability a protected confidence within the meaning of the s 126(A)1 of the Evidence Act.

5. However, there is no power to prevent the report being accessed or tendered in evidence unless the Tribunal concludes that harm would be caused to Mrs NZC by it being accessed or tendered. This is not possible because the Report is the best objective evidence of Mrs NZC’s cognitive ability (Dr Z is Mrs NZC’s treating psychiatrist) and s 4 of the Guardianship Act 1987 (NSW) obliges the Tribunal to give paramount consideration to her welfare and interests.

29. In substance, the written submissions dated 14 November 2017 made on behalf of Mrs NZC in opposition to Mr DAC being provided with access to the Report were as follows:

1. The privilege provisions of the Evidence Act do not apply because the Tribunal is not bound by the rules of evidence.

2. Legal professional privilege is a substantive general principle of common law (Attorney General v Maurice (1986) 161 CLR 475; [1986] HCA 80 at [490] per Deane J.).

3. There is no discretion to exclude legal professional privilege. (Grant v Downs (1976) 135 CLR 674 at [685])

4. The relevant test is the dominant purpose test Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49; 168 ALR 123 (Esso).

5. Legal professional privilege extends to confidential statements and other materials that have been brought into existence for the purpose of preparing for existing or contemplated judicial or quasijudicial proceedings (Attorney General v Maurice (1986) 161 CLR 475; [1986] HCA 80 at [490].

6. Privileged material includes communications and documents passing between the party’s solicitor and a third party if they are made and prepared when litigation is anticipated or commenced, for the purpose of litigation, with a view to obtaining advice as to it or evidence to be used in it (McGuirk v Director General, Attorney General’s Department [2007] NSWADTAP 138 at [13] citing Trade Practices Commission v Sterling (1979) FLR 244 at [245]-[246] per Lockhart J).

7. The Report was brought into existence for the purpose of the current litigation.

8. Dr Z is not Mrs NZC’s treating doctor. Even if this were the case the Report would still be excluded because it was brought into existence for the purpose of the proceedings. It attracts legal professional privilege on that basis.

9. The privilege attaching to the Report cannot be avoided by attempting to characterise it as real evidence (Boyes v Colins (2000) 23 WAR 123 at [36]-[37].

10. In R v P (2001) 53 NSWLR 664 applied in ReAdoption of NG (No 1) [2014] NSWSC 627, (re Adoption), establishes that legal professional privilege will only be displaced by statute if the statute manifests a clear intention to do so.

11. In re Adoption, Brereton J held that neither the nature of the proceedings, the paramountcy principles or s 126 of the Adoption Act 2000 (NSW) impinged on legal professional privilege attaching to communications between a lawyer or litigant and a potential witness, including an expert witness.

12. There has been no waiver of legal professional privilege

13. The issues for determination by the Tribunal are:

1. Do the documents produced by Dr Z attract legal professional privilege?

2. Has privilege been waived by Mrs NZC?

14. Mrs NZC asserts that the first of these questions should be answered “yes’ and the second, “no”.

30. In substance, submissions in reply by Mr DAC (dated 22 November 2017) are as follows:

1. The relevant authority in respect of legal professional privilege is the matter of Esso and the matter of Grant v Downs (1976) 135 CLR 674 should not be relied on as it no longer represents the law.

2. The relevant test as set down in Esso is the dominant purpose test that requires an assessment of the dominant purpose for which the documents were brought into existence.

3. Esso represents a “total restatement of the common law doctrine of legal professional privilege in Australia” which is different from the view espoused by Dean J in Attorney-General (NT) v Maurice (1986) 161 CLR 475; [1986] HCA 80 at [490].

4. The rationale for legal professional privilege is “to serve the public interests in the administration of justice by encouraging full and frank disclosure by clients to their lawyers” (Esso at [35]).

the doctrine of legal professional privilege does not exist to protect from disclosure the clinical notes and cognitive assessment report of a treating psycho-geriatrician.

5. The Evidence Act provides for a discrete category of medical evidence (ss 126A and 126B of the Evidence Act), which would not be necessary if medical evidence is somehow to be equated with lawyer-client or witness-lawyer communications for privilege.

6. If the Tribunal does not accept that Esso establishes that the dominant purpose test limits the privilege to communications between clients (or their witnesses) and their lawyers then in the alternative:

1. In respect of the assertion on behalf of Mrs NZC that the documents were brought into existence for the purposes of the present litigation, there is “not a single jot of evidence from [Dr Z]…stating why he brought these documents into existence. As a treating psycho-geriatrician, the presumption must be that the documents were brought into existence for the dominant purpose of treating [Mrs NZC]”.

2. Mrs NZC bears the onus of proof that the documents were brought into existence for the dominant purpose of conducting this proceeding. That evidence on that matter must come from Dr Z. No evidence on that issue has been given by Dr Z and the decision not to call evidence about Dr Z’s dominant purpose is fatal to the claim of privilege.

7. Submissions made on behalf of Mrs NZC regarding whether privilege is overruled are irrelevant because they focus on the wrong question.

8. The correct questions to be asked by the Tribunal are:

1. Has Mrs NZC established that the medical records are susceptible to legal professional privilege under the dominant purpose test enunciated in Esso?

2. If the above question is answered in the affirmative, has Mrs NZC established that the requisite dominant purpose exists?

9. The answer to the first question is “no” and the answer to the second question is “it does not arise”. If the first question is answered in the affirmative then the answer to the second question is “no” for the reasons set out in the submissions made above said to be submitted “in the alternative”.

Discussion of the issues

Legislation regarding evidence

31. Section 38 of the Civil and Administrative Tribunal Act provides that:

38 Procedure of Tribunal generally

(1)   The Tribunal may determine its own procedure in relation to any matter for which this Act or the procedural rules do not otherwise make provision.

(2)    The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.

(3)    Despite subsection (2):

(a)    the Tribunal must observe the rules of evidence in:

(i)    proceedings in exercise of its enforcement jurisdiction, and

(ii)    proceedings for the imposition by the Tribunal of a civil penalty in exercise of its general jurisdiction, and

(b) section 128 (Privilege in respect of self-incrimination in other proceedings) of the Evidence Act 1995 is taken to apply to evidence given in proceedings in the Tribunal even when the Tribunal is not required to apply the rules of evidence in those proceedings.

…

32. Section 67 of the of the Civil and Administrative Tribunal Act provides that:

67 Privileged documents

(1)    Nothing in this Act requires the disclosure of a document if the Tribunal or President is satisfied that evidence of the document could not be adduced in proceedings before a NSW court by reason of the operation of any of the following provisions of the Evidence Act 1995:

(a) section 9 (Application of common law and equity), but only to the extent that it preserves any privilege against the adducing of evidence,

(b) section 10 (Parliamentary privilege preserved),

(c) Part 3.10 (Privileges) of Chapter 3.

(2)    In this section:

disclosure of a document includes the following:

(a)    the provision of copies of the document,

(b)    the granting of access to the document,

(c)    the disclosure of the contents of the document.

document includes a part of a document.

NSW court has the same meaning as in the Evidence Act 1995.

33. For the purposes of this matter, ss 9 and 10 of the Evidence Act are not relevant.

34. Part 3.10 of the Evidence Act includes the following provisions in Division 1 – Client Legal Privilege.

117 Definitions

…

confidential communication means a communication made in such circumstances that, when it was made:

(a)    the person who made it, or

(b)    the person to whom it was made,

was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law.

confidential document means a document prepared in such circumstances that, when it was prepared:

(a) the person who prepared it, or

(b) the person for whom it was prepared,

was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law.

…

118 Legal advice

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

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

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

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

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

119 Litigation

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

(a)    a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made, or

(b)    the contents of a confidential document (whether delivered or not) that was prepared,

for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party.

…

35. Part 3.10 of the Evidence Act includes the following provisions in Division 1A: Professional Confidential Relationship Privilege:

126B Exclusion of evidence of protected confidences

(1)    The court may direct that evidence not be adduced in a proceeding if the court finds that adducing it would disclose:

(a)    a protected confidence, or

(b)    the contents of a document recording a protected confidence, or

(c)    protected identity information.

(2)    The court may give such a direction:

(a)    on its own initiative, or

(b)    on the application of the protected confider or confidant concerned (whether or not either is a party).

(3)    The court must give such a direction if it is satisfied that:

(a)    it is likely that harm would or might be caused (whether directly or indirectly) to a protected confider if the evidence is adduced, and

(b)    the nature and extent of the harm outweighs the desirability of the evidence being given.

(4)    Without limiting the matters that the court may take into account for the purposes of this section, it is to take into account the following matters:

(a)    the probative value of the evidence in the proceeding,

(b)    the importance of the evidence in the proceeding,

(c)    the nature and gravity of the relevant offence, cause of action or defence and the nature of the subject matter of the proceeding,

(d)    the availability of any other evidence concerning the matters to which the protected confidence or protected identity information relates,

(e)    the likely effect of adducing evidence of the protected confidence or protected identity information, including the likelihood of harm, and the nature and extent of harm that would be caused to the protected confider,

(f)    the means (including any ancillary orders that may be made under section 126E) available to the court to limit the harm or extent of the harm that is likely to be caused if evidence of the protected confidence or the protected identity information is disclosed,

(g)    if the proceeding is a criminal proceeding—whether the party seeking to adduce evidence of the protected confidence or protected identity information is a defendant or the prosecutor,

(h)    whether the substance of the protected confidence or the protected identity information has already been disclosed by the protected confider or any other person,

(i)    the public interest in preserving the confidentiality of protected confidences,

(j)    the public interest in preserving the confidentiality of protected identity information.

…

The nature of the report

36. In his submissions, Mr DAC appears to distinguish between a “cognitive assessment report” compiled by Dr Z and a “cognitive assessment” of Mrs NZC. He submits that the “cognitive assessment” was undertaken to “support an expert medical report”.

37. The “Work Narrative” notes that an assessment of Mrs NZC was undertaken on 22 August 2017 on which date Dr Z also reviewed his “assessment findings and scoring of ACE III”.

38. There is no discrete “cognitive assessment” included in the material provided in response to the summons. Dr Z indicates in the letter to the Tribunal dated 7 November 2017 that the “assessment is “included in the medical report with respect to that assessment”. Reference to the use of an assessment instrument, the ACE III is made in the document headed “Medicolegal Report”

39. On this basis I am satisfied that the results of an assessment are included in the “medicolegal report” and there was no separate “assessment” provided in response to the summons.

40. Mr DAC submits that Dr Z undertook the cognitive assessment of Mrs NZC as her treating doctor. Ms Fraser, on behalf of Mrs NZC, denied that this is the case. At the hearing conducted on 9 November 2017, Ms Fraser stated on behalf of Mrs NZC, that Dr Z last treated Mrs NZC approximately five years ago.

41. No date is given for the administration of the ACE III, though the assessment of Mrs NZC and the review of the results of the assessment and the scoring of the ACE III are noted to have been on 22 August 2017.

42. There is no mention in the Report of previous assessments by Dr Z of Mrs NZC or of previous or current treatment notes or his opinions formed during previous or current treatment of Mrs NZC.

43. Taking these matters into account, I am not satisfied that Dr Z conducted an assessment of Mrs NZC as her treating doctor, or incorporated that assessment in the Report as her treating doctor.

44. I therefore reject the submission to the effect that in undertaking the cognitive assessment, or providing the medicolegal report, Dr Z did so as Mrs NZC’s treating doctor.

Legal Professional Privilege

The Evidence Act

45. Sections 117, 118 and 119 of the Evidence Act establish that legal professional privilege attaches to:

1. the contents of a confidential document prepared for the dominant purpose of a lawyer providing legal advice to a client; and

2. the contents of a confidential document prepared for the dominant purpose of a client being provided with professional legal services relating to a proceeding, or an anticipated proceeding, in which the client is a party.

46. In this matter no party has questioned that the Report is other than a confidential document. In his submissions, Mr DAC submitted the document was one that could come under div 1A of pt 3.10 of the Evidence Act as a confidential document of a certain type.

47. Having regard to the circumstances and the material before me I am satisfied that the Report is a “confidential document” within the meaning of that term as defined in s 117 of the Evidence Act.

The common law

48. The High Court considered legal professional privilege in Grant v Downs (1976) 135 CLR 674; [1976] HCA 63. In that decision, the majority found that legal professional privilege applied to:

those documents which are brought into existence for the sole purpose of submission to legal advisers for advice or for use in legal proceedings (at [27])

and that:

As a head of privilege legal professional privilege is so firmly entrenched in the law that it is not to be exorcised by judicial discretion.

49. Barwick CJ, was in a minority in Grant v Downs (supra) in respect of to the “sole purpose” test. He proposed that the test was a “dominant purpose test” and described legal professional privilege as applying in respect of:

a document which was produced or brought into existence either with the dominant purpose of its author, or of the person or authority under whose direction, whether particular or general, it was produced or brought into existence, of using it or its contents in order to obtain legal advice or to conduct or aid in the conduct of litigation (at 677)

50. In Attorney-General (NT) v Maurice (1986) 161 CLR 475; [1986] HCA 80 (AG for Northern Territory), citing Grant v Downs (supra), Gibbs CJ described documents that attract legal professional privilege as ones that:

had been brought into existence for the sole purpose of being submitted to legal advisers for advice or use in legal proceedings [4].

51. In that matter, Deane J said:

It is a substantive general principle of the common law and not a mere rule of evidence that, subject to defined qualifications and exceptions, a person is entitled to preserve the confidentiality of confidential statements and other materials which have been made or brought into existence for the sole purpose of his or her seeking or being furnished with legal advice by a practising lawyer or for the sole purpose of preparing for existing or contemplated judicial or quasi-judicial proceedings [1].

52. Legal professional privilege was further considered by the High Court in Esso (supra). In their majority judgement, Gleeson CJ, Gaudron and Gummow JJ said (at [35]):

Legal professional privilege (or client legal privilege) protects the confidentiality of certain communications made in connection with giving or obtaining legal advice or the provision of legal services, including representation in proceedings in a court. In the ordinary course of events, citizens engage in many confidential communications, including communications with professional advisers, which are not protected from compulsory disclosure. The rationale of the privilege has been explained in a number of cases, including Baker v Campbell… and Grant v Downs itself. The privilege exists to serve the public interest in the administration of justice by encouraging full and frank disclosure by clients to their lawyers. In Waterford v The Commonwealth…Mason and Wilson JJ explained that legal professional privilege is itself the product of a balancing exercise between competing public interests and that, given the application of the privilege, no further balancing exercise is required. As Deane J expressed it in Baker v Campbell…a person should be entitled to seek and obtain legal advice in the conduct of his or her affairs, and legal assistance in and for the purposes of the conduct of actual or anticipated litigation, without the apprehension of being prejudiced by subsequent disclosure of the communication. The obvious tension between this policy and the desirability, in the interests of justice, of obtaining the fullest possible access to the facts relevant to the issues in a case lies at the heart of the problem of the scope of the privilege. Where the privilege applies, it inhibits or prevents access to potentially relevant information. The party denied access might be an opposing litigant, a prosecutor, an accused in a criminal trial, or an investigating authority. For the law, in the interests of the administration of justice, to deny access to relevant information, involves a balancing of competing considerations. This Court is now asked to reconsider the balance that was struck in Grant v Downs.

Does Legal Professional Privilege apply to Tribunal Proceedings?

53. This issue was considered in Waterford v Commonwealth (1987) 163 CLR 54 (Waterford) which involved an application to the Administrative Appeals Tribunal (AAT) by the appellant for review of a decision of a Secretary of a Department to refuse access to documents which were produced in contemplation of a matter in the AAT. The documents related to communication between the Attorney General and Treasury and the Departmental officers and the Deputy Crown Solicitor in the ACT. At first instance the AAT found that the documents were protected by legal professional privilege and an appeal to the Federal Court was dismissed. The High Court dismissed a further appeal. In that decision:

1. Mason and Wilson JJ noted that:

The central question at issue in this appeal is whether it is open to the Commonwealth to claim legal professional privilege in the circumstances of this case, that is to say in respect of documents the subject-matter of which is legal advice obtained from within the Government and concerned with proceedings pending in the Tribunal [3]; and

This brings us to the principal submission advanced for the appellant. It proceeds on the basis that legal professional privilege may extend to some communications between government decision makers and their legal advisers. But it draws the line where the subject-matter of the communication relates either to (a) the manner in which a person should exercise a power of an administrative nature conferred upon him by law, or (b) proceedings pending in the Tribunal following upon that exercise of power. [5]

…The common law, in the view that we have taken, recognizes that legal professional privilege attaches to confidential, professional communications between government agencies and their salaried legal officers undertaken for the sole purpose of seeking or giving legal advice or in connexion with anticipated or pending litigation. [6]

…

…

But the point of overriding importance to the appellant's argument focuses on the second category of documents to which the privilege attaches, that is to say, professional communications between a client and his legal adviser in connexion with legal proceedings. It was to this category of documents that much of the appellant's request for access related. If a communication satisfies the description of a document brought into existence for the sole purpose of enabling a confidential professional communication between a client and his legal adviser in connexion with pending or anticipated legal proceedings then in our opinion it follows that it is an exempt document within the meaning of s.42 of the Act. [11]

2. Dawson J was in the minority in Waterford, having decided that he would allow the appeal. However in a statement not questioned by the majority, he said:

The concept of litigation for the purpose of the doctrine of legal professional privilege is, I think, wide enough to embrace the proceedings before the Tribunal which were conducted along adversarial lines and contemplated legal representation [21]

54. In the matter of Corporate Affairs Commission (NSW) v Yuill (1991) 172 CLR 319), Brennan J and McHugh J describe legal professional privilege as applying “in judicial and quasi-judicial proceedings”.

55. In the matter of AWB v Honourable Terence Rhoderic Hudson Cole [2006] FCA 571; (2006) 152 FCR 382, (AWB) Young J declined to apply litigation privilege to documents prepared in contemplation of a Royal Commission. His Honour’s discussion of the issue includes the following comments:

[144] A traditional formulation of the second limb of legal professional privilege is that it applies to confidential communications passing between a client, the client’s legal adviser and third parties for the dominant purpose of use in or in relation to litigation which is either pending or in contemplation: see FCT v Pratt Holdings at 284 [39] per Kenny J. This formulation was referred to, with apparent approval, by Finn J in the Full Court in Pratt Holdings at 360 [6]: see also Grant v Downs at 677 per Barwick CJ.

[145] The crucial difference between the first and second limbs of the privilege is that the second limb is not limited to communications whose dominant purpose is the giving or obtaining of legal advice. Communications lacking this advice element, such as communications between a solicitor and a prospective expert witness, will attract privilege where they occur in a litigation context: see JD Heydon, Cross on Evidence, vol 1, Butterworths, 1996, par 25235; SB McNicol, Law of Privilege, Law Book Company, 1992, at p 48; and SL Phipson, Law of Evidence, 16th edn, Sweet & Maxwell, 2005, at pars 23-81 and 23-82.

…

[147] …In Re L, the House of Lords declined to extend litigation privilege to proceedings under Part IV of the Children Act 1989 which were investigative and non-adversarial in nature and in which the Court was required to regard the welfare of the child as the primary consideration. Lord Jauncey of Tuillichettle held that litigation privilege is essentially a creature of adversarial proceedings and it was not appropriate to extend that privilege to care proceedings which are essentially non-adversarial: at 26 [H]. Lord Lloyd of Berwick and Lord Steyn agreed. Lord Nicholls of Birkenhead delivered a dissenting speech with which Lord Mustill agreed.

[148] Lord Nicholls considered that the issue could not be resolved by applying the labels inquisitorial or adversarial to different types of proceedings: at 31 [F]. Proceedings may possess some adversarial features and some inquisitorial features. Moreover, Lord Nicholls thought that these terms divert attention from the crucial question, which is whether the proceedings are of a character which cannot be conducted fairly in the absence of litigation privilege.

[149] Lord Nicholls considered that litigation privilege should apply to family proceedings for the following reasons:

‘Family proceedings are court proceedings. The court has to make decisions affecting, often profoundly, the whole future of a child and his or her family. Whenever necessary, the court makes findings on disputes of fact. It goes without saying that the parties to such proceedings are entitled to have a fair hearing. Whatever fairness does or does not require in other contexts, in this context a fair hearing includes at least the right to present one’s case and to call evidence.

Under English law an established ingredient of this right is legal professional privilege. Parties preparing for a court hearing may obtain legal advice in confidence. A party cannot be required to disclose communications between himself and his lawyer, or communications between the lawyer and third parties which come into existence for the purpose of obtaining legal advice in connection with the proceedings. A proof of evidence obtained from a potential witness of fact is not disclosable. Nor is a report obtained from a potential witness of expert opinion. A party may be required to produce a witness statement or expert’s report in advance as a precondition to the admission of that evidence at the hearing, but he is not required to disclose proofs of witnesses whose evidence he does not intend to adduce at the hearing. The public interest in a party being able to obtain informed legal advice in confidence prevails over the public interest in all relevant material being available to courts when deciding cases.

I can see no reason why parties to family proceedings should not be as much entitled to a fair hearing having these features and safeguards as are parties to other court proceedings.’

…

[158] Legal professional privilege must be applied in a manner which is consistent with the policy reasons that justify its existence: see Pratt Holdings at 362 [18] and 367-368 [41]-[42] per Finn J, and 386 [105] per Stone J; and Three Rivers at 650 [35]. But this does not mean that the origins, and the distinctive scope and operation of the second limb of the privilege, are to be ignored. In my view, the authorities establish that the reason why litigation privilege has been recognised as a substantive rule of law and as a fundamental right, is that it operates to secure a fair civil or criminal trial within our adversarial system of justice. The rationale for litigation privilege does not support its extension to a commission of inquiry.

…

[160] AWB also relied upon the statement by Dawson J in Waterford at 101 that:

‘The concept of litigation for the purpose of the doctrine of legal professional privilege is, I think, wide enough to embrace the proceedings before the Tribunal which were conducted upon adversary lines and contemplated legal representation. Communications for the purpose of giving and receiving legal advice in relation to those proceedings fell, in my view, within the privilege.’

56. In declining to apply litigation privilege in respect of the Royal Commission, His Honour said:

[161] In my opinion, it is one thing to extend litigation privilege to adversarial proceedings before the Administrative Appeals Tribunal. The Administrative Appeals Tribunal is vested with statutory authority to determine issues with legally binding consequences. A Royal Commission is not in that position. A Commissioner simply carries out investigations, determines the facts and prepares a report and recommendations. A Commission does not finally determine any rights or obligations.

57. In the matter of Comcare v Christina Foster [2006] FCA 6 (12 January 2006), the Federal Court considered whether litigation privilege applied to documents prepared in contemplation of proceedings at the AAT. Greenwood J allowed an appeal against a decision of the AAT that documents were not exempt on the basis of legal professional privilege and said:

The question to be determined…whether, although routine, the material was brought into existence as part of, or evidence of, or components of, confidential communications between Comcare and its lawyers for the dominant purpose of Phillips Fox giving and Comcare obtaining legal advice or the provision and acquisition of legal services including representation in the proceedings.

58. In the matter of Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets (2006) 67 NSWLR 91 (Ingot), Bergin J referred to AWB and expressed the view that litigation privilege did not apply in the AAT because, in effect, that Tribunal was not exercising a judicial power. The Ingot matter was an application for review of a decision by the Australian Prudential Regulation Authority in which the respondents sought to exclude, on the basis of litigation privilege, documents provided by a third party to the lawyers for the respondents. The respondents submitted that litigation privilege applied and placed emphasis on the decision of Dawson J in Waterford.

59. At [36] in Ingot, Her Honour refers to submissions made by the respondents about the decision in Waterford:

36 The respondents submitted that the question of whether the application before the AAT was a “legal proceeding” for the purposes of the FOI Act was accepted by Mason and Wilson JJ in their finding (at 67) that communications in relation to an application before the AAT would be privileged if there was “connection between the document and the legal proceedings”. The respondents also submitted that Mason, Wilson, Brennan and Deane JJ did not query the status of the AAT proceeding as “legal proceedings” notwithstanding that the issue was clearly raised by Dawson J.

The published judgement in Ingot suggests that the respondent’s submission was not accepted.

60. In Ingot, Bergin J:

1. Drew a distinction between advice privilege and litigation privilege and expressed the view that whilst the application in Ingot was in respect of litigation privilege, the application in Waterford pertained to advice privilege. On that basis she characterised the opinion of Dawson J expressed in Waterford as obiter in respect of litigation privilege.

2. Noted that the AAT proceedings contemplated legal representation, but was of the view that whilst a relevant matter to be considered, this alone was insufficient to attract litigation privilege (at [39]).

3. Accepted that the AAT had authority to determine issues that are legally binding on the parties but said that whilst that is a relevant matter to be taken into account, by itself it is not a sufficient basis for litigation privilege. There are a many other institutions with power to bind individuals that do not attract litigation privilege (at [40]).

4. Considered the matter of McDonald v Director General of Social Security (1984) 1 FCR 354 (McDonald) in which the court found that proceedings before the AAT were not adversarial in nature because:

1. The AAT was not bound by the rules of evidence;

2. The AAT could inform itself in any manner it considered appropriate, including directing the production of documents by notice; and

3. The administrative body that was subject to review by the AAT was required to appear and to assist the AAT.

5. Considered the matter of Bushell v Repatriation Commission (1992) 175 CLR 408 in which Brennan J expressed the view that while proceedings before the AAT might appear adversarial they were inquisitorial and the onus of proof had no part to play in those proceedings.

6. Referred to the following additional matters:

1. The fact that the AAT stands ‘in the shoes of the decision maker’; and

2. The AAT could itself call evidence.

61. The Comcare matter is not referred to in the Ingot decision.

62. In SZHWY v Minister for Immigration and Citizenship [2007] FCAFC 64; 159 FCR 1 (9 May 2007) (SZHWY), the majority of the full court of the Federal Court, allowed an appeal based in part on a submission that the Refugee Review Tribunal had erred in asking questions, the answer to which required the applicant to provide information protected by legal professional privilege. In that decision:

1. Lander J said:

[30] The Tribunal has a similar function to that of a Court. It must decide questions of fact and then determine whether as a matter of fact the applicant is a refugee under s 36 of the Act. In doing so it must, like a Court, proceed impartially and accord the applicant procedural fairness: Re Minister for Immigration and Mr A and Another; Ex parte Epeabaka [2001] HCA 23; (2001) 206 CLR 128; Re Refugee Tribunal; Ex parte Aala. It has, in the discharge of is functions an obligation to act fairly and impartially. Even though its obligations to accord a party natural justice are governed by Division 4 of the Act, the Tribunal in observing those requirements must still act fairly. However, that does not mean that the Tribunal can be categorised as a quasi judicial body which is concerned with quasi judicial proceedings. It remains what it is, an administrative body with the power to exercise all of the powers of the decision maker whose decision is under appeal. It cannot therefore be said, because of the nature and character of the Tribunal, a party or witness before the Tribunal necessarily has the privileges against self[-]incrimination and legal professional privilege.

…

[3]7 Brennan J said in Corporate Affairs Commission (NSW) v Yuill [1991] HCA 28; (1991) 172 CLR 319 at 322 that Baker v Campbell should be understood as declaring that legal professional privilege was a common law right which applied ‘not only in judicial and quasi judicial proceedings but whenever the exercise of a statutory power would trespass upon the confidentiality of the communications which the privilege protects’.

[38] It follows, therefore, unless the Act says otherwise, a party or witness appearing before the Tribunal could claim the benefit of legal professional privilege. The answer to the question must lie in the construction of the Act. That follows because, although legal professional privilege is a common law right and ‘an important common law immunity’ (Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543 at 553; Jacobsen v Rogers [1995] HCA 6; (1995) 182 CLR 572 at 589), it may be abolished or narrowed by statute: Maurice. But it would require the clearest of provisions in a statute before it were assumed that the right had been so affected: Goldberg v Ng at 94; Baker v Campbell at 90, 96-97, 104-105, 116 and 123; Sorby v The Commonwealth at 289-290, 310-311; Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427 at 436-437; Corporate Affairs Commission (NSW) v Yuill. It should not be ‘exorcised by judicial decision’: Grant v Downs [1976] HCA 63; (1976) 135 CLR 674 at 685.

2. Rares J, in agreement with Landers J, states:

[158] It is well established that proceedings in the tribunal are inquisitorial in their general nature (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 (2006) 231 ALR 592 at 601 [40] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ). But its power to inquire is constrained by the purpose of its function of review s.414 and the principle that it exercise that power in a reasonable way. Legal professional privilege is an important common law right which applies to proceedings in the tribunal, as s. 433A recognises. An impertinent inquiry by the tribunal seeking the disclosure of a communication to which legal professional privilege attaches is not authorised by the Act and is, thus, unlawful

63. In the matter of Farnaby and Military Rehabilitation and Compensation Commission [2007] AATA 1792 (Farnaby), the AAT found that the applicant was entitled to claim legal professional privilege. Farnaby involved an application for litigation privilege in respect of documents about Mr Farnaby provided by medical practitioners in response to letters from solicitors acting for Mr Farnaby. The correspondence with one doctor was produced to the Tribunal in answer to a summons procured by the respondent and the other was provided pursuant to a direction by the Tribunal. The Tribunal was satisfied that the documents were communications between a lawyer and a third party for the purposes of the proceedings at the Tribunal and characterised the issue before the Tribunal as whether or not the common law doctrine of litigation privilege applied to matters heard at the Tribunal. In deciding that litigation privilege applied the Tribunal considered the following matters:

1. The Tribunal had joint jurisdiction with the Federal Court of Australia in relation to some matters, such as challenging a taxation assessment. If litigation privilege did not apply in the AAT then the same matter heard in different jurisdictions would be treated differently in respect of litigation privilege. If an appeal were made to the Federal Court about a decision made at the Tribunal, documents that were protected by litigation privilege at the Federal Court would not have been protected at the Tribunal hearing.

2. The AAT only ever makes administrative decisions and never exercises judicial power. However other Tribunals, including the Victorian Civil and Administrative Tribunal, the State Administrative Tribunal of Western Australia and the (then) Consumer, Claims and Tenancy Tribunal (NSW) do exercise judicial power. It would be problematic if proceedings before those Tribunals with both an administrative and a judicial power attracted litigation privilege in the judicial role and not in the administrative role.

3. Rather than characterise proceedings as inquisitorial or adversarial, the appropriate course is to look at the nature of proceedings and to determine whether they have characteristics sufficiently analogous to court proceedings to compel a conclusion that privilege applies as it would in a court.

4. Proceedings before the AAT can be distinguished from proceedings such as the Royal Commission that was subject to the decision of Young J in AWB. Relevantly the AAT has a number of characteristics that are similar to those of courts. These include:

1. There are at least two parties to the proceedings;

2. The proceedings must be determined by a hearing unless the Tribunal and the parties agree otherwise;

3. Parties have a right to representation;

4. The Tribunal, whilst not bound by the rules of evidence, is required to act on evidence that it admits;

5. The Tribunal has the power to administer an oath or affirmation and to issue summonses;

6. The Tribunal must give reasons for its decisions.

5. In Yuill and SZHWY v Minister for Immigration and Citizenship [2007] FCAFC 64; 159 FCR 1, it was accepted that litigation privilege applies in judicial and quasi judicial proceedings.

6. In the current case the issue is about a claim for litigation privilege in respect of communications relating to proceedings in the Tribunal. By way of contrast, in Ingot the claim was made in the Supreme Court of NSW but arose out of proceedings in the Tribunal.

7. In the Tribunal’s view, the decisions of Mason and Wilson JJ and Dawson J in Waterford require a conclusion that litigation privilege applies in matters before the AAT.

64. In the matter of VCR and Ors and Australian Prudential Regulation Authority [2008] AATA 580 (4 July 2008), the AAT again considered whether legal professional privilege applied to matters before it, despite the decision of Bergin J in Ingot. In that decision, the Tribunal stated:

[201] The judgment of Bergin J in Ingot has placed us in somewhat of a dilemma. It is a judgment of a superior court regarding a provision of a State Act, the Evidence Act, which is in the same terms as the Evidence Act 1995 (Cth). We would normally consider ourselves bound by it even though her attention was not drawn to authorities such as Re Becker and Minister for Immigration and Ethnic Affairs [292] to the effect that:

“The legislature clearly intends that the Tribunal, though exercising administrative power, should be constituted upon the judicial model, separate from, and independent of, the Executive ... (see Pt II of the Act). Its function is to decide appeals, not to advise the Executive.”[293]

[202] Other than the adversarial qualities normally attributed to legal proceedings, her Honour’s attention was not drawn to two other hallmarks of the judicial model. The first is the requirement that their proceedings be conducted in public and in open view. This was a hallmark regarded by Gibbs CJ in Russell v Russell [294] as having:

“... the virtue that the proceedings of every court are fully exposed to public and professional scrutiny and criticism, without which abuses may flourish undetected. Further, the public administration of justice tends to maintain confidence in the integrity and independence of the courts. The fact that courts of law are held openly and not in secret is an essential aspect of their character. It distinguishes their activities from those of administrative officials, for ‘publicity is the authentic hallmark of judicial as distinct from administrative procedure’ (McPherson v McPherson [1936] AC 177 at p. 200). To require a court invariably to sit in closed court is to alter the nature of the court. ...” [295]

This is a hallmark imposed on the Tribunal by s 35 of the AAT Act and subject only to exceptions and qualifications that are consistent with those applied from time to time in judicial proceedings.

[203] The second hallmark to which Bergin J’s attention was not drawn was the requirement in s 43(2) of the AAT Act that the Tribunal give reasons. Reasons enable the parties and the public to scrutinise the outcome and the reasons for it to ensure, and be reassured, that the Tribunal has acted appropriately on the evidence and the law both as to process and to substantive rights. Reasons and the rationale for giving them are fundamental

concepts in judicial proceedings. This is clear from the judgment of McHugh JA in Soulemezis v Dudley (Holdings) Pty Ltd [296] when he said:

“ When the parties submit their dispute to a tribunal for adjudication, they do so on the assumption that the dispute will be decided in accordance with rules. They assume that the adjudicator will decide the dispute according to the rules or principles which govern their conduct and that he will ascertain, so far as he reasonably can, what are the facts of the dispute. To give effect to these assumptions a judicial decision must be a recent decision arrived at by finding the relevant facts and then applying the relevant rules or principles. A decision which is made arbitrarily cannot be a judicial decision; for the hallmark of a judicial decision is the quality of rationalities ... However, without the articulation of reasons, a judicial decision cannot be distinguished from an arbitrary decision. In my opinion the giving or reasons is correctly perceived as a ‘necessary incident of the judicial process’ because it enables the basis of the decision to be seen and understood both for the instant case and for the future direction of the law.”[297]

[204] Despite the omissions from the matters that were drawn to Bergin J’s attention, we would normally regard ourselves as being bound by it unless we were to find contrary authority or a factor to distinguish this case from that in Ingot. The judgment of Young J in AWB v Cole is not contrary authority for his views were clearly obiter dicta as he did not need to form a view on the application of either limb of legal professional privilege in the Tribunal to reach his decision. Waterford is, on our view, a contrary authority but it has not been interpreted as such by Bergin J. Re Farnaby and Military Rehabilitation and Compensation Commission [298] analyses the issues by reference to the statutory characteristics of review in the Tribunal [299] before expressing an opinion that Waterford requires the conclusion that litigation privilege applies generally in the Tribunal.[300] In doing so, it declines to follow Ingot. The Tribunal in that case summarised its conclusion at the beginning of its

reasons when it stated that:

“... litigation privilege does apply in the Administrative Appeals Tribunal, unless there is a clearly expressed abrogation of the privilege in legislation governing the application. We regret that we do not agree with the conclusion or reasoning of Bergin J. Claims for litigation privilege in the Tribunal should be dealt with in accordance with these reasons.”[301]

Unfortunately, that statement does not solve our dilemma for even though it is a decision of a Tribunal over which the President, Downes J, has presided, it does not fall within the category of contrary authority. Only courts may declare the law; tribunals must merely attempt to ascertain and follow it.

[205] Having considered the authorities, we consider that we are bound by the High Court’s judgment in Waterford. On our analysis of it, the issue that it had to decide is on all fours with that concerning us: may the second limb of legal professional privilege, or litigation privilege, be claimed when the actual or anticipated proceedings are not proceedings in a court but in the Tribunal. Although only Dawson J expressly dealt with the point, Mason, Brennan and Wilson JJ necessarily had to accept that it did in order to reach the conclusion that they did. Had they not accepted that proposition, they would have found that the Tribunal had committed an error of law and they did not. In reaching this conclusion, we do not consider that we can be bound by Bergin J’s view of Waterford. If we were to do that, we would be upsetting the doctrine of stare decisis [302] by preferring the view of an intermediate appellate court to that of the final appellate court in Australia, the High Court. That cannot be so.

65. In the matter of CNC v NSW Police Force [2017] NSWCATAD 43, Hennessy LCM, Deputy President, found that advice privilege applied in respect of a matter in the Administrative and Equal Opportunity Division of the NSW Civil and Administrative Tribunal.

Statutory displacement of the doctrine

66. In R v P (2001) 53 NSWLR 664, the NSW Supreme Court of Appeal considered whether s 13(2) of the Protected Estates Act 1983 (NSW) had the effect of displacing legal professional privilege. Section 13(2) of that Act provided that:

13 Declaration and order where person incapable of managing affairs

…

(2)   On the hearing of an application for the purposes of this section, evidence … may be given to the Court in such form and in accordance with such procedure as the Court thinks fit and the Court may otherwise inform itself as to the person’s capability to manage his or her affairs as it thinks fit.

67. Finding that s 13(2) of the Protected Estates Act did not displace legal professional privilege the Court held:

[43] As regards s.13 of the Protected Estates Act, in my opinion it is not sufficient to displace either common law legal professional privilege or s.119 of the Evidence Act. Cases such as Baker v. Campbell (1983) 153 CLR 52 and Corporate Affairs Commission (NSW) v. Yuill [1991] HCA 28; (1991) 172 CLR 319 stress that legal professional privilege will be displaced by statute only if the statute manifests a clear intention to do so; and in my opinion, s.13 does not manifest such a clear intention. In so far as cases such as Parry-Jones, Bradley v. Wilton, Church v. Price and In re L may suggest otherwise, in my opinion they are inconsistent both with the High Court authorities to which I have referred and with the terms of s.119 of the Evidence Act.

68. R v P was applied in Re Adoption of NG (No1) [2014] NSWSC 627 (re Adoption) in which the Supreme Court held that despite the protective nature of the child welfare proceedings, legal professional privilege was not ousted. Brereton J held:

In my view, s 126 of the Adoption Act should not be construed as intended to abrogate legal professional privilege. To accommodate such an intention, it would be necessary to suppose that it intended to adopt the dichotomy between third party communications and solicitor/client communications referred to in Re L, which dichotomy is not reflected in the Evidence Act. To the contrary, while the Evidence Act distinguishes between legal advice privilege (in s 118) and litigation privilege (in s 119), s 119 captures solicitor/client communications as well as third party communications. In any event, the decision of the Court of Appeal in R v P tells against this Court following Re L in that respect.

Accordingly, in my view, neither the nature of the proceedings, nor the dictates of the paramountcy principles, nor Adoption Act, s 126, impinge on the legal professional privilege that attaches to communications between a lawyer or litigant and a potential witness, including an expert witness. No "balancing exercise" is involved.

DECISION

Was the report provided to Mrs NZC’s lawyer either (a) in the form of advice, or (b) for the provision of legal services in contemplation of or for use on the current proceedings?

69. I am satisfied that the Report is a report prepared for legal services in contemplation of the proceedings before the Tribunal. My reasons are as follows:

1. Mr DAC filed his applications on 1 August 2017;

2. Mrs NZC was advised of the applications.

3. Ms Napoli provided Dr Z with a letter of instruction dated 10 August 2017. Whilst I have not seen the letter of instruction I accept the statement contained in the Report that there was one, and that it requested the provision of an assessment of Mrs NZC’s mental capacity with respect to number of matters that have direct relevance to the applications before the Tribunal;

4. The Report is dated 23 August 2017. It is headed “medicolegal report” and was sent to office of Ms Napoli, Mrs NZC’s solicitor;

5. The account for the Report was directed to Mrs NZC’s solicitors;

6. An attachment to the Tax Invoice provided with the Report indicates that:

1. Dr Z reviewed a number of documents including applications filed by Mr DAC and information provided by Ms Napoli that relates to the applications.

2. Dr Z discussed his preliminary views with Mrs NZC’s solicitor and asked the solicitor if she wished him to proceed with the report.

7. The matters considered in the assessment have direct bearing to the matters to be considered in respect of the applications before the Tribunal;

8. In the Report, Dr Z confirms that he understands and agrees to be bound by the NCAT Procedural Direction regarding Expert Witnesses;

9. Correspondence and evidence to the Tribunal on behalf of Mrs NZC spoke of the intention to obtain an expert report from Dr Z to be tendered in respect of the substantive matters;

10. Correspondence from William Musgrave, who has corresponded with the Tribunal on behalf of Mr DAC, refers to advice from Dr Z to Mr DAC, to the effect that he was to provide a report to be tendered by her legal representative as an expert report.

70. There is no reasonable basis to believe that the report of Dr Z spoken of in the correspondence and oral evidence at this Tribunal is other than the Report.

71. The Report and the material submitted with the Report, as well as collateral evidence before the Tribunal, support a conclusion that it was prepared on the instructions of Ms J. Napoli, who is Mrs NZC’s solicitor and who at that time was advising her in respect of the current proceedings and was provided for the dominant purpose of providing a report for the provision of legal services including for tendering in the current proceedings as the report of an expert witness, although it was subsequently decided not to tender the Report.

72. Having reached the decision set out above, it is my decision the Report, including the incorporated assessment of Mrs NZC, was brought into effect for the dominant purpose of the provision of legal services including for tendering in the current proceedings as the report of an expert witness.

Would the Report attract legal professional privilege in a court?

73. The decision in Esso establishes that at common law, legal professional privilege applies to communications made in connection with giving or obtaining legal advice as well as to the provision of legal services, including representation in proceedings in a court.

74. Section 119 of the Evidence Act provides that legal professional privilege applies to the contents of a document that was prepared for the dominant purpose of the client being provided with professional legal services relating to a legal proceeding in which the client is a party.

75. As I am satisfied that the Report was provided for the provision of legal services, including representation in this matter, I am satisfied that if this matter were to be heard in a court, it would attract legal professional privilege, and in particular, litigation privilege.

Guardianship Division of the NSW Civil and Administrative Tribunal

76. Seeking to reconcile the authorities regarding the application of litigation privilege, to matters heard in Tribunals is not without difficulty.

77. The leading case suggesting that legal professional privilege applies to proceedings in a Tribunal is Waterford (supra). In Waterford:

1. Mason and Wilson JJ do not confine their comments to the legal advice component of legal professional privilege. In their judgement they refer to circumstances giving rise to litigation privilege as indicated in the following excerpts:

legal professional privilege attaches to confidential, professional communications between government agencies and their salaried legal officers undertaken for the sole purpose of seeking or giving legal advice or in connexion with anticipated or pending litigation. [6] (emphasis added)

If a communication satisfies the description of a document brought into existence for the sole purpose of enabling a confidential professional communication between a client and his legal adviser in connexion with pending or anticipated legal proceedings then in our opinion it follows that it is an exempt document within the meaning of s.42 of the Act. [at11].

2. Dawson J specifically refers to litigation for the concept of legal professional privilege applying to the AAT.

78. However, in Ingot:

1. Bergin J decided that the comments of Dawson J were obiter regarding litigation privilege as the matter to be decided in that matter was the application of advice privilege. Her Honour decided that litigation privilege did not apply to the AAT, in effect, because its proceedings were insufficiently judicial in nature. However, her Honour notes in the decision that the respondent did not call any evidence about how proceedings were conducted at the AAT.

2. Bergin J accepts that two aspects of the nature of proceedings in the AAT were relevant considerations but alone were not sufficient to attract the doctrine of litigation privilege. These were:

1. That the AAT had authority to determine issues that were legally binding in parties; and

2. That legal representation was contemplated.

3. Against the matters listed above, Bergin J noted that the following circumstances distinguished the operation of the AAT from that of an adversarial institution:

1. The AAT was not bound by the rules of evidence;

2. The AAT could inform itself in any manner considered appropriate and could make directions including regarding the production of documents;

3. The AAT functions to review decisions of administrative decision-makers who are under an obligation to appear and to assist the Tribunal;

4. The AAT stood in the shoes of the decision maker and could inform itself in any way it sees fit, go beyond submitted;

5. There was no onus of proof and the proceedings were inquisitorial in nature.

4. At [36], Bergin J considered a submission that Mason and Wilson JJ accepted that the AAT “legal proceeding” for the purposes of the FOI Act by in their finding “that communications in relation to an application before the AAT would be privileged if there was “connection between the document and the legal proceedings” but appears not to have accepted that submission.

79. In VCR and Ors, the AAT notes that in addition to the two factors considered relevant, but not sufficient, by Bergin J, there were other matters not brought Her Honour’s attention that apply to the AAT and are usually attributed to adversarial proceedings. These are:

1. The requirement that hearings be conducted in public.

2. The requirement to give reasons for decision.

80. The jurisdiction of the Guardianship Division of the NSW Civil and Administrative Tribunal includes reviewing enduring guardianship appointments, making and reviewing guardianship orders, making and reviewing financial management orders, consenting to medical treatment in respect of certain people and, under certain circumstances, reviewing enduring powers of attorney.

81. The following provisions of the Guardianship Act are of relevance in considering whether proceedings at the Guardianship Division might attract litigation privilege:

1. Section 6L provides that the Supreme Court may review the appointment of an enduring guardian.

2. Section 15(1)(b) provides that where a person is subject to a guardianship order made by the Supreme Court, the Guardianship Division shall not make a guardianship order in respect of that person without the consent of the Supreme Court.

3. Section 15(1)(c) provides that where a person is subject to a guardianship order made by the Children’s Court under the Children and Young Persons (Care and Protection) Act 1998 (NSW), the Guardianship Division shall not make a guardianship order in respect of that person without the consent of the Children’s Court.

4. Section 22 provides that where an order is made in respect of person over whom the Supreme Court has made a guardianship order, the Supreme Court order is terminated.

5. Section 23 provides that a guardianship order has no effect where the Supreme Court makes a subsequent order.

6. Section 25K provides that the Tribunal lacks jurisdiction to make a financial management order, other than an interim financial management order, if the question of the person’s capability to manage his or her own affairs has been referred to the Supreme Court.

7. Section 25L provides that with the concurrence of the Supreme Court, the Tribunal can refer to it matters regarding the capacity of an individual to manage his or her affairs.

8. Section 29 provides that the Tribunal requires the consent of the Supreme Court to make a direction regarding a person subject to a guardianship order made by the Supreme Court.

9. Section 35 provides that it is an offence to carry out certain medical or dental treatment of a person unless consent has been provided by the Tribunal, or in accordance with an order of the Supreme Court.

82. Sections 41 and 86 of the NSW Trustee and Guardian Act 2009 (NSW) provide respectively that the Supreme Court can make and revoke financial management orders committing a person’s affairs to management.

83. Section 33(2) of the Powers of Attorney Act 2003 (NSW) provides that the Supreme Court and the Civil and Administrative Tribunal have jurisdiction to deal with applications in respect of enduring powers of attorney.

84. The following provisions of the Civil and Administrative Tribunal Act are relevant to considering whether the Tribunal is one to which litigation privilege applies:

1. Section 45 provides that parties are legally represented only by consent. However, cl 9 of Sch 6 provides that in the Guardianship Division, where proceedings are under the Children and Young Persons (Care and Protection) Act, legal representation is a right;

2. Section 46(1)(b) provides that the Tribunal can call witnesses of its own;

3. Section 46(1)(b) provides that the Tribunal can issue oaths and affirmations;

4. Section 49 requires that hearings be conducted in public;

5. Section 50 provides that hearings are required except in certain cases. Clause 6 of Sch 6 provides that in the Guardianship Division hearings are required except in ancillary or interlocutory matters;

6. Section 54 provides that the Tribunal can refer questions of law to the Supreme Court;

7. Section 60 provides that the Tribunal can make costs orders;

8. Section 62 requires the giving of reasons, and cl 11 of Sch 6 requires written reasons for decision of Guardianship Division matters unless decided by a tribunal constituted by less than three members;

9. Section 73 provides that the Tribunal has the same powers as the District Court regarding contempt of the Tribunal.

85. The review of the legislation governing the procedures of the Guardianship Division indicates that in a number of matters the Tribunal is required to determine matters that are also matters considered by the Supreme Court. As was commented in Farnaby (supra) it would be problematic if legal professional privilege applied in one, but not the other, alternative jurisdiction.

86. In respect of its proceedings, the Guardianship Division has, in common with the AAT, the power to bind individuals by its decisions, and in respect of some limited matters, a right to representation. These attributes were considered by Bergin J in Ingot, to be relevant, but not sufficient, to render the proceedings at the AAT ones in respect of which litigation privilege would apply.

87. In addition deciding some matters of a type that are also decided in the Supreme Court, the following features are relevant:

1. In contrast to the AAT, the Guardianship Division is a primary decision-maker. It does not stand ‘in the shoes of’ an administrative decision-maker.

2. The jurisdiction of the Guardianship Division is invoked by application made by an applicant about the affairs of another person.

3. The Tribunal can issue summonses for the production of material.

4. There is no provision for the issue of a notice which has effect “notwithstanding any rule of law relating to privilege” (see ss 37(2) and 37(3) of the Administrative Appeals Tribunal Act 1975 (Cth).

5. Whilst s 38(2) of the Civil and Administrative Act establishes that the Tribunal may “inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice”, s 67 of the Civil and Administrative Act provides that nothing in that Act requires the disclosure of a document that would be protected in a court by certain provisions of the Evidence Act, including its provisions regarding litigation privilege (s 119 of the Evidence Act).

6. The Guardianship Division must issue written reasons for decisions on all matters involving three members.

88. In Ingot, Bergin J accorded the decisions in McDonald and Bushell more weight than she accorded the view of Dawson J in Waterford. Two of the characteristics that were described in McDonald as indicating that proceedings in the AAT are not be considered adversarial were that the AAT could direct the production of documents and that those administrative decision-makers whose decisions were under review are to assist the Tribunal including providing documents. As indicated above, whilst the Guardianship Division can seek evidence and inform itself in the way it considers necessary, by virtue of the operation of s 67 of the Civil and Administrative Tribunal Act, those provisions do not require the disclosure of documents protected under certain provision of the Evidence Act including ss 118 and 119 [of the Evidence Act].

89. On this basis, it is my view that there are substantial differences in the nature of the jurisdiction and proceedings of the Guardianship Division compared to the AAT that augment those factors that Bergin J considered relevant, but not sufficient, to characterise proceedings before the AAT as the type of proceedings to which litigation privilege might attach.

90. It is also relevant, in my view that the decision in Ingot was in respect of a claim of privilege made in the NSW Supreme Court about documents pertaining to a matter before the AAT. In Farnaby and VCR, in distinguishing the Ingot decision, the AAT notes that in those matters the claim was made in the AAT regarding documents pertaining to the hearing in the AAT.

91. In the current matter, the claim for privilege is made in the Guardianship Division in respect of a document provided for the hearing in this Tribunal and provided under summons in this Tribunal. In this matter the parties were either legal practitioners or represented or assisted by, legal practitioners.

88. In Esso, Gleeson CJ, Gaudron, and Gummow JJ endorsed the comments of Deane J in Baker and v Campbell, that:

a person should be entitled to seek and obtain legal advice in the conduct of his or her affairs, and legal assistance in and for the purposes of the conduct of actual or anticipated litigation, without the apprehension of being prejudiced by subsequent disclosure of the communication

93. Having considered the legislative provisions, the nature of the jurisdiction and its proceedings and the relevant cases, it is my view that current proceedings are sufficiently in the nature of litigation that the protections endorsed by the High Court apply. It is appropriate that Mrs NZC’s lawyers are provided with the opportunity of seeking material in respect of her participation in the hearing without losing the protection that would be provided to that material had the applications been made in a different jurisdiction.

94. Accordingly, my decision is that litigation privilege applies to the Report in respect of the current proceedings before the Guardianship Division of the NSW Civil and Administrative Tribunal.

Is the operation of legal professional privilege ousted by statute?

95. If legal professional privilege is to be ousted by statute there must be a clear indication that this is the case (see Grant v Downs, SZHWY, R v P, re Adoption).

96. Section 38(2) of the Civil and Administrative Tribunal Act provides that the Tribunal is not bound by the rules of evidence and may inquire into and inform itself of any matter as it thinks fit. In R v P and in re Adoption, similar provisions were found to be ineffective to oust the operation of legal professional privilege.

97. Further, s 67 of the Civil and Administrative Tribunal Act stipulates that nothing in that Act requires the disclosure of a document that could not be adduced in evidence before a court.

98. Taking into account the decided cases and the provisions of s 67 of the Civil and Administrative Tribunal Act, and following my decision that the Report would be protected under litigation privilege if this matter were before a court, I am satisfied that the statute does not evidence an intention to oust the operation of the doctrine of legal professional privilege, including litigation privilege.

Has privilege been waived?

99. There is no submission that privilege has been waived and I am satisfied that it has not been waived.

CONCLUSION

100. Having decided that litigation privilege applies to the Report, it is my decision to refuse Mr DAC access to the Report.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 05 July 2018