O'Brien and Comcare - [2005] AATA 517

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2005] AATA 517
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/1682

GENERAL ADMINISTRATIVE DIVISION )

Re MICHAEL O'BRIEN

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Senior Member M D Allen
Date3 June 2005
PlaceSydney

Decision
The decision under review is affirmed.

........(Sgd)...M D ALLEN.................
Senior Member

CATCHWORDS
Freedom of Information - Application for release of documents containing statements about the applicant on the file of a fellow employee– exemptions claimed on the grounds of legal professional privilege, personal privacy and that the documents are internal working documents – exemptions upheld.
Safety, Rehabilitation and Compensation Act 1988 s 4, 14, 52. 68, 69 and 74
Freedom of Information Act 1982 s 4, 36, 4, 42 and 45
Evidence Act 1995 (Cth) sections 117 to 126
Freedom of Information Amendment Act 1991
Re Dwyer and Department of Finance and Ors (1985) 8 ALD 474
Re Windsor and Australian Postal Corporation (1991) 22 ALD 401
Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49
Vance v Air Marshall McCormack and Anor [2004] ACTSC 78
Re McKinnon and Secretary, Department of Foreign Affairs and Trade [2004] AATA 1365
Australian Hospital Care (Pindara) Pty Ltd v Duggan [1999] VSC 131
Colakovski v Australian Telecommunications Corporation (1991) 23 ALD 1
Ward v Centrelink [2005] FCA 73
Kristoffersen v Department of Employment, Workplace Relations and Small Business [2002] FCA 55
Re Shewcroft and Australian Broadcasting Corporation (1985) 2 AAR 496
Re Williams and Registrar Federal Court of Australia (1985) 8 ALD 219
Wiseman v The Commonwealth of Australia (unreported Full Federal Court) G167 of 1989, 24 October 1989
Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257
Re Subramanian and Refugee Review Tribunal (1997) 44 ALD 435
REASONS FOR DECISION

3 June 2005   Senior Member M D Allen

1. The Respondent is a body corporate established pursuant to sections 68 and 74 of the Safety, Rehabilitation and Compensation Act 1988 (“SRC Act”) and pursuant to section 69 of that Act, one of its functions is to “make determinations accurately and quickly in relation to claims and requests made to Comcare under this Act”, in other words its duties include the making of decisions with regard to claims for compensation by Commonwealth employees in respect of an injury suffered by an employee if the injury results in death, incapacity for work or impairment (s14 SRC Act).
2.      By application made the 23^rd day of December 2004, the Applicant sought review of a decision by the Respondent to deny access to certain documents held by it. The withheld documents are documents containing statements about the Applicant which documents are held in a file pertaining to a claim pursuant to the SRC Act by a Julie Ann White also known as Julie Ann Mallens.
3.      The original request was phrased thus:
“…I request a copy of all documentation Comcare holds that contains statements about myself from both my workers compensation…

Grounds of appeal

[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.

Continue reading O'Brien and Comcare

Details

AGLC: O'Brien and Comcare [2005] AATA 517
Case: [2005] AATA 517
Decision Date: 3 June 2005

CaseChat Overview and Summary

The case of O'Brien against Comcare was heard in the Federal Court of Australia, where O'Brien sought the release of documents from Comcare that contained statements about him from a fellow employee. Comcare resisted the application on the grounds of legal professional privilege, personal privacy, and the status of the documents as internal working documents. The court was tasked with determining whether the exemptions applied to the documents were justified under the Freedom of Information Act 1982.

The central legal issues before the court were whether the exemptions from disclosure applied to the documents were valid. Specifically, the court had to consider if the documents were protected by legal professional privilege, if the disclosure of personal information would be an unreasonable invasion of privacy, and whether the documents qualified as internal working documents exempt from disclosure. These considerations involved an interpretation of the relevant provisions of the Freedom of Information Act 1982, the Evidence Act 1995 (Cth), and the Safety, Rehabilitation and Compensation Act 1988.

In its reasoning, the court held that the exemptions claimed by Comcare were valid. It found that the documents contained privileged legal advice and personal information that warranted protection under the Act. Furthermore, the court determined that the documents were indeed internal working documents, which are exempt from disclosure under the relevant legislation. Therefore, the court upheld the exemptions, affirming the decision not to release the documents.

As a result of the court's decision, the order was made to affirm the decision under review, meaning that the documents would not be released to O'Brien.

Orders

Orders of the court

The decision under review is affirmed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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GENERAL ADMINISTRATIVE DIVISION		)
Re		MICHAEL O'BRIEN