O'Hara and Comcare (Compensation) - [2024] AATA 3152

O’Hara and Comcare (Compensation) [2024] AATA 3152 (4 September 2024)
Division:GENERAL DIVISION
File Number(s): 2023/9545
Re:Damon O’Hara
APPLICANT

ComcareAnd
RESPONDENT

INTERLOCUTORY DECISION
Tribunal:Mr S. Webb, Member
Date:4 September 2024
Place:Canberra

Objections not upheld. Subject to compliance with the confidentiality orders issued on 20 August 2024, Comcare is granted leave to inspect the documents produced by the Employing Agency forthwith.
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Mr S. Webb, Member
Catchwords
PRACTICE AND PROCEDURE – worker’s compensation – rehabilitation program – summons – objections to grant of access – legal professional privilege – ‘without prejudice’ objection – public interest disclosure – national security – relevance – disparagement – objections not made out
Legislation
Administrative Appeals Tribunal Act 1975 s 40B
Public Interest Disclosure Act 2013 s 20 and 21
Cases
Australian Competition and Consumer Commission v NSW Ports Operations Hold Co Pty Ltd [2020] FCA 1232
Comcare v Maganga [2008] FCA 285
Commonwealth Director of Public Prosecutions v Citigroup Global Markets Australia Pty Limited (No 3 – privilege claims) [2021] FCA 1208
Dowling v Ultraceuticals Pty Ltd [2016] NSWSC 386
Tallerman & Co Pty Ltd v Nathan’s Merchandise (Vic) Pty Ltd [1957] HCA 10
O’Hara and Comcare [2024] AATA 3013.
REASONS FOR DECISION
Mr S. Webb, Member
4 September 2024

Damon O’Hara applied for review of a reconsideration decision by Comcare to affirm a rehabilitation program determined by the Employing Agency.
In the course of the resulting proceedings, on 18 March 2024, Mr O’Hara requested the Tribunal to summons materials from the Employing Agency.
The requested summons was in the following terms:
All records relating to any work trail arranged for injured worker DAMON O’HARA, born XXX. Specifically included in this request (but not limiting its scope) is all correspondence, file notes, internal departmental chat, diary entries, meeting/ appointment records, etc., relating a proposed work trial with the Department of Climate Change, Energy Efficiency and Water (DCCEEW) in which Mr O’Hara was directed to attend the John Gorton Building at 9am on 4 September 2023, but which did not proceed (with last minute notification). Correspondence from DCCEEW regarding that cancellation is an essential element of this request.
On 19 March 2024, the Tribunal sealed and issued the summons requested by Mr O’Hara.
Following grant of an extension of time in which to comply with the summons, on 3 May 2024, the Employing Agency produced documents in compliance with the summons and lodged an application for confidentiality orders under s 35 of the Administrative Appeals Tribunal Act 1975 (AAT Act). The Employing Agency produced further documents on 10 May 2024 and 31 July 2024 and further applications for s 35 confidentiality orders (collectively Summons Documents).
Importantly, the Employing Agency, advised by the Australian Government Solicitor, redacted material it asserted is:
(a)not relevant;
(b)covered by legal professional privilege;
(c)attracts public interest immunity; and
(d)prohibited from disclosure under the Public Interest Disclosure Act 2013 (PID Act).
On 14 May 2024, the Tribunal made Interim Confidentiality Directions under s 35 of the AAT Act which have now been overtaken by orders made on 20 August 2024, which are in effect.
On 29 May 2024, the Tribunal issued orders under s 40B(1) of the AAT Act, granting the parties leave to inspect the Summons Documents (subject to compliance with confidentiality orders). Mr O’Hara was granted leave to inspect the documents first, with Comcare being granted leave to inspect the documents produced thereafter, subject to objection.
Comcare applied for suspension of the inspection orders and argued Comcare should be granted leave to first inspect the Summons Documents. Mr O’Hara opposed Comcare’s application.
On 2 July 2024, I refused Comcare’s objections and reinstated the inspection orders.[1]
[1] O’Hara and Comcare [2024] AATA 3013.
On 15 July 2024, Mr O’Hara objected to Comcare being granted leave to inspect a subset of the Summons Documents, namely 11 documents or parts of documents specified in tabular form on 26 July 2024 (Table of Objections). He made further related submissions on 26 July 2024 and 7 August 2024.
On 7 June 2024 and 7 August 2024, Comcare informed the Tribunal it opposed the objections and pressed for full access to the Summons Documents (subject to the confidentiality orders).
On 31 July 2024, the Employing Agency responded to Mr O’Hara’s objections to claims of legal professional privilege and public interest disclosure redactions.
Mr O’Hara has made 11 objections to Comcare being granted leave to inspect parts of the Summons Documents. His objections are raised on grounds relating to the Employing Agency’s claims of legal professional privilege, public interest disclosure, national security, without prejudice communications, alleged disparagement and mischaracterisation, and relevance.
Considering Mr O’Hara’s objections and the submissions which have been made, it is clear enough that several are primarily directed to the Employing Agency’s production of contested documents or information.
Legal professional privilege
Two of Mr O’Hara’s objections[2] are in respect of claims of legal professional privilege by the Employing Agency over two emails sent on 24 October 2023 and 7 November 2023. I should immediately observe, there is no email on 7 November 2023 covered by a claim of privilege. In all likelihood, Mr O’Hara’s second objection is directed to an email on 7 November 2022 in respect of which a privilege claim has been made. I will proceed on that understanding.
[2] Table of Objections, objections 7 and 8.
As I comprehend these objections, they are expressly directed to the Employing Agency’s claim of privilege rather than to inspection by Comcare should the privilege claim fail, although Mr O’Hara seeks first access in such an event.
Mr O’Hara infers from contextual information the allegedly privileged material relates to personnel matters which are directly relevant to these proceedings.
I am satisfied the emails were created for the purposes of obtaining or providing legal advice and the specific information in each email attracts legal professional privilege. The asking of questions by a lawyer in the 24 October 2023 email for the purposes of obtaining information necessary to provide legal advice in respect of a draft letter is privileged communication. Similarly, a human resource officer raising issues with a lawyer in the email dated 7 November 2022, in consideration of Mr O’Hara’s earlier email on 4 November 2022, and the lawyer’s response on 9 November 2022 are also privileged communications.
The assertion each email chain is of direct relevance is not controversial, but this does not diminish the privilege. The Employing Agency clearly considered the material to be relevant and included it in the Summons Documents. Mr O’Hara’s submission about relevance is not to the present point: relevance does not trump legal professional privilege, once established.
The Employing Agency’s claim of legal professional privilege is upheld and Mr O’Hara’s objections are not accepted.
Public interest disclosure
One of Mr O’Hara’s objections[3] is in respect of public interest disclosure in respect of all of the Summons Documents. The objection appears to be squarely directed against production of the Summons Documents in their present form by the Employing Agency. Albeit not at all clear, this objection to Comcare inspecting the Summons Documents likely hinges on compliance with protections relating to ‘identifying information’ in s 20 of the PID Act and the exclusion from compulsion to produce such information to the Tribunal in s 21 of that Act.
[3] Ibid, objection 11.
Mr O’Hara asserts production of the Summons Documents by the Employing Agency might contravene s 20 of the PID Act because they are likely to enable the identification of a discloser. The factual basis of this submission is not drawn out. While it can be accepted some caution is required alluding to facts which might, themselves, reveal or disclose confidential matters, there are obvious difficulties dealing with an objection which requires speculation, or which is raised in general terms.
Subsections 20(1) and (2) of the PID Act provide it is an offence to disclose or use ‘identifying information’ which enables the identification of a person who has made a “public interest disclosure”, as defined in s 26. The offence provisions are disapplied by exceptions set out in s 20(3):
(3) Subsections (1) and (2) do not apply if one or more of the following applies:
(a) the disclosure or use of the identifying information is for the purposes of this Act;
(b) the disclosure or use of the identifying information is in connection with the performance of a function conferred on the Ombudsman by section 5A of the Ombudsman Act 1976;
(c) the disclosure or use of the identifying information is in connection with the performance of a function conferred on the IGIS by section 8A of the Inspector‑General of Intelligence and Security Act 1986;
(d) the disclosure or use of the identifying information is for the purposes of:
(i) a law of the Commonwealth; or
(ii) a prescribed law of a State or a Territory;
(e) the person likely to be identified by the identifying information has consented to the disclosure or use of the identifying information, or acted in a way that is inconsistent with keeping that person’s identity confidential;
(f) the identifying information has previously been lawfully published.
Note: A defendant bears an evidential burden in relation to a matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).
Even if Mr O’Hara is correct to assert a public interest disclosure was made and the Summons Documents contain ‘identifying information’ about the discloser, the exception in subparagraph 20(3)(d)(i) is presently relevant. Disclosure for the purposes of complying with a summons issued under s 40A of the AAT Act, a law of the Commonwealth, could be argued to enliven the exception.
The extent to which a Tribunal summons under s 40A of the AAT Act is affected by s 21 of the PID Act, if at all, has not been squarely raised or argued in any detail by the parties. Section 21 is in the following terms:
A person who is, or has been, a public official is not to be required:
(a) to disclose to a court or tribunal identifying information that the person has obtained; or
(b) to produce to a court or tribunal a document containing identifying information that the person has obtained;
except where it is necessary to do so for the purposes of giving effect to this Act.
As can be seen, this section provides exception to the bar on requiring a person to disclose or produce identifying information to a court or a tribunal ‘where it is necessary to do so for the purposes of giving effect to this Act’. The objects of the PID Act are set out in s 6:
The objects of this Act are:
(a) to promote the integrity and accountability of the Commonwealth public sector; and
(b) to encourage and facilitate the making of public interest disclosures by public officials and former public officials; and
(c) to ensure that public officials, and former public officials, who make public interest disclosures are supported and are protected from adverse consequences relating to the disclosures; and
(d) to ensure that disclosures by public officials, and former public officials, are properly investigated and dealt with.
In all likelihood, the objective of protecting a discloser from adverse consequences relating to the disclosure is given expression in s 21. In this context, it is likely the bar on requiring disclosure would apply despite the Tribunal’s summons power in s 40A of the AAT Act. Nevertheless, it may be possible to argue one of the purposes of the PID Act is given expression in the exception set out in s 20(3)(d)(i) in respect of disclosure for the purposes of a law of the Commonwealth. While such an exception is arguably applicable for the purposes of giving effect to the PID Act, the extent to which the statutory protections in respect of identifying information of disclosers under the PID Act intrudes upon the Tribunal’s summons power under s 40A of the AAT Act has not been squarely addressed or argued.
Without detailed submissions addressing this point, I will go no further with it than to make two observations. The Employing Agency is bound to comply with the PID Act insofar as it is applicable in the circumstances of this case. It is not for the Tribunal to determine if there has been a contravention of s 20 or s 21 of the PID Act. The Tribunal has no such power when considering an objection of the kind Mr O’Hara has made.
The Employing Agency has been given opportunity to address Mr O’Hara’s objection in relation to the PID Act and it has withheld material it considers necessary. The Employing Agency has identified specific information relating to public interest disclosure considerations which it has not provided to the Tribunal. On the submissions made, I understand the Employing Agency is satisfied it has identified and redacted all identifying information as required.
As the Employing Agency correctly observes, Mr O’Hara has not specified additional material which he asserts should not have been produced or disclosed. His objection applies to the entirety of the Summons Documents. The general nature of Mr O’Hara’s objection in relation to PID Act considerations is problematic without particularity in respect of ‘identifying information’ and more specific submissions addressing the broad proposition underlying his objection.
Considering these matters, I am not persuaded Mr O’Hara’s objection raised on s 20 and s 21 of the PID Act in respect of all the Summons Documents is presently made out. His objection on this ground is refused.
Furthermore, I note the confidentiality orders which are in effect in these proceedings preclude public disclosure of restricted information. The parties are bound under the Harman doctrine not to use the Summons Documents for any purpose other than these proceedings. Should further orders be required to protect the identity of a discloser, further application may be made under s 35 of the AAT Act.
Without prejudice
Three of Mr O’Hara’s objections[4] are raised on without prejudice privilege grounds in respect of 3 documents which he alleges capture good faith without prejudice discussions with his employer involving genuine attempts to settle disputes between them about his employment. These objections are squarely directed to “the range of documents produced by the Employing Agency” and they are raised on grounds of the ‘without prejudice’ privilege Mr O’Hara’s asserts. As I understand the objection, Mr O’Hara objects to Comcare inspecting these documents on grounds of unwaived privilege.
[4] Ibid, objections 1, 2 and 10.
The without prejudice privilege is given form in s 131 of the Evidence Act 1995:
(1) Evidence is not to be adduced of:
(a) a communication that is made between persons in dispute, or between one or more persons in dispute and a third party, in connection with an attempt to negotiate a settlement of the dispute; or
(b) a document (whether delivered or not) that has been prepared in connection with an attempt to negotiate a settlement of a dispute.
The exceptions in s 131(2) notwithstanding, s 131(5)(a) provides meaning to the term ‘dispute’:
(a) a reference to a dispute is a reference to a dispute of a kind in respect of which relief may be given in an Australian or overseas proceeding;
Importantly, these provisions apply in respect of proceedings set out in s 4, and this does not extend to proceedings in the Tribunal. Nevertheless, the common law principles of the without prejudice privilege should be considered. These were summarised in Commonwealth Director of Public Prosecutions v Citigroup Global Markets Australia Pty Limited (No 3 – privilege claims) (DPP v Citigroup)[5]. The following points of present relevance can be distilled.
(a)Without prejudice privilegeexcludes from evidence ‘without prejudice’ admissions by words or conduct made by parties in the course of negotiations to settle a dispute in litigation.
(b)It applies to all negotiations genuinely aimed at settlement.
(c)It probablyextends to communications aimed at settling a dispute before the litigation has begun.
(d)Documents containing or disclosing such communications are privileged.
(e)The privilege extends to disclosure to third parties in a subsequent dispute provided there is sufficient connection between the subject matter of the original dispute and the later one.
[5] [2021] FCA 1208 at [115], citing Australian Competition and Consumer Commission v NSW Ports Operations Hold Co Pty Ltd [2020] FCA 1232 at [51]-[54].
The term ‘without prejudice’ is directed to preservation of a party’s legal position in genuine negotiations with another party to settle a legal dispute where an offer of compromise is made.[6] Even though there is some uncertainty whether without prejudice privilege extends beyond express and implied admissions,[7] it is essentially concerned with the use of offers of compromise in settlement negotiations in a dispute, and what is expressly or impliedly admitted in them, as evidence in litigation of the dispute. It is for this reason the extension of privilege from one dispute to another requires a sufficient connection between the subject matter of the disputes, including consideration “whether the party resisting disclosure would have had a legitimate expectation that the material brought into existence for the purposes of settling the earlier dispute would not be used against it in the later dispute”[8].
[6] Tallerman & Co Pty Ltd v Nathan’s Merchandise (Vic) Pty Ltd [1957] HCA 10 at 17.
[7] DPP v Citigroup at [145]-[146].
[8] Dowling v Ultraceuticals Pty Ltd [2016] NSWSC 386 at [37].
The three documents which are the subject of Mr O’Hara’s without prejudice privilege claims in the objections he has made are an email dated 15 June 2023, an email dated 15 July 2022 and a meeting record dated 8 March 2023. These documents disclose information about negotiations in the context of disputation between Mr O’Hara and the Employing Agency in respect of his employment at different times.
Without prejudice privilege is unlikely to cover all communications between Mr O’Hara and the Employing Agency relating to disputation in respect of his employment, including options for redeployment, rehabilitation or cessation of his employment. To attract the privilege, the communications must be genuinely aimed at settlement of a dispute in the context of actual or anticipated litigation, and they must contain express or implied admissions. Only in this way can the privilege serve the public policy interest underlying it, namely, to discourage recourse to litigation and encourage genuine attempts to settle disputes without prejudice in the proceedings which, otherwise, would be litigated. I am satisfied the documents do not surpass these thresholds.
It is not established that the documents refer to communications in the context of litigation then on foot or under contemplation. It is also not established that the information included actual or implied admissions by either party to the dispute.
The question of whether the disputation in respect of Mr O’Hara’s employment is sufficiently connected to the present dispute in respect of the rehabilitation program determined for Mr O’Hara under s 37 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) has not been squarely addressed. While there might be some contextual connection, it cannot be assumed the subject of the present dispute about the content of a 12-month rehabilitation program which commenced on 16 December 2023 is sufficiently connected to the earlier disputes in respect of Mr O’Hara’s employment circumstances. Without more, assertion of without prejudice privilege on grounds of belief is not sufficient.

Furthermore, even if I am wrong about this, any without prejudice privilege would need to be weighed against the purposes and underlying public interest in exercise of the Tribunal’s summons power in s 40A of the AAT Act in respect of ensuring each party has an opportunity to consider materials of adjectival relevance to the issues in dispute when preparing their respective cases. In consideration of Mr O’Hara’s without prejudice privilege objections, I am not persuaded the privilege asserted is made out to the extent that the controversial material is protected from production in compliance with the summons or disclosure to Comcare.
I am satisfied Mr O’Hara’s without prejudice privilege objections are not made out.
National security
Two of Mr O’Hara’s objections[9] are raised on grounds relating to national security considerations. The objections appear to be aimed at the Employing Agency’s treatment of the particular documents, without summarising the “gist” of protected information and disclosing security discussions with no relevance. To the extent Mr O’Hara’s objects to Comcare inspecting the documents, it is probable the objection is raised on operational and relevance grounds.
[9] Ibid, objections 5 and 6.
Mr O’Hara objects to the contents of an email sent at 6:39PM on Monday 21 August 2023 on grounds it contains relevant information which should be protected for national security purposes, only the “gist” of which should be produced.
The Employing Agency has claimed confidentiality over some of the contents of this email.
The additional information Mr O’Hara is concerned to protect is not specifically identified in his objection. To the extent his objection is in respect of the entirety of the email, the national security considerations have not been clearly drawn.
I am not satisfied Mr O’Hara’s objection is made out or that additional information in the email needs to be protected from disclosure to Comcare.
Mr O’Hara objects to the record of a meeting dated 23 August 2023 on the ground “Clearance holders should not expect to see those discussions produced in proceedings where there is no relevance”. Mr O’Hara adverts to policy reasons in support of this objection.
The Employing Agency has not seen fit to go so far as Mr O’Hara considers necessary in his objection.
I accept there may well be good policy reasons which serve the public interest in supporting candid discussions within the Employing Agency’s security team. I am not persuaded that production to the Tribunal or disclosure to Comcare of the contents of this document would have the chilling effect Mr O’Hara is concerned about. The objection is not made out on national security grounds.
The objection might also be construed as one of relevance, although this is not fleshed out. Considering the applicable thresholds discussed in Comcare v Maganga[10] (Maganga), I am satisfied the document has adjectival relevance, at least, within the scope of the Tribunal’s summons.
[10] [2008] FCA 285 at [37]-[38].
That being so, the objection is not upheld.
Mischaracterisation
Two of Mr O’Hara’s objections[11] proceed on grounds of allegedly unsupported disparagement and gross mischaracterisation.
[11] Ibid, objections 4 and 9.
Even if Mr O’Hara’s assertion of unsupported disparagement and mischaracterisation were proved and the impugned text is prejudicial, these are not grounds on which Comcare should be refused leave to inspect the particular documents.
These objections are not upheld.
Relevance
One of Mr O’Hara’s objections[12] is in respect of medical information Mr O’Hara contends is not relevant.
[12] Ibid, objection 3.
Mr O’Hara asserts medical information contained in an email sent at 1:18PM on 1 August 2023 is not relevant to these proceedings.
The information is in respect of actual or potential medical treatment. Medical treatment may well affect a person’s impairment or incapacity for work and rehabilitation. In the present context, medical treatment an injured employee has obtained or might obtain is a relevant matter to consider for the purposes of s 37(3)(h) of the SRC Act when determining a rehabilitation program.
Considering the thresholds discussed in Maganga’s case, I am satisfied the document has adjectival relevance to the issues in these proceedings.it is a relevant matter. For this reason, Mr O’Hara’s objection to disclosure of the medical information in the email to Comcare is not made out.
This objection is not upheld.
Decision
Objections not upheld. Subject to compliance with the confidentiality orders issued on 20 August 2024, Comcare is granted leave to inspect the documents produced by the Employing Agency forthwith.

64. I certify that the preceding 63 (sixty-three) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member

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Associate
Dated: 4 September 2024

Date of Interlocutory hearing: Heard on the papers

Applicant: Self-represented

Representative for the Respondent:
Mr J Watts, Australian Government Solicitor

Representatives for the Employing Agency:

Ms S New, Australian Government Solicitor

Mr R Quiggin, Australian Government Solicitor

Date of Interlocutory hearing:	Heard on the papers
Applicant:	Self-represented
Representative for the Respondent:	Mr J Watts, Australian Government Solicitor
Representatives for the Employing Agency:	Ms S New, Australian Government Solicitor Mr R Quiggin, Australian Government Solicitor