Von Stieglitz and Comcare
[2013] AATA 108
•28 February 2013
[2013] AATA 108
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/0675
Re
Katherine von Stieglitz
APPLICANT
And
Comcare
RESPONDENT
INTERLOCUTORY DECISION
Tribunal Mark Hyman, Member
Date 28 February 2013 Place Canberra No claim for legal professional privilege is presently before the Tribunal. Orders will be issued giving the respondent first access to the summonsed documents in order for a schedule of documents over which legal professional privilege is claimed to be prepared and submitted. Alternatively, the High Court is able to submit such a claim.
................[sgd]...........................................
Mark Hyman, Member
Catchwords
Practice and procedure – summons to produce books, documents or things – claim of legal professional privilege – validity of claim where summons procedure not followed – distinction between privilege claim by summonsed party and party to proceedings
Legislation
Administrative Appeals Tribunal Act 1975 (Cth), ss 40, 59A, 61, 68
Evidence Act 1995 (Cth) ss 118, 119Cases
Commissioner, Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501
Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49
REASONS FOR INTERLOCUTORY DECISION
Mark Hyman, Member
28 February 2013
The applicant, Ms Katherine von Stieglitz, has sought review of a decision by Comcare not to grant her compensation for an injury which she claims she suffered during employment at the High Court of Australia. Ms von Stieglitz’s employment at the High Court ceased in April 2008.
At Ms von Stieglitz’s request, the Tribunal issued a summons seeking relevant documents from the High Court. Officials of the High Court’s staff assembled documents in response to the summons, but rather than produce them to the Tribunal, sent the documents instead to DibbsBarker, the solicitors instructed in the matter by Comcare, under cover of a letter dated 10 January 2013. The High Court’s letter makes no mention of any possible claim for legal professional privilege, nor of the need for the documents to be forwarded to the Tribunal.
The summonsed documents were submitted to the Tribunal on 22 January 2013, along with the High Court’s letter of 10 January and a schedule claiming privilege for some of the documents. Ms von Stieglitz, in a letter dated 29 January 2013, objected to the claim of legal professional privilege. In the same letter Ms von Stieglitz asserted that she has been prejudiced by the path taken in producing the documents.
An interlocutory hearing was held before me to determine the issues of privilege. At that hearing Ms von Stieglitz represented her own interests with the support and assistance of her husband, Mr Shann O’Neill. Ms Carmen King of DibbsBarker represented the respondent. No representative for the High Court was in attendance.
Ms von Stieglitz argued that as the process followed in producing the documents was not that specified by the Tribunal, the claim for legal professional privilege had not been properly lodged, and questions of privilege were therefore not before the Tribunal.
Ms King argued that privilege rested not on the lodgement of a claim, but on the intrinsic properties of the documents in question, and that therefore, regardless of the process by which the proposed list of privileged documents had been prepared, a decision whether or not those documents were privileged could be made by inspecting the documents. Ms King pointed to sections 118 and 119 of the Evidence Act 1995 (Cth) (the Evidence Act), which set out the provisions related to exclusion of documents from being adduced as evidence before a court because of legal professional privilege. Acknowledging that the Tribunal was not bound by the Evidence Act, Ms King nevertheless suggested that the wording of those provisions supported her contention.
Issues
The issues before me are:
(a)whether a claim for legal professional privilege is currently before the Tribunal;
(b)if so, what must be done to take that claim forward; and
(c)if not, how such a claim might be made and determined.
Ms von Stieglitz’s argument that her interests in the hearing as a whole have been prejudiced is not one that I propose to address. That is a matter relevant to the substantive decision under review and best decided in that context. My involvement is limited to determining questions of privilege.
The statutory context
The Tribunal’s powers of summons derive from section 40 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). Subsections 40(1A),(1B), (1D) and (1E), which are the relevant subsections for present purposes, read as follows:
(1A) Subject to subsection (1B), for the purposes of the hearing of a proceeding before the Tribunal, the member presiding at the hearing, the Registrar, a District Registrar or a Deputy Registrar may summon a person to appear before the Tribunal at that hearing:
(a)to give evidence; or
(b)to give evidence and produce any books, documents or things in the possession, custody or control of the person or persons named in the summons that are mentioned in the summons; or
(c)to produce any books, documents or things in the possession, custody or control of the person or persons named in the summons that are mentioned in the summons.
(1B) A summons under subsection (1A) may require a person to appear at a directions hearing to produce books, documents or things instead of at the hearing before the Tribunal.
…
(1D) A presidential member, a senior member or an authorised member may give a party to a proceeding leave to inspect a document produced under a summons.
(1E) A person named in a summons for production of a book, document or thing may produce the book, document or thing at the Registry where the summons was issued before the date specified in the summons and, unless the Tribunal otherwise directs, is not required to attend the hearing concerned unless the person is also required to give evidence at the hearing concerned.
The reference to an ‘authorised member’ in subsection (1D) is to a member authorised by the President under section 59A of the AAT Act. That section allows the President to authorise members for the purposes of various provisions of the Act.
Section 61 of the Act provides that it is an offence for a person to fail to comply with a summons, without reasonable excuse. Section 68 provides that where a document is to be lodged with the Tribunal, it is to be lodged at a registry of the Tribunal.
The Act establishes a clear scheme for the summons process. A summons may aim to bring a witness before the Tribunal to give evidence, or to produce material evidence (in the form of books, documents or things), or both. Once material evidence is produced, leave to inspect it may be granted. If a person is to produce material evidence under summons but is not required otherwise to appear at a hearing, the person may submit the material before the specified date and need not attend the hearing. The Tribunal has developed detailed administrative procedures which give effect to and flesh out the summons provisions.
Consideration
It is common ground that the process followed in the current matter has departed from usual practice. Indeed it is abundantly clear that it has departed from the process set out in the AAT Act. For reasons that are not at all apparent, the High Court sent the summonsed documents not to the Tribunal but to the respondent’s solicitors, DibbsBarker. Rather than return them to the High Court or forward them immediately to the Tribunal, Ms King identified and listed in a schedule documents which, on her assertion, should be afforded legal professional privilege, only then forwarding all the documents to the Tribunal. Ms King acknowledged at the hearing that she had taken this step, under an informal arrangement with the High Court, although the documents that came to the Tribunal had no recognition of that arrangement, nor indeed any explicit recognition of the direct involvement of DibbsBarker in the preparation of the schedule.
Following the scheme set out in section 40, it is plain that when Ms King assembled her schedule of documents for which privilege was to be claimed, no leave to inspect the documents had yet been granted. It could not have been, as the Tribunal was yet to receive the summonsed documents. Ms King advised that she was not instructed by the High Court, and so she could not have been regarded as acting as the High Court’s agent, and continued to owe her undivided loyalties in this matter to Comcare. Thus the High Court has not made a claim for privilege. No leave to inspect the summonsed document having yet been granted, DibbsBarker could not legitimately lodge a claim for privilege, either on behalf of the respondent or on behalf of the High Court. I am compelled to conclude that no claim for legal professional privilege is before me.
It is not strictly necessary at this time that I consider Ms King’s argument that privilege attaches to documents through their intrinsic properties, and that the route by which a claim is made is immaterial. Nevertheless, as the argument may arise again later in this matter, it is perhaps best if I address it now.
The case law makes clear that, where a document is privileged, it is not in the document itself in which privilege lies, but in the communication reflected in that document: see for example Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49 (‘Esso’), where the majority (Gleeson CJ, Gaudron and Gummow JJ) noted at [36] that “… privilege, where it applies, attaches to communications, not to pieces of paper”. Legal professional privilege protects from disclosure two kinds of communications: confidential communications the dominant purpose of which is the seeking and giving of legal advice; and communications in documents whose dominant purpose is their intended use in current or anticipated legal proceedings. In both cases, the intention of the communication is centrally important.
In many cases the dominant purpose for which a document was generated will be abundantly clear on its face: a request for legal advice on a matter would, for example, readily be accorded privilege under normal circumstances. In other cases, however, the purpose for which a document was prepared may not be so apparent. It may be necessary for those claiming privilege to establish, for example, that a document was generated for the dominant purpose of litigation. That could make the involvement of information extraneous to the document itself necessary to determine the claim. In Esso the majority (Gleeson CJ, Gaudron and Gummow JJ) noted at [58], in debating the merits of the ‘sole purpose’ and ‘dominant purpose’ tests, that “… sole purpose appears to be a bright-line test, easily understood and capable of ready application. Many disputes as to its application could be resolved simply by examining the documents in question” (emphasis added). The implication, clearly enough, is that other disputes could not be resolved quite so simply (and although the majority endorsed the dominant purpose test in that case, the argument applies equally or with greater force). In Commissioner, Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 the majority of the High Court held that privilege could attach to a copy of a document even if the original was not itself privileged. The distinction between an original and a copy could be anything but clear on the face of the document.
It is in any case clear that privilege does not attach to a document in some automatic way. It must be claimed, and if not claimed, no privilege results. The exclusion of documents from discovery is contested in our adversarial system like any other aspect of a case. Claims are frequently contested, and the question whether the document or documents in question are privileged then becomes one that is argued by the parties. Although the Tribunal is a quasi-judicial body, similar considerations apply.
Ms King is not assisted by the wording of sections 118 and 119 of the Evidence Act. Both provisions, which relate respectively to privilege for legal advice and for documents prepared for litigation, make it clear that a decision by a court is dependent on ‘objection by a client’ to the adducing of evidence which would disclose the confidential communication in the documents. That is, a decision on the according of privilege to particular communications is triggered by a claim to that privilege by the client affected.
I therefore do not accept Ms King’s contention. It may be that in a case such as this the granting of privilege is normally a routine matter, and that led Ms King to assume that no harm would be done by taking what amounts to a short cut. But the Tribunal’s processes are set out in the governing statute and are there for a reason: they preserve the integrity of the documentary evidence and ensure that if any challenge to the evidence is to occur, it can be mounted at the appropriate stage of the proceedings.
It remains the case that some documents have been produced to the Tribunal. The next step is to grant leave for the inspection of those documents. I will issue orders giving the respondent first access to the summonsed documents in order for a schedule of documents over which legal professional privilege is claimed to be prepared and submitted. Alternatively, the High Court is able to submit such a claim.
Any privilege claim lodged by the respondent or the High Court pursuant to this decision and the access orders I will grant must specify sufficient detail to allow Ms von Stieglitz to decide whether or not she wishes to lodge an objection. That would include, for each document, the date of the document, the parties generating and receiving the correspondence, the file from which it has been abstracted, the nature or purpose of the document, and the basis of the claim of privilege (i.e. whether it is legal advice, or a document prepared for legal proceedings, or both).
Should Ms von Stieglitz object to any of a claim for privilege lodged on behalf of the High Court, I will deal with the arguments in a further directions hearing.
I certify that the preceding 23 (twenty -three) paragraphs are a true copy of the reasons for the decision herein of Mark Hyman, Member ..........................[sgd].....................................
Associate
Dated: 28 February 2013
Date of hearing 20 February 2013 Applicant In person Advocate for the Respondent Ms Carmen King Solicitors for the Respondent DibbsBarker