Von Stieglitz and Comcare (Compensation)
[2016] AATA 367
•1 June 2016
Von Stieglitz and Comcare (Compensation) [2016] AATA 367 (1 June 2016)
Division
GENERAL DIVISION
File Number(s)
2012/0675
Re
Katherine von Stieglitz
APPLICANT
And
Comcare
RESPONDENT
INTERLOCUTORY DECISION
Tribunal Deputy President Gary Humphries
Date 1 June 2016 Place Canberra 1. The application of 26 April 2016 to have Deputy President Humphries recuse himself is refused.
2. The nine documents produced on 2 December 2015 by the respondent attract legal professional privilege, which has not been waived by the respondent’s conduct.
..................................[sgd]......................................
Deputy President Gary Humphries
Catchwords
PRACTICE AND PROCEDURE – application for recusal on grounds of apprehended bias – application refused.
PRACTICE AND PROCEDURE – summons to produce documents – legal professional privilege attaching to certain documents – whether legal professional privilege waived.
Cases
Australian Securities and Investments Commission v Southcorp Ltd [2003] FCA 804
AWB Ltd v Cole (No 5) (2006) 155 FCR 30
Barnes v Commissioner of Taxation (2007) 242 ALR 601
Bennett v Chief Executive Officer of the Australian Customs Service (2004) 140 FCR 101
Dingwall v Commonwealth of Australia (1992) 39 FCR 521
Waterford v Commonwealth (1987) 163 CLR 54
REASONS FOR DECISION
Deputy President Gary Humphries
1 June 2016
Recusal
The applicant, Katherine von Stieglitz, was a Senior Court Reporter employed by the High Court of Australia until April 2008, when her employment was terminated. She subsequently brought two claims for workers compensation against Comcare in relation to her employment at the High Court. In relation to her second claim, initiated in 2012, the applicant applied to the Tribunal for review of a Comcare redetermination denying her compensation for an injury caused, she claimed, by the summary termination of her employment.
The applicant made an application on 2 March 2016 that I recuse myself from hearing of her various applications before the Tribunal. On 6 April 2016 I refused this application, and provided written reasons for doing so. On 26 April 2016 the applicant again made an application that I recuse myself in the same matters. This application was made during a hearing on that day to determine whether an order granting legal professional privilege over nine documents lodged by Comcare on 2 December 2015 should be revoked.
I declined to recuse myself on the further application. These are my reasons for doing so.
Some background is usefully set down. On 14 December 2015 I made a direction, pursuant to s 35(4) of the Administrative Appeals Tribunal Act 1975 (the Act), over those nine documents produced under summons by Comcare, the respondent in these proceedings. I directed that disclosure of the documents to the applicant be prohibited. The direction was made on the basis of a claim by Comcare that the documents, or some of them, were subject to legal professional privilege. This direction of 14 December 2015 was made on an interim basis until a hearing could be arranged to hear the parties on whether privilege indeed attached to the documents.
At an interlocutory hearing on 2 March 2016, set down to hear an application to lift the confidentiality order, the applicant made an application that I recuse myself from hearing the application on the ground of apprehended bias. She argued that the circumstances surrounding my making of the confidentiality order on 14 December 2015 were such as to give rise to a reasonable apprehension that I did not bring an impartial and unprejudiced mind to the issues at hand, and that therefore recusal was appropriate.
As I perceive it, there are three bases for the present application for recusal:
1) that, in reaching my original decision on recusal, I failed to take into account requests for extensions of time by Comcare in complying with the Tribunal’s summons to produce documents and a delay on the part of the Tribunal in providing a copy of Comcare’s claim for legal professional privilege to the applicant;
2) that I had discredited the Applicant and demonstrated personal animosity towards her in the tone and substance of the recusal decision of 6 April 2016; and
3) that, in reading paragraph 12 of the applicant’s written submissions to the Tribunal on 2 March 2016 and comparing it with paragraph 21 of my recusal decision, the fair-minded lay observer might reasonably apprehend that Deputy President Humphries is not an impartial and unprejudiced decision maker…
I will deal with these contentions serially.
Failure to take some matters into account
There are two responses to the applicant’s contention that certain relevant matters were not taken into account by the Tribunal in reaching its original decision on recusal. The first is to observe that the matters referred to – Comcare seeking extensions of time to comply with the applicant’s summons and a delay in giving the applicant a copy of Comcare’s written claim for privilege – were substantially irrelevant to the issues germane to the recusal decision. Essentially, the recusal decision was based on an assessment that the fair-minded and informed observer would not perceive bias on the Tribunal’s part as it made repeated attempts to bring the question of legal professional privilege over the nine documents to some kind of resolution. The question of delay (to which, in fact, both parties and the Tribunal itself contributed) was a secondary consideration to that of whether attempts were being made to have the matter properly determined.
The second response is to observe that, if the applicant believes the Tribunal has made an error in its recusal decision, the proper course open to her is to appeal that decision to the Federal Court, not to make a fresh application for recusal rehearsing the same arguments as were put to the Tribunal in the first application.
The tone and substance of the recusal decision
The applicant appears to believe that the terms of the recusal decision discredited her, and were in a form that exhibited personal animosity towards her. In doing so, she refers to two sentences in paragraph 20 of the decision:
In truth it has taken an inordinate length of time to bring the question of Comcare’s privilege claim before the Tribunal for determination; indeed it has still not reached that stage. But the delay must be laid at the feet of the applicant herself.
The Tribunal does not accept this characterisation of the decision. The applicant had argued that the Tribunal had delayed addressing her concerns about the granting of legal professional privilege over Comcare’s documents. The remarks referred to were a measured and proportionate response to that argument.
The fair-minded lay observer might apprehend bias
The applicant’s third contention is contained in the final sentence of her written submission:
If the fair-minded lay observer were to read paragraph 12 of the Applicant’s written submissions which were read onto the Tribunal record at the hearing on 2 March 2016, or be accurately informed of its contents, namely:
“The Applicant submits that, taking into account the relevant matters above and applying the relevant legal principles, a fair-minded lay observer might reasonably apprehend that Deputy President Humphries would not, on 2 March 2016, bring an impartial and unprejudiced mind to the resolution of the question of whether the 9 communications in Comcare’s 2 December 2015 claim for LPP are privileged communications” –
and then read paragraph 21 of Deputy President Humphries’ 6 April 2016 reasons for his decision not to recuse himself, or be accurately informed of its contents, namely:
“There seems to be little doubt that the applicant resolutely holds to the view that she has been deprived of her day in court, that is, her chance to demonstrate that she should be entitled to see the nine documents which Comcare claims attract legal professional privilege” –
the Applicant submits that the fair-minded lay observer might reasonably apprehend that Deputy President Humphries is not an impartial and unprejudiced decision-maker when making decisions in the Applicant’s Tribunal proceeding.
It seems to me that this contention is no more than a restatement of the argument that was put to the Tribunal on the original application for recusal. Its restatement in this way in the current application adds nothing to the arguments that were fully considered in the original recusal decision.
Accordingly the application of 26 April 2016, that I recuse myself from hearing the applicant’s matter, is refused.
Whether Comcare’s documents attract legal professional privilege
At the hearing on 26 April 2016 the Tribunal, after hearing and refusing the further application for recusal, went on to hear the parties on whether Comcare’s nine documents produced on 2 December 2015 in response to summons should remain subject to a confidentiality order under s 35(4) of the Administrative Appeals Tribunal Act 1975 on the basis that they attract legal professional privilege.
I determined at the hearing that they did attract legal professional privilege, and that they should therefore continue to be subject to a confidentiality order under s 35(4). These are my reasons for that decision.
In general terms, documents created for the dominant purpose of furnishing legal advice are documents which attract legal professional privilege. Such documents are protected from disclosure to another party in discovery processes, freedom of information applications and their equivalents. Though the Tribunal is not bound by the rules of evidence, the High Court has held that legal professional privilege attaches to legal advice furnished in relation to administrative decisions, including those before the Tribunal: Waterford v Commonwealth (1987) 163 CLR 54.
His Honour Young J in AWB Ltd v Cole (No 5) (2006) 155 FCR 30 helpfully outlined twelve principles governing considerations of legal professional privilege (at [44]). Of those principles, the following seem most relevant to the circumstances of this application:
(1) The party claiming privilege carries the onus of proving that the communication was undertaken, or the document was brought into existence, for the dominant purpose of giving or obtaining legal advice. The onus might be discharged by evidence as to the circumstances and context in which the communications occurred or the documents were brought into existence, or by evidence as to the purposes of the person who made the communication, or authored the document, or procured its creation. It might also be discharged by reference to the nature of the documents, supported by argument or submissions…
(2) The purpose for which a document is brought into existence is a question of fact that must be determined objectively. Evidence of the intention of the document’s maker, or of the person who authorised or procured it, is not necessarily conclusive. It may be necessary to examine the evidence concerning the purpose of other persons involved in the hierarchy of decision-making or consultation that led to the creation of the document and its subsequent communication…
(3) The existence of legal professional privilege is not established merely by the use of verbal formula: Grant v Downs at 689 per Stephen, Mason and Murphy JJ. Nor is a claim of privilege established by mere assertion that privilege applies to particular communications or that communications are undertaken for the purpose of obtaining or giving ‘legal advice’: National Crime Authority v S (1991) 29 FCR 203 at 211-212 per Lockhart J; Candacal Pty Ltd v Industry Research & Development Board [2005] FCA 649; (2005) 223 ALR 284 (‘Candacal’) at 298 [70]; Seven Network Limited v News Limited [2005] FCA 142 at [6]-[8]. If assertions of that kind are received in evidence in support of the privilege claim, their conclusionary nature can leave unclear what advice was really being sought. There will be cases in which a claim of privilege will not be sustainable in the absence of evidence identifying the circumstances in which the relevant communication took place and the topics to which the instructions or advice were directed…
(4) Where communications take place between a client and his or her independent legal advisers, or between a client’s in-house lawyers and those legal advisers, it may be appropriate to assume that legitimate legal advice was being sought, absent any contrary indications: Kennedy v Wallace [2004] FCA 332; (2004) 208 ALR 424 at 442 [65] per Gyles J; affirmed on appeal, Kennedy v Wallace at 191-192 [23]-[27] per Black CJ and Emmett J. In Kennedy v Wallace, Black CJ and Emmett J inclined to the view that in the ordinary case of a client consulting a lawyer about a legal problem in uncontroversial circumstances, proof of those facts alone will provide a sufficient basis for a conclusion that legitimate legal advice is being sought or given.
(5) A ‘dominant purpose’ is one that predominates over other purposes; it is the prevailing or paramount purpose…
(6) An appropriate starting point when applying the dominant purpose test is to ask what was the intended use or uses of the document which accounted for it being brought into existence…
(7) The concept of legal advice is fairly wide. It extends to professional advice as to what a party should prudently or sensibly do in the relevant legal context; but it does not extend to advice that is purely commercial or of a public relations character…
(8) Legal professional privilege protects the disclosure of documents that record legal work carried out by the lawyer for the benefit of the client, such as research memoranda, collations and summaries of documents, chronologies and the like, whether or not they are actually provided to the client…
(9) …
(10) Legal professional privilege is capable of attaching to communications between a salaried legal adviser and his or her employer, provided that the legal adviser is consulted in a professional capacity in relation to a professional matter and the communications are made in confidence and arise from the relationship of lawyer and client: Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54 at 96 per Dawson J; see also Deane J at 79-82. Some cases have added a requirement that the lawyer who provided the advice must be admitted to practice: see Dawson J in Waterford at 96; GSA Industries (Aust) Pty Ltd v Constable [2001] QSC 180; (2002) 2 Qd R 146 at 150; Glengallan Investments Pty Ltd v Arthur Andersen [2001] QCA 115; (2002) 1 Qd R 233 at 245. However, in Commonwealth v Vance [2005] ACTCA 35; (2005) 158 ACTR 47, the Full Court (Gray, Connolly and Tamberlin JJ) did not regard the possession of a current practising certificate as an essential precondition to the availability of legal professional privilege: at [23]–[35]. The same view was taken by Lee J in Candacal at 303 [99], by Gillard J in Australian Hospital Care (Pindara) Pty Ltd v Duggan [1999] VSC 131 at [111], and by Downes J in Re McKinnon and Secretary, Department of Foreign Affairs and Trade [2004] AATA 1365; (2004) 86 ALD 780 at 785 [51].
(11) …
(12) The Court has power to examine documents over which legal professional privilege is claimed. Where there is a disputed claim, the High Court has said that the court should not be hesitant to exercise such a power: Esso; see also Grant v Downs at 689. If the power is exercised, the court will need to recognise that it does not have the benefit of submissions or evidence that might place the document in its proper context. The essential purpose of such an inspection is to determine whether, on its face, the nature and content of the document supports the claim for legal professional privilege. (Some cases and citations omitted.)
The Federal Court in Barnes v Commissioner of Taxation (2007) 242 ALR 601 at [8] commented on what would kind of documents would not be protected by such privilege:
If the advice given by a legal adviser is predominately for a financial, personal or commercial purpose, as opposed to a purpose of seeking legal services or assistance, it will not be protected: Three Rivers District Council v Governor and Company of the Bank of England (No 6) [2004] UKHL 48; [2005] 1 AC 610.
In Waterford the High Court considered the circumstances when advice touching on policy might attract privilege. Brennan J commented:
I would agree that, if a communication were brought into existence for a purpose of seeking or giving advice as to the government's policy in administering the Act, as distinct from the policy of the Act itself, the communication would not be privileged.[1]
In similar vein, Dawson J held:
That is, of course, policy advice concerned with the administration of the Act rather than the conduct of the particular proceedings and for that reason does not, in my view, constitute legal advice which attracts legal professional privilege.[2]
[1] Waterford v Commonwealth (1987) 163 CLR 54 at 77.
[2] Waterford v Commonwealth (1987) 163 CLR 54 at 104.
At the hearing, Comcare affirmed that eight of the documents subject to the claim of privilege were internal communications between Comcare’s in-house lawyers and its claims personnel. The final document was a file note recording legal advice given by a Comcare lawyer to another member of Comcare staff dealing with the applicant’s claim. All nine documents were created for the dominant purpose of providing legal advice, it was submitted. If this characterisation is correct, the documents would prima facie attract legal professional privilege pursuant to Young J’s principles in AWB Ltd v Cole (No 5).
In response, the applicant advanced two propositions:
1) the communications between Mr Mee, a senior investigator at Comcare, and Comcare’s lawyers were created for a commercial purpose in that they were contained within a file marked commercial-in-confidence created on 2 January 2008; and
2) other file notes – over which privilege was not claimed but which were created contemporaneously with those that were – suggest that the claimed documents were created to advance an investigation conducted under the OHS Act, and thus should properly be considered as giving advice as to Comcare’s policy in administering of the OHS Act, i.e. not for the conduct of these proceedings.
Comcare offered the view that labelling files commercial-in-confidence was no more than an administrative convenience, a practice not determinative of the correct legal characterisation of each of its contents. The Tribunal accepts this contention.
The applicant, of course, suffers the disadvantage in making her submissions that she has not seen the documents in question. It would be unsurprising, therefore, that her submissions might be based at least in part on supposition. The Tribunal, conversely, has seen the documents, and is able to form a view of their purpose from what they appear to do.
The applicant appeared, during the hearing, to be suggesting that documents offering advice in relation to an investigation under Occupational Health & Safety legislation could not also be legal advice in relation to prospective litigation. The Tribunal does not accept that one object is exclusive of the other. It is not a matter of determining what is the dominant purpose – advice re an investigation or advice re litigation – since one could reasonably suppose that an investigation might ultimately become part and parcel of litigation involving the matters investigated.
Having examined the documents in question, the Tribunal finds that they do appear, on their face, to have been created for the dominant purpose of giving legal advice in relation to prospective litigation between the applicant and Comcare. Conversely, it is evident on their face that none of the documents were brought into existence for a purpose of seeking or giving advice as to the government’s policy in administering the Act (per Brennan J in Waterford), nor were they created predominantly for a financial, personal or commercial purpose (per the Federal Court in Barnes). As such they clearly attract legal professional privilege. It follows that the Tribunal’s confidentiality order over them should subsist.
Whether the privilege has been waived
Comcare conceded that the documents over which it claimed privilege related to the 2008 Investigation Summary Report of Investigation 3833 of Mr Mee. The applicant submitted that these documents were documents which underpinned or influenced the contents of Mr Mee’s investigation report and, since the investigation report had been produced for forensic advantage by Comcare in these proceedings, they were documents over which legal professional privilege had been impliedly waived.
The applicant cited a number of authorities in support of this argument, in particular the principles enunciated by Lindgren J in Australian Securities and Investments Commission v Southcorp Ltd [2003] FCA 804. Those principles were (at [21]):
1. Ordinarily the confidential briefing or instructing by a prospective litigant's lawyers of an expert to provide a report of his or her opinion to be used in the anticipated litigation attracts client legal privilege: cf Wheeler v Le Marchant (1881) 17 ChD 675; Trade Practices Commission v Sterling [1979] FCA 33; (1979) 36 FLR 244 at 246; Interchase Corporation Ltd (in liq) v Grosvenor Hill (Queensland) Pty Ltd (No 1) [1999] 1 Qd R 141 ("Interchase") at 151 per Pincus JA, at 160 per Thomas J.
2. Copies of documents, whether the originals are privileged or not, where the copies were made for the purpose of forming part of confidential communications between the client's lawyers and the expert witness, ordinarily attract the privilege: Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 ("Propend"); Interchase, per Pincus JA; Spassked Pty Ltd v Commissioner of Taxation (No 4) [2002] FCA 491; (2002) 50 ATR 70 at [17].
3. Documents generated unilaterally by the expert witness, such as working notes, field notes, and the witness's own drafts of his or her report, do not attract privilege because they are not in the nature of, and would not expose, communications: cf Interchase at 161-162 per Thomas J.
4. Ordinarily disclosure of the expert's report for the purpose of reliance on it in the litigation will result in an implied waiver of the privilege in respect of the brief or instructions or documents referred to in (1) and (2) above, at least if the appropriate inference to be drawn is that they were used in a way that could be said to influence the content of the report, because, in these circumstances, it would be unfair for the client to rely on the report without disclosure of the brief, instructions or documents; cf Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475 at 481 per Gibbs CJ, 487-488 per Mason and Brennan JJ, 492-493 per Deane J, 497-498 per Dawson J; Goldberg v Ng [1995] HCA 39; (1995) 185 CLR 83 at 98 per Deane, Dawson and Gaudron JJ, 109 per Toohey J; Instant Colour Pty Ltd v Canon Australia Pty Ltd [1995] FCA 870; Australian Competition and Consumer Commission v Lux Pty Ltd [2003] FCA 89 ("ACCC v Lux") at [46].
5. Similarly, privilege cannot be maintained in respect of documents used by an expert to form an opinion or write a report, regardless of how the expert came by the documents; Interchase at 148-150 per Pincus JA, at 161 per Thomas J.
6. It may be difficult to establish at an early stage whether documents which were before an expert witness influenced the content of his or her report, in the absence of any reference to them in the report; cf Dingwall v Commonwealth of Australia [1992] FCA 627; (1992) 39 FCR 521; Tirango Nominees Pty Ltd v Dairy Vale Foods Ltd (No 2) (1998) 83 FCR 397 at 400; ACCC v Lux at [46].
The applicant referred also to AWB Ltd v Cole (No 5) [2006] FCA 1234 and Lovegrove Turf Services Pty Ltd and Anor v Minister for Education [2003] WASC 213. She contended that the import of these authorities was that the nine claimed documents were either:
(a) documents generated unilaterally by Mr Mee, including his own drafts or his report, and therefore do not attract privilege: see Interchase Corporation Ltd (in liq) v Grosvenor Hill (Queensland) Pty Ltd (No 1) [1991] 1 Qd R 141 at 161-162 per Thomas J;
(b) documents used by Mr Mee to form an opinion or write a report, and therefore privilege cannot be maintained: see Interchase at 148-150 per Pincus JA, at 161 per Thomas J; or
(c) documents and information which were taken into account, or which otherwise underpinned or influenced the content of Mr Mee’s Investigation 3833 Summary Report dated 28 October 2008, which Comcare filed in the Tribunal on 28 June 2012 as a “relevant document” in proceeding 2012/0675, and served on the Applicant, and therefore privilege has been waived.
Comcare responded by pointing out that most of the cases cited were about whether documents used by expert witnesses attracted privilege; Comcare contended that Mr Mee was not an expert witness in the sense referred to in these authorities. It was noted that Mr Mee set out in his investigation report all the documents and interviews on which his report was based; apart from one reference to a discussion with Mr David Morters, an employed legal adviser at Comcare, the vast majority of the other sources had been made available to the applicant. There was nothing in the documents over which Comcare claimed privilege, it was asserted, that were significant in the preparation of Mr Mee’s investigation report.
I am not sure that Mr Mee is appropriately characterised as an expert witness in the sense used in these authorities, but even if he could be so regarded I think that the nine documents must be distinguished from the kind of documents which were being discussed in those authorities. The latter could be broadly described as evidentiary documents, on which the substantive opinion of the expert may have been based. Foster J in Dingwall, in commenting on what is necessary for documents to lose their privileged status, said (at 524):
It requires, certainly, that there be an indication that the documents were used in the preparation of the evidentiary document in a way that could be said to influence the content of that document.
The issue before the Federal Court in AWB Ltd v Cole (No 5) was whether the appellant, by disclosing the gist or substance (or in some cases the entirety) of legal advices obtained as a result of investigations had waived privilege in those advices. In finding that it had, Young J held:
Documents brought into existence in the course of a lawyer’s factual investigation are, prima facie, capable of attracting legal professional privilege where the investigation is being undertaken for the dominant purpose of providing legal advice. If the client voluntarily discloses the gist or substance of the legal advice that is founded upon such investigations, the rationale for according privilege to the investigative material will have disappeared.[3]
This position can be distinguished from the present circumstances, where the respondent has not sought to disclose the gist or substance of the legal advice it received. If the respondent has used the advice to settle the terms of the investigation report which it later disclosed, it could not said to have disclosed the legal advice per se, nor to have used it as the basis for the content (as opposed to the form) of an evidentiary document of the kind referred to in Dingwall.
[3] AWB Ltd v Cole (No 5) (2006) 155 FCR 30 at [202].
In Bennett v Chief Executive Officer of the Australian Customs Service (2004) 140 FCR 101 Gyles J said:
The test looks to inconsistency between the disclosure that has been made by the client on the one hand and the purpose of confidentiality that underpins legal professional privilege on the other. It is not a matter simply of applying general notions of fairness as assessed by the individual judge. The authorities to which I have referred show that it is well established that for a client to deploy the substance or effect of legal advice for forensic or commercial purposes is inconsistent with the maintenance of the confidentiality that attracts legal professional privilege.[4]
[4] Bennett v Chief Executive Officer of the Australian Customs Service (2004) 140 FCR 101 at [68].
As in AWB Ltd v Cole (No 5), a party in Bennett had used the thrust of its advice as a forensic weapon in a dispute; similar circumstances arose in Australian Unity Health Ltd v Private Health Insurance Administration Council [1999] FCA 1770. This line of authorities makes clear that such use (deployment) of legal advice will strip the advice of its privilege, but the line does not embrace legal advice used purely to settle documents in proceedings. Indeed, to assert that the publication of a document on which legal advice has been sought deprives it of legal professional privilege would lead to unfortunate consequences. Applying this logic, lawyer/client correspondence used to settle pleadings in a court or Tribunal would be stripped of its customary confidentiality; it is unlikely that the courts in these decisions intended such an outcome.
The same authorities apply the principle that a party’s witness should not be able to rely – in forming an opinion on the substantive issues in litigation – on material to which the other party cannot have access. Equally, this consideration has not been held to require the disclosure of communications designed purely to frame and articulate a party’s legal position. The nine documents in the present case seem, on examination, to fall very squarely into the latter category.
Accordingly, the Tribunal does not consider that legal professional privilege in the nine documents lodged by Comcare has been waived. The confidentiality order under s 35(4) made on 14 December 2015 (varied 9 February 2016) will not, in those circumstances, be revoked.
I certify that the preceding 35 (thirty -five) paragraphs are a true copy of the reasons for the decision herein of Deputy President Gary Humphries .................................[sgd].......................................
Associate
Dated 1 June 2016
Date of hearing 26 April 2016 Applicant In person Solicitors for the Respondent McInnes Wilson Lawyers
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