Australian Salaried Medical Officers' Federation (NSW) v Health Secretary in respect of the Western Sydney Local Health District

Industrial Relations Commission (NSW)|2021-09-13

EX Tempore DECISION

In these proceedings the Australian Salaried Medical Officers' Federation (NSW) ("ASMOF") represents Staff Specialists employed by the Health Secretary ("Secretary") within the Western Sydney Local Health District to perform work as radiologists at Westmead, Auburn and Blacktown Hospitals ("Radiologists").
On 5 November 2020, ASMOF, on behalf of the Radiologists, notified a dispute pursuant to s 130 of the Industrial Relations Act 1996 (NSW) ("the Act") relating to the purported termination with notice by the Secretary of long-standing arrangements between the Secretary and the Radiologists.
On 29 January 2021, I made a recommendation to preserve the status quo as at 3 August 2021 in Australian Salaried Medical Officers' Federation (NSW) v Health Secretary in respect of the Western Sydney Local Health District [2021] NSWIRComm 1002 ("ASMOF Status Quo Decision").
The background to the substantive dispute is set out in the ASMOF Status Quo Decision.
The hearing of the substantive dispute commenced on 18 May 2021 and continued on 27 May 2021. The matter was listed on 13 and 14 September 2021 to hear the balance of the evidence and oral submissions.
Between May 2021 and September 2021 issues arose between the parties about documents. These issues were brought before the Commission at recommencement of the hearing on 13 September 2021 for determination. Given the nature of the issues and ASMOF's claim that the determination of the issues would impact on the preparation of ASMOF's cross-examination of the Secretary's witnesses which was intended to occur that day, this decision was given with haste and ex tempore.
During the hearing of the substantive matter and the documentary matters, Ms Lucy Saunders of counsel appeared on behalf of ASMOF and the Secretary was represented by Ms Elizabeth Raper of Senior Counsel and Mr Dan Fuller of counsel. Mr Fuller made submissions on behalf of the Secretary in respect of the documentary matters dealt with in this decision.

Summonsed documents

ASMOF issued a summons to the Secretary to produce four of the documents referred to in in Annexure LC-1. These are documents are numbered 27, 28, 29 and 30 in Annexure LC-1 ("Summonsed Documents").
The Secretary resists production of documents 27, 28, 29 and the specified portions of document 30 on the basis of a claim for legal professional privilege. I accept that documents 27, 28, 29 and the specified portions of document 30 are privileged ("Privileged Summonsed Material").
ASMOF contends that the Secretary, on the basis of material already in evidence and other matters, has waived any privilege over the Privileged Summonsed Material.

Disclosed documents

After producing to ASMOF, in unredacted form, documents referred to in Annexure LC-1 other than the Privileged Summonsed Material, the Secretary claimed legal professional privilege over specific content of four of these documents produced, being documents numbered 32, 33, 34, and 43 in Annexure LC-1 ("Disclosed Documents"). The relevant portions over which privilege is asserted is highlighted in copies of the Disclosed Documents provided to the Commission.
I find that, with one exception, the material redacted by the Secretary over which she claims privilege in the Disclosed Documents is privileged. The exception is the second sentence of the fourth paragraph of document 33. I do not consider that the content of this sentence is privileged.
The Secretary seeks that the Commission direct, pursuant to s 162 of the Act that: 1. ASMOF and its counsel destroy any hard copies of the unredacted Disclosed Documents; 2. ASMOF and its counsel delete any electronic copies of the unredacted Disclosed Documents 3. ASMOF procure that any other person to whom the Disclosed Documents have been provided do as set out in (1) and (2) above; and 4. ASMOF is not permitted to use or rely upon the Disclosed Documents for any purpose relating to these proceedings.
ASMOF resists the orders sought by the Secretary on the bases of waiver and the unfairness it would now cause it if the Secretary were allowed to maintain privilege.

The law on Waiver

The parties agree that the principles on waiver established by Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303 ("ERA") and RinRim Pty Ltd v Deutsche Bank Australia Limited & Ors [2013] NSWSC 1654 ("RinRim") should be applied by the Commission.
In ERA, the High Court concluded that where a privileged document has been inadvertently produced during a court-ordered discovery, the court should ordinarily permit that mistake to be corrected and order the document's return: at [45];
However, relief may not be granted if (i) a party fails to act promptly or (ii) the party to whom the documents have been disclosed has been placed in a position, due to the disclosure, where it would be unfair to order the return of the documents. In making these observations, the High Court said that the ability of a party and its lawyers to put aside knowledge gained from documents received in error should not be viewed narrowly, and that such a view should be adopted in complex litigation unless the documents are of particular importance: at [49]
The High Court concluded that to establish an intention to claim privilege, it was sufficient to prove that the Expense Reduction Analysts Group Pty Ltd parties intended to claim privilege and that the reviewers were carrying out the Expense Reduction Analysts Group Pty Ltd parties' instructions: at [20].
The High Court found that it was unnecessary to establish that the reviewer formed an intention to claim privilege over each document at the time of its review. In ERA, their Honours concluded that an intention to claim privilege existed and that the listing of duplicates as both privileged and non-privileged simply proved that there were mistakes in the listing of documents: at [20]. Accordingly, their Honours concluded that there had been no waiver of privilege and further, the issue of waiver should never have been raised. In this regard, the inconsistent listing of documents as privileged and non-privileged did not suggest abandonment of privilege but rather, a mistake and confusion. This mistake and confusion was then clarified by the solicitors for the Expense Reduction Analysts Group Pty Ltd parties advising the opposing solicitors that privileged documents had been mistakenly produced: at [33] - [35].
ASMOF seeks to distinguish the circumstances in ERA from the circumstances here and says that the circumstances in ERA were: 1. an active awareness on the part of the other party that the documents were, or at least were likely, to be privileged - the reason the error was drawn to the disclosing party was because of enquiry by the disclosee; and 2. the source of the disclosure being genuine inadvertence, as documents which were intended to be marked as privileged but were not due to technological issues, in the context of a massive discovery process; and 3. no prejudice or unfairness to the other party; and 4. prompt action by the disclosing party to recover the documents.

Did the actions of the legal representatives for the Secretary in providing the Disclosed Documents to ASMOF result in a waiver of privilege?

ASMOF says that the circumstances of the Disclosed Documents are different from the facts in ERA in four ways.
ASMOF says first, that the earliest it became aware of any privilege claim was when it was notified by the Secretary hours before the return of summons on 8 September 2021. ASMOF says that the documents are not obviously privileged. No lawyer is involved in the making of the Disclosed Documents; they are not marked "confidential" and there is no suggestion these documents have been treated as such. The Disclosed Documents are of a kind, briefing notes and letters, which have been admitted into evidence in redacted and unredacted form throughout the proceedings.
I accept ASMOF's submission that privilege or waiver is difficult to identity for the non-claiming party, with no knowledge of how or why the documents were produced. However, I do not consider the fact that the privileged material was not obvious because of its file name or because it was not in the form of a letter of advice and that the privilege was not immediately identified by Ms Freeman, to lead to a necessary conclusion that privileged has been waived.
ASMOF says secondly that the evidence before the Commission does not disclose inadvertence; rather it discloses a change in position in that the Secretary thought the documents were not privileged, then for whatever reason changed her mind. ASMOF submits that this is a conscious decision affected by error, not inadvertence.
ASMOF says that the situation is different than if the Secretary had identified the Disclosed Documents as privileged, but these documents were mistakenly included in the file provided to ASMOF. ASMOF says that is not what happened; a deliberate and considered choice was made and reconsideration is not sufficient. I do not accept this submission from ASMOF is correct.
The evidence before the Commission on the question of in advertence is that of Liliana Freeman, a lawyer at the solicitors for the Secretary, Lander & Rogers. Ms Freeman swore two affidavits, the first on 7 September 2021 ("Health 13") and the second on 8 September 2021 ("Health 14") and was cross-examined.
Ms Freeman was admitted in December 2019 and has a restricted practicing certificate.
Ms Freeman's written evidence is that in preparing Ms Caswell's 5 May 2021 affidavit, Ms Freeman identified documents 28, 29 and 44 as privileged.
In her 10 September 2021 affidavit Ms Caswell refers to a mistake in her 5 May 2021 affidavit in which, by mistake, privilege was not claimed over the documents identified by Ms Freeman but rather over a non-existent document 72.
While under cross-examination, Ms Freeman conceded that when reviewing the documents referred to in LC-1 in August 2021, effectively undertaking a review of the documents for the first time, it was possible that she made a mistake in her assessment of whether certain documents were privileged in the sense that she did not look into the documents, in particular document 33, and she skimmed through documents and did not read them properly.
This was a concession properly given by a solicitor who acknowledges she does not have a clear memory of what she did. However, on the basis of Ms Freeman's written and oral evidence, I accept that Ms Freeman did not undertake a thorough review of the documents in or before May 2021 when she assisted with the preparation of Ms Caswell's affidavit or in early August 2021 when responding to Ms Skelding's email and, as a consequence, Ms Freeman did not identify certain documents as privileged, resulting in the Disclosed Documents being provided in unredacted form to ASMOF. I accept that this does not suggest abandonment of privilege but rather, a mistake by a junior solicitor for which responsibility should be shared with those who supervise her.
Ms Saunders submits, third that there is active prejudice to ASMOF. Ms Saunders submits that the prejudice to ASMOF is such that it cannot be cured by time and that it may result in her being unable to represent ASMOF.
I have considered the matters raised in paragraph 20 and 21 of Ms Saunders submissions deeply. I accept that cross-examination questions and bundles may have been prepared on the basis that the material would be included. However, Ms Saunders own submissions deal with steps that she has taken to mitigate this, and I consider that with sufficient time any questions or documents that must be exorcised from the cross-examination can be achieved.
As the High Court said at paragraph [49] in ERA- "No narrow view is likely to be taken of the ability of a party, or the party's lawyers to put knowledge gained to one side." I am of the view that ASMOF, represented by Ms Saunders, is able to put such knowledge to the side in these proceedings.
As to any delay, I accept that ASMOF wants the substantive matter brought to finality. However, it is relevant that there is a recommendation to maintain the status quo in place which in effect protects, until conclusion of the substantive proceedings, the conditions that are being sought by ASMOF on behalf of the Radiologists. Accordingly, I do not consider this is a matter in which I should depart from the High Court's guidance on mistake in ERA on the basis of prejudice to ASMOF.
Fourth, according to ASMOF, the Secretary has not acted promptly, and she has been relying on these documents for months. The Secretary allowed ASMOF to have access to the Disclosed Documents for weeks in circumstances where it would have been obvious that trial preparation was occurring. Ms Saunders asserts that no explanation has been provided as to why nothing was done about the Disclosed Documents until 8 September 2021. I agree with Ms Saunders that the Secretary's conduct in this aspect of the proceedings has been somewhat chaotic. However, I do not accept that there was unreasonable delay from the time the mistake in relation to the Disclosed Documents was discovered. Ms Freeman acted within a day of her discovery of her mistake.
There has been no waiver of the privilege material in the Disclosed Documents by virtue of the mistaken disclosure to ASMOF.
I deal with the assertion of waiver of privilege in respect of the Disclosed Documents by the disclosure of advice in Annexure LC-1 below.

Summonsed Documents

ASMOF asserts waiver in respect of the Summonsed Documents on four grounds.
ASMOF submits first, that Ms Caswell, in her affidavit of 5 May 2021 at paragraph 11, makes positive assertions about the content of each document (i.e. what they do not contain). ASMOF says that this assertion is inconsistent with maintaining privilege over the documents listed in the annexure. ASMOF says that it must be permitted to test that evidence. This is particularly so, according to ASMOF, given that Ms Caswell's most recent affidavit makes clear that her evidence in this respect was not complete.
Mr Fuller submits that the evidence that Ms Caswell gives in relation to the 72 or 68 documents in the annexures to her affidavits is very limited in nature. Ms Caswell deposes that she has not found any reference to the Secretary or the Ministry approving or authorising the radiology agreement.
I accept Mr Fuller's submission that out of the four documents that are the subject of the summons, only one of these is in the list of documents Ms Caswell found containing a reference to the Secretary or the Ministry of Health. That is the limit of the evidence Ms Caswell gives about this document. Mr Fuller says that the subject matter of the legal advice in that document simply could not illuminate the question of whether the document either contained a reference to the Secretary or the Ministry of Health or related in any way to the radiology agreements, which is the evidence that Ms Caswell is giving and there is no significant unfairness in preventing access to the document by ASMOF to test the evidence. I agree with the Secretary that for that reason, the reliance by the Secretary on Ms Caswell's affidavit evidence about these documents is not inconsistent with maintaining privilege over the subject matter of the legal advice within the documents.
ASMOF submits second, that the Secretary has already elected to place into evidence before the Commission unredacted related legal advice. She cannot retain privilege over the remainder of the advice; to do so risks giving the Commission an impression as to its nature that may not be accurate. This is the advice of Mr Kimber SC set out in Exhibit MC-1 to the affidavit of Melissa Collins affirmed 6 May 2021 and marked "Exhibit Health 8".
The redacted privileged material in document 30 predates the letter that is MC-1. Mr Fuller was unable to inform me whether the communication advice that are the subject of document 30 and MC-1 are the same advice and communication.
Given the dates and contents of the documents it is possible that document 30 and MC-1 do not refer to the same communication of advice. However, in the absence of a specific denial by the Secretary and any evidence on this question, the better inference is that they are the same and the disclosure of the content of the advice in the letter of 20 March 2009 is in my view, inconsistent with maintaining privilege over document 30. I will order the production of an unredacted copy of document 30. The disclosure of MC-1 is not in my view inconsistent with maintaining privilege over documents 27, 28 and 29.
Following my giving this decision orally, Ms Raper made a further claim for privilege in respect of the fourth-last sentence in the email dated 4/03/2009 11:28 am contained in document 43. I upheld that claim for privilege as this sentence refers to legal advice for which there has been no determination of waiver.
Returning briefly to the Disclosed Documents to deal with submissions by ASMOF regarding waiver arising from the Secretary electing to place related legal advice into evidence unredacted, I note that the meeting referred to in MC-1 is different from the meeting referred to in documents 32, 33, and 34.
Based on the dates and contents of document 43 and MC-1 and the reference in document 43 to Briefing Note 09/00360, which is MC-1, it is my view that the disclosure of MC-1 is inconsistent with maintaining privilege in respect of the advice from Max Kimber SC under the second redaction in document 43. I will order the production of document 43 with that redaction removed.
Third, according to ASMOF, the Secretary has for many years let information as to the nature of the legal advice disseminate through Health. According to ASMOF an example of this is Briefing Note 09/10611, provided to the Commission on 12 September 2021 as part of ASMOF's cross-examination bundle, which, according to Ms Saunders, was accessed almost a decade ago by a person with the lowest level security clearance available.
I agree with the Secretary that the difficulty with this submission by ASMOF is that there is no evidence as to the provenance of this document. If I accept Ms Saunders' submission from the bar table, that the document was obtained by Dr McIvor at some stage in the past while he was employed by the Secretary and within the Health District then the fact that Dr McIvor obtained a copy of this document as an employee of the Secretary does not amount to a waiver of privilege on the part of the Secretary.
Fourth, Ms Saunders submits that privilege has been waived by the disclosure of the Disclosed Documents. Given my findings in relation to the Disclosed Documents this ground largely falls away.
In the event that I am wrong about the Disclosed Documents, I deal with this point.
The only reference to Blake Dawson in the Disclosed Documents is in document 43. For reasons other than the mistaken disclosure I have found that privilege has been waived with respect to the advice from Max Kimber SC redacted in the final sentence of the third paragraph in document 43, not with respect to the sentence dealing with the advice from Blake Dawson.
If I am correct that the mistaken disclosure did not lead to waiver in respect to all of the privileged material in the Disclosed Documents, then to paraphrase the language of RinRim at [44], there has been no disclosure of the reason for Mr Kimber's recommendation in the second redacted portion that being the conclusion in the first redacted sentence.
If I am wrong about the question of mistake and there has been waiver as a consequence of the disclosure of the documents to ASMOF then it is necessary to consider the conclusion of Blake Dawson about the validity of the agreement which is redacted in the first sentence of the third paragraph and whether this brings about a waiver in respect of the other Summonsed Documents.
At paragraph [40] of RinRim, his Honour Justice Darke said: It may be accepted that the disclosure of the conclusion of a legal advice is capable of amounting to the disclosure of the substance of the advice. However, whether that is so depends upon the circumstances of the particular case at hand. It is necessary to consider the nature and extent of the disclosure as well as the nature and content of the advice in respect of which some disclosure has been made.
In this case, the disclosure of the conclusion of legal advice about the validity of the agreement and nothing more, if that did occur through the disclosure of the documents, does not waive privilege in the subject matter of the reasoning that led to that conclusion. Therefore, even if I am wrong about the Disclosed Documents and the privileged content of document 43 should be disclosed, privilege has not been waived in respect of documents 27, 28, and 29.
Consequently, waiver with respect to the content of document 43 is only relevant with respect to document 30 which I have already stated I would direct the Secretary produced to ASMOF unredacted.
While I have largely upheld the Secretary's claim to privilege in respect of the Disclosed Documents and the Summonsed Documents, I do not conclude that this is an example of where waiver should not have been raised. There are factual matters that distinguish this matter from checking the wrong box on discovery software and it was open to ASMOF to argue that this was a change of position and to challenge the Secretary's claim of inadvertence.

Directions

Following submissions of the parties on the form of the directions after handing down my decision orally, I made the following directions in chambers pursuant to s 162 of the Industrial Relations Act 1996: 1. In relation to any unredacted copies of the documents numbered 32, 33, 34 and 43 listed in Annexure LC-1 to the affidavit of Luci Caswell dated 5 May 2021 (Documents): 1. ASMOF and its counsel destroy any hard copies of the Documents; 2. ASMOF and its counsel delete any electronic copies of the Documents; 3. ASMOF procure that any other person to whom the Documents have been provided by representatives, employees or officers of ASMOF, or whom are in the possession of the Documents as a direct consequence of actions by representatives, employees or officers of ASMOF do as set out in (a) and (b) above; and 4. ASMOF not be permitted to use or rely upon the Documents for any purpose relating to this proceeding. 1. The Secretary is to provide ASMOF with: 1. a copy of document 30 unredacted save for the fourth-last sentence in the email dated 4/03/2009 11:28 am; 2. copies of documents 32 and 34 redacted in accordance with the Secretary's proposed redactions; and 3. copies of documents 33 and 43 redacted in accordance with this decision. Nichola Constant Chief Commissioner

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 September 2021

At a glance

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Judgment (8 paragraphs)

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