SZF is 75 years old and lives in NSW. He has a son, DAF and a daughter, DYD.
SZF and TBN have represented themselves as partners in proceedings thus far before the Tribunal, though DAF and DYD have questioned that their relationship is ongoing.
On 19 September 2018, SZF appointed TBN as his enduring guardian and as his attorney under an enduring power of attorney.
On 22 October 2018, the Tribunal received applications from DAF seeking the appointment of a guardian and a financial manage for SZF.
On 13 November 2018, the Tribunal made directions in respect of the applications and listed the matters for further directions on 14 February 2019.
On 24 December 2018, the Tribunal received applications from DAF seeking review of the enduring guardianship appointment and the power of attorney made by SZF on 19 September 2018.
On 14 January 2019, the Tribunal approved the issuing of summonses to Katelin Whitely of Bestic Law and to the Proper Officer, Medical Records Department of a public hospital.
On 29 January 2019, the Tribunal made an access order relating to the medical records produced under summons.
On 14 February 2019, at a Directions hearing, the Tribunal consented to SZF being legally represented, made further directions and listed the matter for further directions on 13 March 2019. On that date the Tribunal noted that a claim of Client Legal Privilege had been made on behalf of SZF in relation to the documents produced under summons by Katelin Whitley of Bestic Law.
On 21 February 2019, the Tribunal approved applications for summonses to be issued to Dr Z and a financial institution.
On 1 March 2019, the Tribunal made an order in relation to the documents produced under summons by Dr Z and ordered that the issue of access was to be determined by the Tribunal at a Directions hearing on 13 March 2019.
On 13 March 2019 at a Directions hearing, the Tribunal allowed DAF, DYD and TBN to be legally represented and listed the matter for further Directions on 18 April 2019.
On 9 May 2019, the Tribunal received a request from Mr Andrew Cameron of Fox & Staniland, solicitors, on behalf of DAF and DYD, seeking the reasons for the Senior Member's decision to recuse herself from hearing the applications and to decline to order that SZF be separately represented in respect of the application. These reasons have been provided.
On 24 May 2019, the Tribunal received a request from Fox & Staniland, solicitors, on behalf of DAF and DYD for Reasons for the Decision of the Tribunal dated 21 May 2019 to refuse the applicants access to the material provided under summons. I am advised that that application was overlooked by the Registry and on 29 July 2019 a second request was received. These Reasons for Decision are in response to that application.
[2]
The Material provided under summons
The material encompassed by the order made on 24 May 2019 includes copies of contemporaneous handwritten notes made by Katelin Whitley, of Bestic Law in respect of discussions had with SZF and TBN and typed representations of those notes. There are two sets of documents, one being a version in which sections are redacted.
On behalf of SZF, Mr Morrison has objected to access being provided in respect of those documents. The objection is based on a claim that the documents are privileged as documents provided in the way of legal advice and are otherwise confidential.
[3]
Legislation regarding evidence
Section 38 of the Civil and Administrative Tribunal Act 2013 (NSW) provides relevantly that:
38 Procedure of Tribunal generally
(1) The Tribunal may determine its own procedure in relation to any matter for which this Act or the procedural rules do not otherwise make provision.
(2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.
(3) Despite subsection (2):
(a) the Tribunal must observe the rules of evidence in:
(i) proceedings in exercise of its enforcement jurisdiction and
(ii) proceedings for the imposition by the Tribunal of a civil penalty in exercise of its general jurisdiction, and
(b) section 128 (Privilege in respect of self-incrimination in other proceedings) of the Evidence Act 1995 is taken to apply to evidence given in proceedings in the Tribunal even when the Tribunal is not required to apply the rules of evidence in those proceedings.
Section 67 of the of the Civil and Administrative Tribunal Act provides that:
67 Privileged documents
(1) Nothing in this Act requires the disclosure of a document if the Tribunal or President is satisfied that evidence of the document could not be adduced in proceedings before a NSW court by reason of the operation of any of the following provisions of the Evidence Act 1995:
(a) section 9 (Application of common law and equity), but only to the extent that it preserves any privilege against the adducing of evidence,
(b) section 10 (Parliamentary privilege preserved),
(c) Part 3.10 (Privileges) of Chapter 3.
(2) In this section:
disclosure of a document includes the following:
(a) the provision of copies of the document,
(b) the granting of access to the document,
(c) the disclosure of the contents of the document.
document includes a part of a document.
NSW court has the same meaning as in the Evidence Act 1995.
For the purposes of this matter, ss 9 and 10 of the Evidence Act 1995 (NSW) are not relevant.
Part 3.10 of the Evidence Act includes the following provisions in Division 1 -
117 Definitions
…
confidential communication means a communication made in such circumstances that, when it was made:
(a) the person who made it; or
(b) the person to whom it was made; was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law.
confidential document means a document prepared in such circumstances that, when it was prepared:
(a) the person who prepared it; or
(b) the person for whom it was prepared; was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law.
…
118 Legal Advice
Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of:
(a) a confidential communication made between the client and a lawyer; or
(b) a confidential communication made between 2 or more lawyers acting for the client; or
(c) the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person;
for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.
119 Litigation
Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of:
(a) a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made; or
(b) the contents of a confidential document (whether delivered or not) that was prepared for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party.
Part 3.10 of the Evidence Act includes the following provisions in Division 1A Professional confidential relationship privilege:
126B Exclusion of evidence of protected confidences
(1) The court may direct that evidence not be adduced in a proceeding if the court finds that adducing it would disclose:
(a) a protected confidence, or
(b) the contents of a document recording a protected confidence, or
(c) protected identity information.
(2) The court may give such a direction:
(a) on its own initiative, or
(b) on the application of the protected confider or confidant concerned (whether or not either is a party).
(3) The court must give such a direction if it is satisfied that:
(a) it is likely that harm would or might be caused (whether directly or indirectly) to a protected confider if the evidence is adduced, and
(b) the nature and extent of the harm outweighs the desirability of the evidence being given.
(4) Without limiting the matters that the court may take into account for the purposes of this section, it is to take into account the following matters:
(a) the probative value of the evidence in the proceeding,
(b) the importance of the evidence in the proceeding,
(c) the nature and gravity of the relevant offence, cause of action or defence and the nature of the subject matter of the proceeding,
(d) the availability of any other evidence concerning the matters to which the protected confidence or protected identity information relates,
(e) the likely effect of adducing evidence of the protected confidence or protected identity information, including the likelihood of harm, and the nature and extent of harm that would be caused to the protected confider,
(f) the means (including any ancillary orders that may be made under section 126E) available to the court to limit the harm or extent of the harm that is likely to be caused if evidence of the protected confidence or the protected identity information is disclosed,
(g) if the proceeding is a criminal proceeding--whether the party seeking to adduce evidence of the protected confidence or protected identity information is a defendant or the prosecutor,
(h) whether the substance of the protected confidence or the protected identity information has already been disclosed by the protected confider or any other person,
(i) the public interest in preserving the confidentiality of protected confidences,
(j) the public interest in preserving the confidentiality of protected identity information.
…
[4]
Submissions on behalf of the applicants
On behalf of the applicants it was submitted that:
in the event that any document produced in answer to the summonses issued by the Tribunal was prepared for the dominant purpose of [SZF] being provided with legal advice, or him being provided with legal services in relation to anticipated or pending legal proceedings, subject to the issue of waiver … he will be entitled to maintain a claim of privilege over the documents and will not be obliged to disclose these in the course of the hearing of the current applications.
It was submitted that the documents were not provided as legal services in relation to pending legal proceedings and nor do they disclose legal advice. In support of the latter submission the following was submitted:
… documents recording instructions taken by the solicitor from [SZF] in relation to the making of the instrument purporting to appoint [TBN] as his enduring attorney, documents recording instructions given to the solicitor by [SZF] concerning the making of the instrument purporting to appoint her as his enduring guardian, and file notes and other documents prepared in the course these attendances, or documents prepared by the solicitor recording steps taken by him for the purpose of the solicitor satisfying himself that his client had capacity to appoint an enduring attorney and an enduring guardian at the relevant time are not documents which were prepared for the purpose of the solicitor providing legal advice to his client.
In support of the submission noted above the applicants' submissions refer the Tribunal to the matter of Tickell v Trifleska (1990) 24 NSWLR 548 (the Tickell matter). This matter involved a claim of privilege in relation to instructions given for the making of a will. In that matter, Rogers CJ held that:
Instructions to prepare a will do not necessarily contain an implied request for advice on what is the proper form of the will. Although on the facts of a given case this implication may arise there no such facts in this case; and
ln any event, the purpose of such instructions is to bring into existence a will as the record of the testator's testamentary dispositions and to serve as a document which will eventually obtain a grant of probate. In these circumstances it could not be said that the instructions would be subject to legal professional privilege as they had not been brought into existence for the sole purpose of giving legal advice.
On behalf of the applicant my attention was also drawn to the matter of Urquhart v Lanham [2003] NSWSC 109, (the Urquhart matter) in which Campbell, J considered whether he should follow the decision of Rogers CJ in the Tickell matter, taking into account the "dominant purpose" test. His Honour said:
l am not persuaded that the inherent nature of the will, or its content was such to show that there had been any dominant purpose of requesting legal advice, or giving of legal advice in the production and execution of the will. Its existence is equally consistent with Mr Angliss having a dominant purpose calling into existence a document which would dispose of property after death. Hence, the rule is not the subject of legal professional privilege.
Attention was also drawn to the matter of Griffiths v German [2017] NSWSC 1392 at [20] and [21] in which Parker J was not satisfied that communications in respect of the making of a will were necessarily privileged and in which reference is made to s 121 of the Evidence Act and in particular to the provision that the relevant Division of the Act does not prevent the adducing of evidence relevant to a question concerning the intentions, or competence of the testator.
On behalf of the applicants, it was submitted that:
the position with documents prepared in the course of the solicitor receiving instructions to prepare the relevant instruments is analogous to the position in relation to instructions for preparation of a will. The documents were not brought into existence for the dominant purpose of the solicitor providing legal advice. They were prepared in course of the solicitor receiving instructions to prepare the purported instrument appointing [TBN] as attorney for the purpose of conferring on her as attorney, the authority to do, on behalf of [SZF], anything that he may lawfully authorise an attorney to do (i.e. s 9(1) of the Powers of Attorney Act 2003).
Similarly, any documents relating to instructions given by [SZF] to the solicitor were prepared in the course of the solicitor's preparation of the instrument purporting to appoint [TBN] as his enduring guardian was for [SZF] to appoint an enduring guardian in order to authorise the guardian to exercise various functions on his behalf including deciding where he to live, deciding the health care he is to receive, deciding other personal services he is to receive, giving consent to the carrying out of medical or dental treatment on him and any other function specified in the instrument (i.e. s 6E of the Guardianship Act 1987) (sic). The documents were not brought into existence in the course of the solicitor providing legal advice.
In respect of the confidentiality aspect of the material it was submitted on behalf of the applicant that the authorities establish that the existence of some confidential material contained within documents is not a bar to the provision of the documents and I was referred to the outline of relevant matters taken into consideration by Brereton J in the matter of NAK Australia Pty Ltd v Starkey Consulting Pty Ltd & Ors [2008) NSWSC 1136, in relation to the discovery of documents.
In respect of the relevance of the summonsed material to the matters before the Tribunal, I was referred to the matter in Bellamy v Bellamy [2018] NSWSC 534 in which Parker J was of the view that the Tribunal owed no duty to afford procedural fairness to a daughter-applicant in proceedings similar to the current proceedings. However, in circumstances where the Tribunal has an obligation imposed on it under the relevant legislation to deal with the application before it by making enquiries into the question of capability as best as it can, and where it is the responsibility of the Tribunal to decide how best to go about that task it is required to undertake, it was open for the Tribunal to conclude that it would have been assisted by hearing the daughter's submissions in respect of the material to which it was sought to deny her access.
On behalf of the applicants it was submitted that:
Essentially, in Bellamy, Parker J held that it is the responsibility of the Tribunal in each case to determine whether it will be assisted in the course of dealing with the issues arising for determination, by allowing access to documents produced in the proceedings to the parties, for the purpose of allowing the parties to provide submissions to assist the Tribunal in determining the issues it is required to determine in the circumstances of arising in each application.
In the current applications, when having regard to the close relationship which has existed between [SZF] and his children over their lifetime, and the fact that [DAF] and [DYD] have always had a close relationship with their father and intimately involved in his affairs over lengthy periods including in the period leading up to [SZF] attending on the solicitor to prepare the documents purporting to appoint [TBN] as his enduring attorney and enduring guardian, and where the two children have extensive knowledge of their father's personal and business dealings, clearly it will be appropriate for the Tribunal to grant them access to the documents produced in answer to the summonses to allow them to be in an informed position to provide assistance to the Tribunal on the issues which the Tribunal will need to give consideration to in the course of hearing the applications.
It was further submitted that SZF had impliedly waived any claim of privilege because of the nature of the matters before the Tribunal and that, further, it is necessary for the Tribunal to access the material in question to properly reach a decision on the matters before the Tribunal.
[5]
Submissions on behalf of SZF
On behalf of SZF, it was submitted that in the absence of authorities regarding access to instructions for the making of enduring powers of attorney, some comparison is appropriately drawn to the position in relation to instructions regarding making a will. As indicated in the Tickell matter, instructions given to a solicitor for the preparation of a will and the will itself have not usually been found to attract legal professional privilege. However, it was submitted that instructions to a solicitor with respect to a will may be distinguished from instructions to make a Power of Attorney or Enduring for reasons including:
1. Probate litigation is interest litigation. No person (or beneficiary) has any relevant interest in a will until the relevant testator has died and therefore, practically, it would not be possible for a person named in a will to seek to obtain access to will instructions unless or until the testator has died (unless, possibly, that material was sought for a purpose other than advancing some interest arising under the will)
2. Privilege is expressly abrogated with respect to a deceased person pursuant to s 121 of the Evidence Act. This reflects the reality that, in probate litigation, the nature and quality of instructions to a solicitor are typically a critical question in assessing the validity of the document. Whilst the same might be said about instructions in respect of the making of an enduring power of attorney, no such express abrogation occurs in statures regarding powers of attorney.
It was also submitted that it is "entirely conceivable, and even likely", that instructions for a power of attorney or enduring guardianship may be protected under legal advice privilege by satisfying the dominant purpose test. The relevant legal advice takes the form of an answer to the putative question: "What is to happen to my assets and my money if I should lose capacity to manage my affairs?" A solicitor takes instructions and prepares an Enduring Power of Attorney or Enduring Guardianship appointment, for the purpose of providing advice as to how those assets may be managed, and by what person, with what powers.
It was also submitted that access ought not be granted, including to the redacted packet, because of the governing purpose of the protective jurisdiction.
1. In the event that SZF is found not to have capacity to manage his financial affairs NSW Civil and Administrative Tribunal's (NCAT) jurisdiction is informed, and governed by, whether what is done or proposed to be done is done in the best interests, or for the benefit of, the protected person.
2. In this respect, in P v NSW Trustee and Guardian [2015] NSWSC 57, Lindsay J said:
[52] The purposive character of the protective jurisdiction (including that exercised by the Guardianship Division of NCAT, and the Mental Health Review Tribunal, by legislation) is governed by a central informing idea: that the jurisdiction exists for the care of those who are not able to take care of themselves (Secretary Department of Health and Community Services v JWB and SMB (Marion's Case) [1992] HCA 15;(1992) 175 CLR 218 at 258), and that an exercise of the jurisdiction affecting a person in need of protection must be for the benefit, and in the best interests, of that person as an individual, not for the benefit of the state, or others, or for the convenience of carers (Re Eve [1986] 2 SCR 388 at 409-411, 414, 425-428, 429-430, 431-432 and 434; 31 DLR (4th) 1 at 16-17, 19, 28-30, 31, 32 and 34). Implicit in the focus on a person in need of protection as an individual" is respect for his or her autonomy.
On behalf of SZF it was submitted that:
1. It is not in the interests of a protected person for access to their solicitors' file to be granted to those seeking to challenge a Power of Attorney or Enduring Guardianship particularly in cases where the protected person has, expressly, indicated that he or she does not wish for them to access that material (as is the case here).
2. It would be undesirable for any person with a requisite interest who challenges a person's capacity in NCAT to be granted access to private and confidential information of this kind, which might be expected to include:
1. reasons why a particular person or family member is preferred to manage an estate in favour of another person;
2. information about the nature and extent of the protected person's assets;
3. information about a protected person's intentions and desires with respect to their future and property.
1. It is entirely understandable why a person would elect not to reveal or discuss material of that nature with, not only their immediate family, but with any of the range of persons who may commence proceedings in NCAT to review a power of attorney or enduring guardianship. That information should be regarded as inherently sensitive and confidential unless the protected person decides to reveal it.
2. If access were routinely granted in these types of cases, the ability of a person to seek the private counsel of a solicitor with respect to their affairs would be significantly undermined and impaired.
3. For that reason, it is submitted that access should not be granted to the redacted packet because it would not be in the best interests of, or for the benefit of, the protected person for that to take place.
[6]
The decision to refuse access
It has not been submitted on behalf of SZF that the communication recorded the documents was prepared for the dominant purpose of the him being provided with professional legal services relating to legal proceedings or an anticipated or pending proceeding, and I am of the view that they were not prepared for that purpose.
In my view, the authorities regarding access to instructions provided upon the making of wills are of limited assistance in determining the question of access to documents recording lawyer-client communication in the making of an enduring power of attorney and enduring guardianship appointments. I have formed this view for the following reasons:
1. As is indicated in the submissions made on behalf of SZF, probate litigation is interest litigation. This is not the case in matters before this Tribunal. In the Bellamy matter (above) Parker J comments that matters before the Guardianship Division do not constitute interest litigation. In that matter he opines that the applicant:
has no interest in the outcome of the applications before the Tribunal. A decision by the Tribunal either to make a financial management order, or to refuse it, will have no impact on any rights she has. Her only role in the proceedings is as the party who has set into motion the process of the Tribunal inquiring into whether her mother is capable of looking after her own financial affairs. (The applicant) is not a party in the sense that a person who brings or resists a claim for damages, or for some other legal remedies is.
1. In probate litigation the testator is unavailable to give evidence. This is not the case in the current matter in respect SZF who is available to give evidence regarding the reasons for making the appointments he made and his understanding of the effect of the appointments.
2. The Tribunal is an investigative tribunal and is able to question SZF directly regarding his reasons for executing the enduring power of attorney and the enduring guardianship in the terms he did.
Taking into account the order that I made it is not appropriate that I detail the matters contained in the documents in question. However, it is appropriate to note that they include quite wide-ranging discussions about SZF's personal and financial affairs and advice regarding the structuring of those affairs, including advice regarding the making of the enduring power of attorney and the enduring guardianship appointment. To this extent even if I were of the view that I should be guided by courts' decisions regarding access to documents provided in respect of making a will, to the extent that those decisions refer to those instructions as having a dominant purpose of calling into existence a document which would dispose of property after death (see the Urquhart matter above) it is my view that the material provided in response to the summons encompasses a wider purpose than calling into existence the enduring power of attorney and enduring guardianship appointment, and even in the redacted form includes material the dominant purpose of which was to provide advice regarding the legal context of the financial and private affairs of SZF and TBN.
In this context I note the comments of Young J in the matter of AWB Limited v Honourable Terence Rhoderic Hudson Cole [2006] FCA 571, who commented:
[100] … I accept that legal advice is not confined to telling the client the law but includes professional legal advice as to what should prudently and sensibly be done in the relevant legal context …
In my view the content of the documents provided under summons, included the redacted version, fits squarely within the description cited above. In my view the fact that as a result of the communication certain instruments were executed does not render the production of those documents as the dominant purpose of the communication.
The documents do include specific reference to the enduring power of attorney and enduring guardianship appointments. However, in my view, those references are within the context of wider discussions and do not lend themselves to being lifted out of their context.
It follows from the views I have expressed above, that in my opinion, the communication recorded in the material obtained under summons constitutes confidential communication made between SZF as the client and his lawyer for the dominant purpose of the lawyer providing legal advice to the client and therefore, in accordance with s 67 of the of the Civil and Administrative Tribunal Act nothing requires the disclosure of the documents.
I do not accept the submission that in seeking to defend an application made by others, SZF has waived his right to claim privilege in respect of the communication with his lawyer.
I accept the submissions made on behalf of the applicants that in considering the applications it would be relevant to consider matters such as SZF's reasons for making the appointments he made and the extent to which he understood the nature and effect of the instruments and the appointments and their effect on his affairs and that evidence regarding these matters would assist the Tribunal to determine the matters before it. However, I do not accept that access by the parties to the summonsed material is essential for these enquiries, because direct evidence can be sought from SZF regarding his views and understanding of the instruments and his affairs. It is also possible to directly question the solicitor who witnessed and certified the execution of the documents regarding steps taken to satisfy herself that SZF understood the nature and effect of the appointments.
Taking into account my views as expressed above it is my view that the summonsed material is protected by legal advice privilege and that its release to the applicants is not necessary for the proper exercise of the Tribunal's jurisdiction. Accordingly, in my view taking into account the objection by SZF to the release of the material, access to the documents should be denied to the applicants.
[7]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
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: 09 September 2019