EEH v NSW Self Insurance Corporation

NCAT Administrative and Equal Opportunity|2021-02-03

REASONS FOR DECISION

Pursuant to the Orders of the Tribunal dated 27 August 2020, on 17 September 2020 the Applicant requested that the Tribunal issue a summons in this matter (Summons Application). The proposed summons now before the Tribunal seeks that the Respondent produce three documents, in two cases with their attachments.
On 23 October 2020 the Applicant filed submissions in support of the Summons Application (AS).
In the AS the Applicant amended the scope of the proposed summons to seek production of the following documents (Documents): 1. Document from Employers Mutual Limited (EML) to DLA Piper in November 2011 providing instructions to attend a mediation with the Applicant and his representatives. [Document 1] 2. Email from Henry Davis York to Jenne Tzavaras and Ivan Medak of DLA Piper on 23 November 2011, including the attached document ("Deed of Release"). [Document 2] 3. Letter from Henry Davis York to Jenne Tzavaras and Ivan Medak of DLA Piper on 25 November 2011, including the attached documents ("Deed of Release"). [Document 3]
By the agreement of the parties (and as noted by the Tribunal in its Orders dated 6 October 2020) the summons application is to be dealt with by the Tribunal on the papers (i.e. without a hearing) after 5 November 2020.
On 3 November 2020 the Respondent filed submissions objecting to the issue of the proposed summons (RS).
By letter dated 24 November 2020 the Respondent amended the RS by withdrawing its submission made at paragraph [16(b)] of the RS that the Respondent, through its agent EML: does not have a record of receiving the letter [dated 25 November 2011] sought in paragraph 3 of the proposed summons [i.e. Document 3].

Relevant Principles

In an application under s55 of the PPIP Act for administrative review the Tribunal only has jurisdiction to review conduct of the Respondent (in this case) where and only to the extent that the Applicant (in this case) has earlier applied for internal review of that conduct. The conduct that is the subject of an internal review sought by an Applicant under s53 PPIP Act (in this case the IR Request) and thus the conduct which is the subject of the external review by the Tribunal under a s55 PPIP Act is the alleged actions or circumstances involving the Respondent detailed in the IR Request (in this case) that might amount to a possible contravention by the Respondent of an IPP: CYL v YZA [2017] NSWCATAP 105.
The Tribunal is required to determine the scope of the administrative review, the subject of the AR Application proceedings, by reference to the conduct of concern the subject of the IR Request (in this case). The scope of the IR Request is a matter of fact to be determined objectively by construing the application reasonably: KO v Commissioner or Police, NSW Police Force (GD) [2005] NSWADTAP 56; CYL v YZA [2017] NSWCATAP 105 at [58]. It is with respect to and as against this scope of the Tribunal's administrative review in the proceedings that the Tribunal must also assess the Summons Application.
Section 48(1) of the Civil and Administrative Tribunal Act 2013 (CAT Act) provides that a summons may be issued by a registrar on the application of a party to the proceedings or at the direction of the Tribunal: Zonnevylle v Department of Justice [2018] NSWCATAD 96 (Zonnevylle) at [8]. In this case the Applicant has sought the direction of the Tribunal to issue the summons that the Applicant has requested.
The overriding principle in relation to issuing a summons is that the evidence sought to be obtained (be it documentary or testimonial) must have apparent, as distinct from actual, relevance to the case. In other words, the information sought needs to be able to "throw light on the issues in the case": Sharpe v Grobbel [2017] NSWSC 1065 at [35]. That is, a summons must only be issued for a legitimate forensic purpose: Zonnevylle at [9].
The Appeal Panel summarised the relevant principles for the grant of leave to issue a summons in Lonsdale v University of Sydney [2015] NSWCATAP 277 at [25] and [26], as follows: 25. In White v Carlton Tow Bars Pty Ltd [2014] NSWCATAP 36, the Appeal Panel listed these considerations as relevant to the grant of leave to issue summonses: (a) legitimate forensic purpose; (b) identification of the respondent to an attendance summons 'with clarity and precision'; and similarly, (c) identification of the documents in a documents summons with clarity and precision, rather than setting out a series of questions. 26. We agree with the respondent's submissions that to these should be added: (d) the respondent must be both competent and compellable (though this will sometimes be a difficult matter for a registrar to address at that stage of consideration); and (e) a summons should not be over-broad and/or oppressive.
In addition, the principles to be applied when considering an application to set aside a summons (which I believe are also relevant considerations as to whether or not to grant a summons in the first place), as cited by the Tribunal in ALL v Sydney Local Health District [2019] NSWCATAD 143 at [26], were summarised by Deputy President Hennessy in CPJ v The University of Newcastle [2017] NSWCATAD 350 at [8] to [12]: 8. The Tribunal's guiding principle when exercising any power under the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), is to "facilitate the just, quick and cheap resolution of the 'real issues' in proceedings": s 36(1). … 9. …The Tribunal may draw on common law principles when determining whether to set aside a summons. At common law, a summons must only be issued for a legitimate forensic purpose. The onus is on the party attempting to procure the material to demonstrate a legitimate forensic purpose by reference to the issues as disclosed in the pleadings: Becwell Legal Services Pty Ltd v McMaster [2011] FCA 1501 at [27]. 10. It is an abuse of process to issue a summons in relation to documents which have no "apparent relevance" to the issues in dispute: Portal Software v Bodsworth [2005] NSWSC 1115 Brereton J at [22] and [23]; Becwell Legal Services Pty Ltd v McMaster [2011] FCA 1501 at [26]. It is also impermissible for a party to use a summons for "fishing". The author Bernard Cairns describes "fishing" as "where a party attempts by way of a subpoena to find out facts, matters and circumstances which might enable the party to advance a case of which there is no present knowledge": Bernard Cairns, Australian Civil Procedure, Thomson Reuters (10th ed 2014) at 585. 11. The question is not whether the documents would be admissible in evidence or will "definitely advance the case of the parties" issuing the summons: Portal Software v Bodsworth [2005] NSWSC 1115 Brereton J at [25]. The test is whether the documents sought under the summons have apparent, as distinct from actual, relevance to the case: National Employers' Mutual General Assn Ltd v Waind [1978] 1 NSWLR 372; Casley-Smith v District Council of Stirling (1989) 51 SASR 447. 12. In a recent Supreme Court case, Brereton J summarised the principle as being "… that there is a reasonable basis for supposing that the material called for will likely add, in the end, in some way or another, to the relevant evidence in the case. This reflects the notions that the documents relate to, throw light on or are sufficiently relevant to the dispute; that they "appear relevant in the sense they relate to the subject matter of the proceedings"; or that they could possibly throw light on the issues in the case": Sharpe v Grobbel [2017] NSWSC 1065 at [35] (footnotes deleted.)

The Applicant's Submissions

In the AS at [4] the Applicant submits that the Respondent states in [4.14] of the IR Decision that EML instructed DLA Piper to attend the Meeting with the Applicant and his legal representatives on its behalf. That is, DLA Piper were attending the Meeting and participating in the mediation/negotiations on behalf of EML who, in turn, were acting as agent for the Respondent.
After noting that the HDY Email is contrary to certain findings in the IR Decision as to who DLA Piper were representing at the Meeting and thus in the negotiations, the Applicant submits in the AS in respect of Document 1 that: [7] Based on the [HDY Email], the Applicant disputes the Respondent's contentions that EML instructed DLA to attend the mediation and, therefore, that the respondent, via EML, was involved in the negotiations. [8] The document from EML to DLA Piper in November 2011 providing instructions to attend mediation has actual, or at least apparent, relevance and "could possibly throw light on the issues in the case". [After citing relevant cases in paragraphs [9] and [10]] [11] The part or parts of the document from EML to DLA Piper in November 2011 providing instructions to attend the mediation would not be privileged. In any event, the respondent, having asserted that EML instructed DLA Piper in the Report of Internal Review, waived any privilege which may have existed in the fact of the instruction (Coombes and Patent). [13] The onus of establishing a claim for client legal privilege falls on the respondent if it makes such a claim (Priest). There is certainly no onus on the applicant to disprove a possible claim for client legal privilege.
The Applicant also submits, most relevantly, in the AS in respect of Documents 2 and 3 that: [18] The reasons for HDY providing the copies of the "the Deed of Release", including whether those documents were solicited by the respondent and the reasons the respondent gave for soliciting the document, have actual, or at least apparent, relevance and could possibly throw light on the issues in this case.

The Respondent's Submissions

In the RS the Respondent submits, most relevantly in respect of the Document 1, that: [7] …The respondent, through its agent EML, had instructed DLA Piper to act for it in relation to the workers compensation claims: see Internal Review Decision [i.e. IR Decision] at [4.14]. [8] Henry Davis York and DLA Piper attended a mediation with the applicant and his representatives, which resulted in the settlement recorded in the Deed. There were subsequent communications between Henry Davis York and DLA Piper. … [16] The respondent submits that the Tribunal would be satisfied that the applicant's application for a summons is for a spurious purpose, not connected to the prosecution of these proceedings to substantiate his allegation that the respondent, through EML, had breached the PPIP Act in collecting the Deed, when regard is had to [most relevantly] the following: a. first, the applicant has already sought copies of the documents described in paragraphs [i.e. Documents] 1, 2 and 3 of the proposed summons in extant proceedings before the Tribunal bought by the applicant against Insurance Care NSW ("icare"): i. the document described at paragraph [i.e. Document] 1 is a document he has applied to have the Tribunal order icare to produce after reviewing icare's conduct under s55 of the PPIP Act in EVH v Insurance and Care NSW (NCAT Case No. 2020/11253). The Tribunal has reserved its decision; and … [17] The respondent submits that the proposed summons has no legitimate forensic purpose and, therefore, the production of the documents would not "throw light on the issues in the case" (see Zonnyvylle above). … [19] In relation to the applicant's articulated basis summarised in paragraph 18a above, there is no logical basis for saying that documents recording the content of EML's instructions to DLA Piper to attend a mediation would demonstrate that DLA Piper were not instructed by EML. … [22] Even if the Tribunal were satisfied that the proposed summons had a legitimate forensic purpose, the respondent submits that the Tribunal would be satisfied that if the proposed summons were to issue, it would require the production of documents that are subject to client legal professional privilege and/or settlement negotiation privilege, which could not be required to be produced under this s67 of the CAT Act. … [33] The Respondent submits that having regard to the construction to be taken of those words [as reproduced in paragraph 32 of the RS], the Tribunal will be satisfied that purposes for which: a. A document from EML to DLA Piper "providing instructions to attend a mediation with the applicant and his representatives" is for the dominant purpose of the DLA Piper providing professional legal services to EML;… … [35] Combes and Pratten may well stand for those general propositions at common law; however, as the words of s119 of the Evidence Act 1995 make clear, privilege attaches to confidential communications for the purposes of "being provided with professional legal services", not just the provision of legal advice: contra s118. …It is sufficient that the content of those instructions were for the dominant purposes of DLA Piper appearing for EML at mediation, which is work done in the ordinary course of legal practice, as was accepted in Sugden, as noted above at [30]. … [40] The substance of the evidence contained in the instructions has not been disclosed. All that has been disclosed is the existence of the instructions to attend mediation, and not detailed instructions as to how to conduct that mediation.
As regards the Documents 2 and 3, in the RS the Respondent relevantly submits that: [16.a.ii.] the document described at paragraph [i.e. Document] 2 of the proposed summons is the subject of a privilege claim in EEH v Insurance and Care NSW (NCAT Case No. 2020/87351), which is being determined by the Tribunal; … [20] In relation to the applicant's articulated basis summarised in paragraph 18.b above, that the Deed was collected by the respondent through EML is not in dispute: see Internal Review Decision at [4.19]. The relevance of whether the Deed was solicited or not is that, if it were unsolicited, there would be no "collection" for the purposes of the PPIP Act and no possible breach of the collection information protection principles: s5(4). In circumstances where the collection is conceded, it is simply not relevant that the documents "could" demonstrate that the Deed was solicited by the Respondent.

Consideration and findings

The Tribunal's initial task is to identify the issues in dispute so it can then determine, in the light of those issues, whether the summons sought to be issued is for a legitimate forensic purpose.
After considering and applying the principles referred to in paragraph [18], [19] and [20] above, in respect of the Specific Issues which are within the scope of the Tribunal's administrative review under the AR Application in these proceedings, I find that one of the issues in dispute is whether or not DLA Piper attended the Meeting (and thus participated in the mediation/negotiations) which resulted in the Deed for and on behalf of EML (as agent for the Respondent). That is, in issue is whether EML (as agent of the Respondent) was a party to the mediation/negotiations with the Applicant which resulted in the Deed and, as a result, is therefore entitled to a copy of the Deed. If the Respondent (through the legal representatives of its agent EML) was not a party to the mediation/negotiations then it will become necessary to examine (and for the Tribunal to determine) whether or the conduct of EML (as agent of the Respondent) in collecting the Deed of Release in the circumstances was in breach of ss 8(1)(b),(2) and/or 9 PPIP Act (i.e. IPPs 1 and/or 2).
I find that Document 1 has apparent relevance to an issue in dispute in the AR Application proceedings and will "throw light on" the issue of whether or not DLA Piper attended the negotiations on behalf of EML (as agent of the Respondent) and thus whether the Deed was collected on behalf of the Respondent, as claimed by the Respondent, as a participant in the negotiations and formation of the Deed. Therefore, I find that the summons for Document 1 has a legitimate forensic purpose.
As regards the claim of client legal professional privilege in respect of Document 1, as the Tribunal does not have Document 1 before it the Tribunal cannot consider submissions in respect of the of legal privilege attaching to Document 1 at this time.
As a result of my conclusion in paragraph [28] above, but subject to any application by the Respondent for the Tribunal to consider Document 1 and the Respondent's submissions as to legal privilege, I grant leave for the issue of a summons to produce Document 1.
As regards Documents 2 and 3, I prefer the submissions of the Respondent. As the Respondent has conceded that the Deed has been collected by the Respondent (i.e. by EML on behalf of the Respondent), I agree that there is no issue in dispute as regards the Specific Issues (or any other conduct of concern of the Respondent as set out the IR Request) that the Respondent has a copy of the Deed. That is, in my view, disclosure of Documents 2 and 3 will not "throw light on" and are not relevant to any issue in dispute in these proceedings. Therefore, I find no legitimate forensic purpose for the issue of the summons for Documents 2 and 3.
As a result of my conclusions in paragraph [31] above, I do not grant leave to issue the summons to produce Documents 2 and 3.

Orders

For the above reasons: 1. Subject to the receipt of any submissions of the Respondent in accordance with Order 2 below, the application to issue a summons for the production of Document 1 is granted. 2. Within 14 days of the date of these reasons for decision the Respondent may make written submissions to the Tribunal in respect of any legal professional privilege issues relating to the disclosure of Document 1 (or any parts of it) and submit to the Tribunal (in confidence) a copy of Document 1 for consideration. 3. Within 14 days of the Respondent's submissions in Order 2, the Applicant may make written submissions in reply to the Tribunal in respect of any of legal professional privilege issues relating to the disclosure of Document 1 (or any parts of it). 4. The application to issue a summons for production of Documents 2 and 3 is refused. 5. The matter is listed at 9:30am on 23 February 2021 for further directions and to set a hearing date for hearing the administrative review application.

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

Amendments 03 February 2021 - Order (5) amended. "AR Application" replaced with "administrative review application". 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: 03 February 2021

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