EEH v NSW Self Insurance Corporation

Background

1. The background to this matter and the Summons Application is set out in paragraphs [7] to [14] of the First Decision.
2. In the First Decision the Tribunal determined, at paragraph [29], that; 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.
3. As a result of that conclusion the 3 February Orders gave the Respondent an opportunity to submit Document 1 in confidence and to make further submissions as to its claims of privilege in relation to Document 1 for the Tribunal's consideration. The Applicant was also given the opportunity pursuant to the 3 February Orders to make further submissions in reply to the any further submissions filed by the Respondent.

Materials before the Tribunal

1. In determining this matter I considered the following materials filed by the parties: Applicant 1. the Applicant's Submissions and attached document filed on 23 October 2020 in support of the Summons Application (Applicant Submissions); Respondent 1. the Submissions of Respondent filed on 24 November 2020 (Respondent Submissions); 2. the Submissions of Respondent - Privilege Over Document 1 filed on 9 February 2021 (Respondent Privilege Submissions); and 3. a copy of Document 1 provided to the Tribunal in confidence filed with the Respondent Privilege Submissions on 9 February 2021.

Relevant principles

1. The applicable law in this case was, relevantly and in summary, detailed in CNC v NSW Police Force [2017] NSWCATAD 43 as follows: [8] … Although the Tribunal is not bound by the rules of evidence, there are some rules that do apply, including legal advice and litigation privilege: NCAT Act, s 38(2). Section 67 of the NCAT 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. … [10] Legal advice and litigation privilege are described in s 118 and s 119 of the Evidence Act; … 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. [11] The relevant definitions are set out in s 117 of the Evidence Act: (1) In this Division: "client" includes the following: (a) a person or body who engages a lawyer to provide legal services or who employs a lawyer (including under a contract of service), (b) an employee or agent of a client, (c) an employer of a lawyer if the employer is: (i) the Commonwealth or a State or Territory, or (ii) a body established by a law of the Commonwealth or a State or Territory, (d) if, under a law of a State or Territory relating to persons of unsound mind, a manager, committee or person (however described) is for the time being acting in respect of the person, estate or property of a client-a manager, committee or person so acting, (e) if a client has died-a personal representative of the client, (f) a successor to the rights and obligations of a client, being rights and obligations in respect of which a confidential communication was made. "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. "lawyer" means an Australian lawyer, a foreign lawyer, or an employee or agent of either of them. "party" includes the following: (a) an employee or agent of a party, (b) if, under a law of a State or Territory relating to persons of unsound mind, a manager, committee or person (however described) is for the time being acting in respect of the person, estate or property of a party-a manager, committee or person so acting, (c) if a party has died-a personal representative of the party, (d) a successor to the rights and obligations of a party, being rights and obligations in respect of which a confidential communication was made. (2) A reference in this Division to the commission of an act includes a reference to a failure to act. [12] Client legal privilege will be lost or waived in certain circumstances. Two potentially relevant circumstances for the purpose of these proceedings are described in s 122 and 126 of the Evidence Act. The relevant provisions are as follows: 122 Loss of client legal privilege: consent and related matters (2) Subject to subsection (5), this Division does not prevent the adducing of evidence if the client or party concerned has acted in a way that is inconsistent with the client or party objecting to the adducing of the evidence because it would result in a disclosure of a kind referred to in section 118, 119 or 120. (3) Without limiting subsection (2), a client or party is taken to have so acted if: (a) the client or party knowingly and voluntarily disclosed the substance of the evidence to another person, or (b) the substance of the evidence has been disclosed with the express or implied consent of the client or party. (4) The reference in subsection (3) (a) to a knowing and voluntary disclosure does not include a reference to a disclosure by a person who was, at the time of the disclosure, an employee or agent of the client or party, or of a lawyer of the client or party, unless the employee or agent was authorised by the client, party or lawyer to make the disclosure. …
2. In addition, in this case, s 131 of the Evidence Act 1995 (Evidence Act) is also applicable: 131 Exclusion of evidence of settlement negotiations (1) Evidence is not to be adduced of - (a) a communication that is made between persons in dispute, or between one or more persons in dispute and a third party, in connection with an attempt to negotiate a settlement of the dispute, or (b) a document (whether delivered or not) that has been prepared in connection with an attempt to negotiate a settlement of a dispute. (2) Subsection (1) does not apply if - (a) the persons in dispute consent to the evidence being adduced in the proceeding concerned or, if any of those persons has tendered the communication or document in evidence in another Australian or overseas proceeding, all the other persons so consent, or (b) the substance of the evidence has been disclosed with the express or implied consent of all the persons in dispute, or (c) the substance of the evidence has been partly disclosed with the express or implied consent of the persons in dispute, and full disclosure of the evidence is reasonably necessary to enable a proper understanding of the other evidence that has already been adduced, or (d) the communication or document included a statement to the effect that it was not to be treated as confidential, or (e) the evidence tends to contradict or to qualify evidence that has already been admitted about the course of an attempt to settle the dispute, or (f) the proceeding in which it is sought to adduce the evidence is a proceeding to enforce an agreement between the persons in dispute to settle the dispute, or a proceeding in which the making of such an agreement is in issue, or (g) evidence that has been adduced in the proceeding, or an inference from evidence that has been adduced in the proceeding, is likely to mislead the court unless evidence of the communication or document is adduced to contradict or to qualify that evidence, or (h) the communication or document is relevant to determining liability for costs, or (i) making the communication, or preparing the document, affects a right of a person, or (j) the communication was made, or the document was prepared, in furtherance of the commission of a fraud or an offence or the commission of an act that renders a person liable to a civil penalty, or (k) one of the persons in dispute, or an employee or agent of such a person, knew or ought reasonably to have known that the communication was made, or the document was prepared, in furtherance of a deliberate abuse of a power. … (5) In this section - (a) a reference to a dispute is a reference to a dispute of a kind in respect of which relief may be given in an Australian or overseas proceeding, and (b) a reference to an attempt to negotiate the settlement of a dispute does not include a reference to an attempt to negotiate the settlement of a criminal proceeding or an anticipated criminal proceeding, and (c) a reference to a communication made by a person in dispute includes a reference to a communication made by an employee or agent of such a person, and (d) a reference to the consent of a person in dispute includes a reference to the consent of an employee or agent of such a person, being an employee or agent who is authorised so to consent, and (e) a reference to commission of an act includes a reference to a failure to act. (6) In this section - power means a power conferred by or under an Australian law.
3. In Priest v State of New South Wales [2006] NSWSC 1281 Johnson J, most relevantly for these proceedings, summed up the process to determine if privilege applies as follows: [19] Client legal privilege will be found with respect to confidential documents made for the dominant purpose of a lawyer providing legal advice or for the dominant purpose of a lawyer providing legal services relating to litigation: ss.118, 119 Evidence Act 1995. [20] Assessing a claim for privilege under s.118 or s.119 is a two-stage process. The first step is for the Court to be satisfied that the communication or contents, disclosure of which is sought to be prevented, satisfies the requirements set out in s.118 or s.119 or both sections. The second step is for the Court to be satisfied that the production of the document, or the unredacted part of it, would result in the disclosure of a confidential communication or the confidential contents of a document: Re Southland Coal Pty Limited [2006] NSWSC 899 at 14.
4. The Respondent, in this case, bears the onus of establishing the claim for legal privilege. It must establish the facts which give rise to the claim for privilege: Grant v Downs ([1976] HCA 63; 1976) 135 CLR 674 (see also QQ v Commissioner of Police, NSW Police Force (No. 2) NSWADT 79 at [13]).

The Applicant's submissions

1. In the Applicant Submissions at [4] the Applicant submits that the Respondent states in [4.14] of the internal review decision of the Respondent (IR Decision) that EML instructed DLA Piper to attend a meeting with the Applicant and their legal representatives (Meeting) on its behalf (ie EML being the agent of the Respondent). That is, DLA Piper was attending the Meeting and participating in the mediation/settlement negotiations on behalf of EML who, in turn, were acting as agent for the Respondent.
2. After referring to an email from another law firm involved in the Meeting (HDY Email) which was contrary to the findings in the IR Decision as to who DLA Piper were representing at the Meeting (and thus in the negotiations) the Applicant submits in respect of Document 1, in summary and most relevantly, 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. [10] In Pratten v Pratten [2005] QCA 213 (Pratten) Muir J said (at [79]): "The primary judge rejected the submission and refused to commit the solicitor to be called to give evidence. His Honour erred. The giving of instructions by a client to the client's solicitor to act in a particular way or to communicate a matter to the other side of litigation would not normally be regarded as attracting legal professional privilege. It is not a communication for the purposes of giving or receiving legal advice but even if such communication were privileged, it is difficult to see why the respondent, having asserted that a particular instruction had been given, had not waived any privilege which may have existed in the fact of the instruction …" [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 Pratten). … [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 Respondent's submissions

1. In the Respondent Submissions 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 [their] representatives, which resulted in the settlement recorded in the Deed. There were subsequent communications between Henry Davis York and DLA Piper. … [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 Respondent Submissions], 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.
2. In the Respondent Privilege Submissions the Respondent further submits in respect of the Document 1, in summary and most relevantly, that: [6] Instructions as to strategy and quantum at a mediation are quintessentially confidential communications that are for the dominant purpose of a lawyer providing legal advice and for a client "being provided with professional legal services": Evidence Act 1995 ss. 118 and 119; see generally Re Global Medical Imaging Management Limited (in liq) [2001] NSWSC 476 at [7]. [7] Such material is inherently confidential, as its disclosure would place one party at a substantial disadvantage in the conduct of settlement negotiations. Such material remains confidential following the conclusion of settlement negotiation. This is true both because there is no reason that it would cease to be confidential, and because its disclosure would create the risk of one party for the settlement seeking to overturn it if convinced, they could have obtained a better outcome. This would undermine the fundamental value of settlements in achieving finality. [8] As to the question of whether privilege has been waived in any relevant sense, the respondent reiterates its submission at [Respondent's Submission] [40]: The disclosure of an instruction to attend a mediation is not the same as a disclosure of detailed instructions as to how to conduct that mediation. [9] The distinction between instructions to attend a settlement and instructions as to how to conduct that settlement was recognised in Carey v Korda [2012] WASCA 228 at [65]: "The inference that the solicitor was instructed by the client to attend at settlement, and to give any consequential advice in connection with the settlement, would be drawn from the fact that the solicitor had attended at settlement … in so far as the client had instructed the solicitor to attend settlement and (it may be inferred) to give any necessary consequential advice in that regard, those instructions (at the level of generality), could no longer be regarded as a confidential communication" (emphasis added). … [11] The respondent reiterates its submission at [Respondent Submissions] [41] that Document 1 is plainly a document prepared in connection with an attempt to negotiate a settlement of a dispute. Section 131(1)(b) of the Evidence Act would therefore operate to prevent Document 1 being adduced as evidence. Section 67(1)(c) of the Civil and Administrative Tribunal Act 2013 accordingly prevents the production of Document 1 from being compelled by way of Summons.

Consideration and findings

1. As defined in s 67(2) CAT Act (see [11] above), a "document" includes part of a document.
2. Based on the consideration of the material before me and the law, I accept the Respondent's arguments that certain contents or parts of Document 1 are "instructions as to strategy and quantum" to DLA Piper from the Respondent as regards the Meeting (see [18] above). However for the reasons noted by the Applicant, the disclosure of the attendance of DLA Piper at the Meeting to be on behalf of EML as agent for the Respondent and in accordance with the Respondent's submissions in paragraphs [8] and [9] of the Respondent Privilege Submissions (see [18] above) and paragraph [40] of the Respondent Submissions (see [17] above), I am satisfied that parts of Document 1 which are not "instructions as to strategy and quantum" from EML are not subject to client legal privilege.
3. Even if the matters referred to in [20] above which are not instructions as to strategy and quantum were privileged, the fact that the attendance at the Meeting was on behalf of EML as agent of the Respondent was disclosed in the IR Decision and the Respondent's submissions constitutes the waiving of privilege by the Respondent as regards the fact that EML instructed DLA Piper to attend the Meeting on its behalf.
4. I am therefore satisfied that parts of Document 1 are not subject to client legal privilege and should be disclosed to the Applicant in accordance with the summons issued by the Tribunal. The only parts of Document 1 that are subject to privilege are the first sentence of paragraph 2 and the entirety of paragraphs 3 to 8 of Document 1. That is, in disclosing Document 1 to the Applicant the Respondent may redact the first sentence of paragraph 2 and the entirety of paragraphs 3 to 8 of Document 1 before providing Document 1 to the Applicant.
5. Finally, given that there may be a time difference between the publication of these Reasons for Decision and the provision of the redacted version of Document 1 to the Applicant, Order 1 of the Tribunal's 6 April Orders needs consequential amendment to ensure that the 21 days given for the Applicant to provide the material referred to in Order 1 of the 6 April Orders is amended to run from the later of the date of publication of these Reasons for Decision and receipt of Document 1 from the Respondent in accordance with the Orders below.

For the above reasons: 1. Subject to Order 2 below, within 7 days of the date of these Reasons for Decision the Respondent must provide the Applicant with a copy of Document 1. 2. The Respondent may redact the first sentence of paragraph 2 and all of paragraphs 3 to 8 (inclusive) of Document 1 before providing a copy of Document 1 to the Applicant in compliance with Order 1 above. 3. Order 1 of the 6 April 2021 Orders of the Tribunal is deleted and replaced with the following: Within 21 days of the later of the date of these Reasons for Decision and the receipt of Document 1 by the Applicant, the Applicant (EEH) is to give to the Tribunal and NSW Self Insurance Corporation the following material: evidence including statements, documents and a summary of legal arguments about the alleged conduct and about any financial, psychological or physical harm suffered because of the conduct. 1. Other than as amended by Order 3 above, the 6 April 2021 Orders of the Tribunal are unchanged and continue to apply. 2. Pursuant to ss 64(1)(a) and (c) of the Civil and Administrative Tribunal Act 2013 publication or broadcast of the name of the Applicant and publication of Document 1 as filed with the Tribunal (other than by the Respondent) are prohibited.

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 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 25 January 2022 - Clarification of Document number in Order 5 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: 25 January 2022