Fadlallah v Insurance and Care NSW

NCAT Administrative and Equal Opportunity|2021-02-10

REASONS FOR DECISION

The applicant (Sonia Fadallah) seeks review of the decision of the respondent (Insurance and Care NSW (icare)), made on 8 September 2020, to refuse her access to the medical report of Professor Terry Bolin (Professor Bolin). At the request of the respondent, Professor Bolin had assessed the applicant on 18 June 2019.
The applicant made a formal application for access to Professor Bolin's report, under s 41 of the Government Information (Public Access) Act 2009 (NSW) (GIPA Act), on 19 August 2020. The respondent refused to grant the applicant access to the information on the grounds that there is a conclusive presumption of an overriding public interest against the disclosure of the information because the information is privileged (i.e. legal professional privilege): GIPA Act, s 14(1), Sch 1, cl 5 and Evidence Act 1995 (NSW), s 118 and 119.

GIPA Act

The objects of the GIPA Act are set out in s 3, which includes authorising and encouraging the proactive public release of government information by agencies, and providing that 'access to government information is restricted only when there is an overriding public interest against disclosure'.
Section 5 of the GIPA Act creates a presumption in favour of the disclosure of government information unless there is an 'overriding public interest against disclosure'.

Public interest test

Section 13 of the GIPA Act defines what is meant by the term 'overriding public interest against disclosure' as follows: 13 Public interest test There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.
Section 12 of the GIPA Act provides that there is a general public interest in favour of disclosure of government information and that the public interest considerations in favour of disclosure are not closed.

Public interest considerations against disclosure

The public interest considerations against disclosure are closed: GIPA Act, s 14.
Section 14(1) provides that it is to be conclusively presumed that there is an overriding public interest against disclosure of any government information described in Sch 1 of that Act. That is, where access is sought to information that is found to fall within one or more of the clauses in Sch 1, the public interest test in s 13 does not apply. Instead, by reason of s 14(1), where the information for which access is sought, is information for which there is a conclusive overriding public interest against disclosure of that information, this is a ground on which an agency can refuse access to that information: GIPA Act, s 58(1)(d).
Included in Sch 1 is government information that is privileged from production in legal proceedings on the ground of client legal privilege: Sch 1, cl 5, which provides as follows: 5 Legal professional privilege (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege), unless the person in whose favour the privilege exists has waived the privilege. (2) If an access application is made to an agency in whose favour legal professional privilege exists in all or some of the government information to which access is sought, the agency is required to consider whether it would be appropriate for the agency to waive that privilege before the agency refuses to provide access to government information on the basis of this clause. (3) A decision that an agency makes under subclause (2) is not a reviewable decision under Part 5.
The remaining public interest considerations against disclosure are set out in the table to s 14(2) of the GIPA Act. However, unlike the conclusively presumed overriding public interest against disclosure in Sch 1, the s 14(2) public interest considerations against disclosure must be weighed against those that are in favour of disclosure. As this is not a ground relied on by the respondent in these proceedings I have considered it no further.

Background

The applicant is a former employee of the South Western Sydney Local Health District (SWSLHD).
In October 2001, the applicant made a workers compensation claim in which she specified a number of workplace injuries for which she sought compensation. In December 2001, the applicant submitted a further claim form in which she identified a number of additional workplace injuries for which she sought compensation.
In May 2004, the applicant's employment was terminated by SWSLHD.
In or about 2004, the applicant made a claim for permanent loss compensation under sections 66 and 67 of the Workers Compensation Act 1987 (NSW) (WC Act). The applicant was assessed by an approved medical specialist and found to have no permanent loss or impairment at that time. Following an appeal of that assessment, to the Medical Appeal Panel, the applicant was found to have a small percentage permanent impairment and loss in regard to some of her workplace injuries.
In July 2018, the applicant, through her lawyer, made a claim for an increase of her permanent loss and impairment compensation claim on the basis of a deterioration of her workplace injuries. In September 2018, in a notice made pursuant to s 74 of the Workers Injury Management and Workers Compensation Act 1988 (NSW) (WIMWC Act), Employer Mutual Limited (EML), the manager of the applicant's workers compensation claim on behalf of the respondent, disputed the applicant's increase claim.
On 12 April 2019, the applicant, through her solicitor, amended her claim for an increase of her permanent loss and impairment compensation claim by including a claim for permanent loss due to a secondary injury caused by the medicines taken to treat her workplace injuries. In support of this claim, the applicant provided a number of reports of Dr Neil Berry (Dr Berry).
On 23 April 2019, HWL Ebsworth Lawyers (HWLE), the solicitor for EML wrote to the applicant's solicitor acknowledging receipt of the applicant's claim and requesting further information in regard to that claim.
On 20 May 2019, HWLE wrote to the applicant's solicitor to advise that an appointment had been made for the applicant to be assessed by Professor Bolin. Professor Bolin had not assessed the applicant previously, but had been chosen by the respondent as the doctor who had assessed her previously was not available. In the letter to the applicant's solicitor, HWL said: - Your client may be held responsible for any broken appointment fees in relation to any-non attendance … - Your client has an obligation pursuant to s 119 of the Workplace Injuries Management and Workers Compensation Act 1988 to attend this appointment. - Your client may request a copy of the report as well as copies of documents provided to the IME. - Worker's compensation legislation give the worker, or the authorised nominee, a right to a copy of any report relevant to a decision made by a referrer to dispute liability or reduce compensation benefits.
As I have noted above, Professor Bolin assessed that applicant on 18 June 2019. Professor Bolin's report to HWLE on his assessment of the applicant is dated the same day.
On 23 December 2019, the solicitor for the applicant wrote to HWLE requesting a review of the applicant's 2018 claim (as amended in 2019). The request was made under s 287A of the WIMWC Act, which requires the insurer to conduct a review of the claim within 14 days.
On 8 January 2020, HWLE wrote to the applicant's solicitor setting out the instructions received in response to the applicant's claim. In regard to the applicant's claim for permanent loss compensation, HWLE said: In reliance on the assessments of Dr Panjratan and Dr Berry in their reports dated 24 July 2019 and 24 January 2019 respectively, EML makes the following offer of settlement: …
Attached to the HWLE letter was a copy of the report of Dr Panjratan who had assessed the applicant, on behalf of EML, in regard to her workplace injuries the subject of her original claim.

The applicant's case

In support of her case, the applicant provided written submissions on 26 November 2020, 19 January 2021 and 9 March 2021. In essence the applicant asserts that cl 41 of the Workers Compensation Regulation 2016 (NSW) (WC Reg) places an obligation on the respondent to provide her with a copy of the report. She also argued that, in the 20 May 2019 letter, HWLE had expressly said she could obtain a copy.
The applicant submitted that the Standards of Practice issued by the State Insurance Regulatory Authority (SIRA) is consistent with the obligation in cl 41 of the WC Reg, in that the management of claims will be undertaken in an empathetic manner intended to maximise fairness for workers and that there should be transparency.
The applicant also gave an account of what she and Professor Bolin had discussed during her assessment. This account was not in a statement or affidavit form. But she asserts that during her assessment, Dr Bolin asked her questions and explained what he would be including in his report. The applicant went on to say, that having disclosed to her the nature of the advice he would be providing, it could not be argued that the advice was confidential.

The respondent's case

In the written submissions of 18 December 2020, the respondent contends that there is little doubt that the Professor Bolin's report was a 'confidential document and/or contains confidential information'. That is, it was prepared for the dominant purpose of HWLE providing legal advice to EML in respect of the applicant's claim.
Furthermore, it was submitted that EML was under no order or direction of a court to serve Professor Bolin's report. Instead 'it was assessing the Claim on behalf of icare' and 'in the course of that assessment, it obtained legal advice and legal services from HWLE' which 'included legal advice relating to the Bolin Report'.
The respondent also submitted that, contrary to the submissions of the applicant, there had been no waiver of the privilege attached to Professor Bolin's report. The fact that Professor Bolin may have discussed matters with the applicant did not mean that privilege had been waived.
In support of its case the respondent relied on two statements of Greg Waddington (Mr Waddington), the Senior Manager - Contract & Support Services of Employers Mutual Management Pty Limited (EMML). The first statement is dated 22 January 2021 and the second statement is dated 26 February 2021.
The respondent also provided written submissions. As I have already noted, the respondent provided the Tribunal, in confidence, with a copy of Professor Bolin's report. A copy of HWLE's letter of instructions to Professor Bolin was also provided in confidence.
In his statements, Mr Waddington explained that EML is a personal injury insurer that has been appointed to provide, on behalf of the respondent and the NSW Self Insurance Corporation (SiCorp), insurance services and claim management services for worker compensation claims of government employees. covered by the Treasury Managed Fund (TMF). EML is not a government agency and the company EMML is a wholly owned subsidiary of EML.
The services provided by EML on behalf of the respondent includes the management of permanent impairment claims and claims for work injury damages related to workplace injuries within government agencies.
Mr Waddington also set out the history of the compensation claims made by the applicant, including her 2018 further claim and the 2019 amendment to that claim. Attached to Mr Waddington's statement were copies of the correspondence concerning these claims and the decisions made in regard thereto.
For example, attached to his 26 February 2021 statement was a copy of a completed two page pro-forma form entitled 'Legal Services Order' that is dated 13 June 2018. This date pre-dates the date on which the applicant's solicitor made the applicant's claim for an increase of her permanent loss and impairment compensation claim. This is acknowledged in the respondent's Legal Services Order (see entry against 'Initial reserve').
The 'Legal Services Order', identifies the service provider as HWLE and the 'client' is stated to be 'NSW Treasury Managed Fund - NSW Treasury Managed Fund (EML Health)'. On the second page of the 'Legal Services Order' the 'client representative' is identified as 'Michelle Tran' 'Permanent Impairment Specialist', whose email address is an EML email address.
Attached to the 'Legal Services Order' are two completed five page pro-forma instruction forms. The first form of instructions is also dated 15 June 2018, and the second form is dated 23 April 2019. Each form contains the same matter number and identifies the matter as 'The State of NSW (South Western Sydney Local Health District) ats Sonia Fadlallah'.
On the first form, against the heading 'Scope' the following is stated: Provide advice in relation to the Worker's threshold dispute (>15% WPI) and further permanent loss compensation claim for injury to …
On page 2 of this form, against the heading 'Expert/s', the following is stated: EML will need to have the Applicant assessed by an IME …
Included in the instructions of 23 April 2019, against the heading 'Expert/s', was the following: The worker will need to be re-examined by Dr Panjratan as well as a gastroenterologists in order to obtain an updated assessment of loss of use/function as well as WPI.
In his statement of 22 January 2021, Mr Waddington said the following in regard to the engagement of Professor Bolin and the offer of settlement as contained in the 8 January 2020 letter of HWLE to the applicant's solicitor: 19 … [Prof] Bolin was retained by HWLE on behalf of EML. … 20 … 21 On 8 January 2020, HWLE wrote to [the applicant's lawyer] offering to resolve the applicant's [secondary injury] claim by accepting Dr Berry's assessment of 15% permanent loss of use of … 22 At no stage did EML dispute the applicant's loss of … claim. 23 At no stage did HWLE or EML rely upon the report provided by Prof Bolin to contest any aspect of the Compensation Claim. That is, EML accepted the expert evidence of Dr Berry served by the applicant.
In his oral evidence, Mr Waddington said that he oversees case managers and does not make any decisions about individual compensation claims. That is, he oversees staff members who make such decisions. He said that not all claims are referred to a legal provider, but a claim for permanent impairment under s 66 of the WC Act would be referred to a legal provider. He also agreed that the circumstances in cl 41 of the WC Regs would override a claim for privilege.
In the further outlie of written submissions dated 22 January 2021, the respondent contends that cl 41 of the WC Reg does not apply because, at the time the s 74 notice was issued, no claim or evidence in support of the applicant's secondary injury had been made or provided. I understand the respondent to contend that when the applicant requested her s 287A request for review, no notice of dispute had been issued by the respondent in regard to her 2019 secondary injury claim. Hence the January 2020 offer of settlement in regard to the applicant's secondary injury claim was accepted and never disputed. Hence, cl 41 did not apply.

The SICG Act

The respondent (icare) is a body corporate established under s 4 of the State Insurance and Care Governance Act 2015 (NSW) (SICG Act). It is a government agency.
The functions of the respondent are set out in s 10(1) of that Act and include: 1. to act for the Nominal Insurer in accordance with s 154 of the WC Act; and 2. to provide services (including staff and facilities) for any relevant authority, or for any other person or body, in relation to any insurance or compensation scheme administered or provided by the relevant authority or that other person or body.
A 'relevant authority' for the purposes of s 10(1) of the SICG Act includes the NSW Self Insurance Corporation (SiCorp).
The SiCorp is established under s 4 of the NSW Self Insurance Corporation Act 2004 (NSW) (SiCorp Act). It is a corporation and a statutory body representing the Crown. Its functions include the operation of one or more Government managed fund schemes, which includes the Government managed fund schemes for all government employers: SiCorp Act, s 7(2) and 8; WC Act, s 211B. The Government managed scheme for government employees is the Treasury Managed Fund (TMF), which is a self-insurance fund to insure NSW government agency risk.
Section 17 of the SICG Act also established the State Insurance Regulatory Authority (SIRA), which is a corporation and a government agency. The principle objectives of SIRA are set out in s 23 and include: 23 Principal objectives of SIRA The principal objectives of SIRA in exercising its functions are as follows: (a) to promote the efficiency and viability of the insurance and compensation schemes established under the workers compensation … under which SIRA exercises functions, (b) to minimise the cost to the community of workplace injuries … to minimise the risks associated with such injuries, (c) to promote workplace injury prevention, effective injury management and return to work measures and programs, (d) to ensure that persons injured in the workplace or … have access to treatment that will assist with their recovery, (e) to provide for the effective supervision of claims handling and disputes under the workers compensation … legislation …, (f) to promote compliance with the workers compensation and … legislation …
Under section 24(1) of the SICG Act, SIRA is given such functions as are conferred or imposed on it by or under that Act or any other Act, including under the workers compensation legislation. SIRA (the Authority) is given a number of functions under the WC Act and the WIMWC Act. Section 376 of the WIMWC Act, for example, makes provision for SIRA to issue workers compensation guidelines.

WC Act

The WC Act makes provision for employers to be liable for injuries received by their workers and the nature of compensation that is payable to the worker.

WIMWC Act

The WIMWC Act establishes a workplace injury management and workers compensation system.
Chapter 4 of the WIMWC Act contains provisions relating to the making of a compensation claim by a worker and how that claim is to be administered.
Division 2 of Part 2 of that Chapter contains provisions in regard to the administration of claims for compensation by insurers. Section 73 in that Division provides: 73 Insurer to provide copies of reports to worker (cf former s 93E) (1) The regulations may make provision for or with respect to requiring an insurer to provide a worker, a worker's legal representative or any other person with a copy of a specified report, or a report of a specified kind, obtained by the insurer in relation to a claim by the worker. (2) Without limiting subsection (1), the kind of reports to which the regulations under this section can apply include investigators' reports, rehabilitation providers' reports and reports of assessments under section 40A (Assessment of incapacitated worker's ability to earn) of the 1987 Act. (3) If an insurer fails to provide a copy of a report as required by the regulations under this section: (a) the insurer cannot use the report to dispute liability to pay or continue to pay compensation or to reduce the amount of compensation to be paid and cannot use the report for any other purpose prescribed by the regulations for the purposes of this section, and (b) the report is not admissible in proceedings on such a dispute before the Commission, and (c) the report may not be disclosed to an approved medical specialist or an Appeal Panel in connection with the assessment of a medical dispute under Part 7 of Chapter 7.
Division 3 of Part 2 makes provision for the notification of decisions by insurers in regard to a compensation claim. Section 78 in this Division provides that an insurer is to give notice of a decision to (a) dispute liability in respect of a claim, or any aspect of a claim or (b) to discontinue compensation payments.
Divisions 5 and 6 of Part 2 make provision in regard to proceedings before the Commission (now the Personal Injury Commission and formerly the Workers Compensation Commission of New South Wales) and the Compensation Court of New South Wales. In this case, the applicant did not commence proceedings before the Commission.
Division 7 of Part 2 makes provision for medical examinations and the assessment of medical disputes. Section 119, in this Division, makes provision for an employer to direct a worker to submit himself or herself for examination by a medical practitioner nominated by the employer. That section relevantly provides as follows: 119 Medical examination of workers at direction of employer (cf former s 129) (1) A worker who has given notice of an injury must, if so required by the employer, submit himself or herself for examination by a medical practitioner, provided and paid by the employer. … (5) The regulations may make provision for or with respect to requiring an employer or insurer to provide a worker, a worker's legal representative or any other person, within the period required by the regulations, with a copy of any medical opinion or report furnished to the employer or insurer by a medical practitioner in connection with an examination of the worker pursuant to a requirement under this section. (6) If an employer or insurer fails to provide a copy of an opinion or report as required by the regulations under subsection (5): (a) the employer or insurer cannot use the opinion or report to dispute liability to pay or continue to pay compensation or to reduce the amount of compensation to be paid and cannot use the opinion or report for any other purpose prescribed by the regulations for the purposes of this section, and (b) the opinion or report is not admissible in proceedings on such a dispute before the Commission, and (c) the opinion or report may not be disclosed to an approved medical specialist or an Appeal Panel in connection with the assessment of a medical dispute under Part 7 of Chapter 7.
Section 126, in this Division, makes provision for copies of certain medical reports to be supplied to a worker as follows: 126 Copies of certain medical reports to be supplied to worker (cf former s 134) (1) In this section - insurer means a licensed insurer or a former licensed insurer. medical report, in relation to an injured worker, means a written report by - (a) a medical practitioner by whom the worker has been referred to another medical practitioner for treatment or tests related to the injury, or (b) a medical practitioner who has treated the injury, or (c) a medical practitioner who has been consulted by a medical practitioner referred to in paragraph (a) or (b) in connection with treatment of, or tests related to, the injury. (2) The regulations may make provision for or with respect to requiring an employer or insurer in possession of a medical report relating to an injured worker to provide a copy of the report to the worker, the worker's legal representative or any other person, if the worker's claim is disputed. (3) If an employer or insurer fails to provide a copy of a report as required by the regulations under subsection (2) - (a) the employer or insurer cannot use the opinion or report to dispute liability to pay or continue to pay compensation or to reduce the amount of compensation to be paid and cannot use the report for any other purpose prescribed by the regulations for the purposes of this section, and (b) the report is not admissible in proceedings on such a dispute before the Commission, and (c) the report may not be disclosed to a medical assessor or an Appeal Panel in connection with the assessment of a medical dispute under Part 7 of Chapter 7.
Part 4 of Chapter 7 of the WIMWC Act contains provisions in regard to the determination of compensation disputes. Section 287A in that Part makes provision for a worker to request the insurer to conduct a review of his or her disputed claim, before the claim is referred for determination by the Commission. That section is in the following terms: 287A Request for review (1) A worker may request an insurer to review - (a) a work capacity decision of the insurer that is disputed by the worker, or (b) a claim, or any aspect of a claim, that is disputed by the insurer. (2) A request may be made at any time before the dispute is referred for determination by the Commission. (3) The insurer must conduct the review, and notify the worker of the decision on the review, within 14 days after the request is made. Maximum penalty - 50 penalty units.

WC Reg

Clause 41 of the WC Reg provides as follows: 41 Access to certain medical reports and other reports obtained by insurer (1) This clause applies to the following types of reports that an employer or insurer has in the employer's or insurer's possession - (a) medical reports, including medical reports provided pursuant to section 119 (Medical examination of workers at direction of employer) of the 1998 Act, (b) … … (g) reports obtained by or provided to an employer or insurer that contain information relevant to the claim on which a decision to dispute liability is made. (2) This clause applies to the following decisions of an employer or insurer relating to an injured worker - (a) a decision to dispute liability in respect of a claim, or any aspect of a claim (in circumstances requiring the insurer to give the worker a notice under Division 3 of Part 2 of Chapter 4 of the 1998 Act), (b) a decision to discontinue payment, or to reduce the amount of weekly benefits (in circumstances requiring the insurer to give the worker a notice under Division 3 of Part 2 of Chapter 4 of the 1998 Act), (c) a decision on the review under section 287A of the 1998 Act of a decision described in paragraph (a) or (b) that confirms the original decision. (3) For the purposes of sections 73(1) and 126(2) of the 1998 Act, if an employer or insurer makes a decision to which this clause applies, the employer or insurer must provide a copy of any relevant report to which this clause applies to the worker, as an attachment to a notice under Division 3 of Part 2 of Chapter 4 of the 1998 Act or section 287A of the 1998 Act, as the case may be, except where the report has already been supplied to the worker and that report is identified in a statement under clause 38(1)(d). (4) The obligation in this clause to provide a copy of a report applies to any report that is relevant to the claim or any aspect of the claim to which the decision relates, whether or not the report supports the reasons for the decision. (5) If the employer or insurer is of the opinion that supplying a worker with a copy of a report would pose a serious threat to the life or health of the worker or any other person, the employer or insurer may instead supply the report - (a) in the case of a medical report, certificate of capacity or clinical notes - to a medical practitioner nominated by the worker for that purpose, or (b) in any other case - to a law practice representing the worker. (6) …

Consideration

In my view there are three matters in issue in this application and they are as follows: 1. is the information in Professor Bolin's report privileged? 2. if the report is privileged, has the respondent waived its right to make a claim of privilege? and 3. in the event there is no waiver, is cl 41 of the WC Reg applicable to operate as a waiver of privilege for the purpose of cl 5 of Sch 1 of the GIPA Act?

Legal professional privilege

Legal professional privilege is a common law and statutory right which protects confidential communications between a lawyer and client from compulsory production in the context of court and similar proceedings: see Daniels Corp International Pty Limited v Australian Competition and Consumer Commissioner [2002] HCA 49; (2002) 213 CLR 543, at [9] (per Gleeson CJ, Gaudron, Gummow and Hayne JJ).
The statutory provisions are found in Division 1 of Part 3.10 of the Evidence Act 1995 (NSW) (Evidence Act) and the Tribunal has accepted that these are applicable in determining whether government information is privileged under cl 5 of Schedule 1 of the GIPA Act: Transport for NSW v Robinson [2018] NSWCATAP 123 at [43] and Colefax v Department of Education and Communities [2013] NSWADT 72 at [26]. The Tribunal has also noted that these provisions are effectively the same as under the common law of privilege.
As it is the client, who seeks the benefit of the protection of the disclosure of a 'confidential communication' arising from its lawyer/client relationship, it is the client (in this case the respondent) who bears the onus to establish that the communication in issue is privileged: Grant v Downs [1976] HCA 63; (1976) 135 CLR 674 at 689.
The existence of legal professional privilege is not established merely by the use of a verbal formula, or by mere assertion that privilege applies to particular communications: AWB Limited v Honourable Terence Rhoderic Hudson Cole (No 5) [2006] FCA 1234 at [44].
In AIN v Medical Council (NSW) [2015] NSWCATAP 241, the Appeal Panel emphasised the importance of agencies to adduce sufficient evidence to support a claim of privilege, especially with respect to communications of in-house lawyers.

The Evidence Act

Section 118 of the Evidence Act is concerned with legal advice privilege and provides: 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.
Section 119 of the Evidence Act deals with litigation privilege and provides: 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.
The words 'client' and 'lawyer' are defined in s 117(1) of the Evidence Act. In this case, there is no dispute that EML, as agent for the respondent, was responsible for dealing with the applicant's 2018 (as amended in 2019) further compensation claim. That is, the respondent is the client.
Nor is it disputed that the HWLE partner and special counsel are lawyers.
The term 'confidential communication' is defined in s 117(1) to mean: … [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.
The term 'confidential document' is also defined in s 17(1) to mean: … [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.
The word 'dominant purpose' is not defined in the Evidence Act. However, it has been interpreted to mean the 'ruling, prevailing, or most influential purpose' that predominates over other purposes and not the 'primary purpose' or 'substantial purpose' of the client or the lawyer: Archer Capital 4A Pty Ltd (atf Archer Capital Trust 4A) v Sage Group pic (No 2) [2013] FCA 1098; (2013) 306 ALR 384 (Archer) at [11].
As noted in Archer (supra), the purpose for which a communication (including a document) is brought into existence: 11 … [is] a question of fact that must be determined objectively, however evidence of the subjective purpose will be relevant and often decisive: Esso at [172]; Sydney Airports Corporation Ltd v Singapore Airlines Ltd [2005] NSWCA 47 at [6]. An appropriate starting point is to ask what was the intended use or uses of the document which accounted for it being brought into existence: Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122; (2004) 136 FCR 357 (Pratt) at [35].
In an earlier decision in AWB Limited v Honourable Terence Rhoderic Hudson Cole [2006] FCA 571 at [107], Young J said: 107 The authorities accept that an appropriate starting point when applying the dominant purpose test is to ask what was the intended use or uses of the document which accounted for it being brought into existence: see Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122; (2004) 136 FCR 357 at [35] per Finn J. I would add that where the document is immediately communicated by its author to several other persons, including the author's legal adviser, by a circular email (which is the case here), it is also important to ask what was the dominant purpose of that email communication.'
It is accepted that the concept of legal advice is fairly broad and not confined to telling the client the law - it includes what should prudently and sensibly be done in the relevant legal context, but does not extend to advice that is purely factual, commercial, operational, or administrative in nature: see General Manager, WorkCover Authority of NSW v Law Society (NSW) [2006] NSWCA 84 (WorkCover) at [77] and DSE (Holdings) PTY Ltd v Intertan Inc [2003] FCA 1191; (2003) 135 FCR 151 at [45].
In WorkCover, at [94] to [95], the Court of Appeal observed: 94 … [While], as I have earlier stated, it might be accepted that legal professional privilege can attach to communications made on the operation and application of laws, proposed laws and their drafting, it is essential to ensure, particularly in the government context, that the purpose for which a document was brought into existence was one which related to legal advice as opposed to operational, administrative or policy matters. As Lord Scott emphasised in Three Rivers (No 6) (at [38]) in order for privilege to apply advice must be given in "the relevant legal context". 95 In my view the Appeal Panel's statement (at [39]) concerning the administration of justice was an uncontroversial reference to the rationale of legal professional appeal (assisting and enhancing the administration of justice) to which the authorities refer. The Appeal Panel accepted (at [53]) that legal advice privilege could attach to advice given in connection with proposed laws and their drafting. It was not satisfied on its examination of the disputed documents, and in the context in which they were prepared, that the documents were given in that context or for such purposes.
Client legal professional privilege extends to information/advice that is of a non-legal character where that information/non-legal advice is connected to the giving of legal advice or pending or anticipated litigation. Client legal professional privilege also extends to the information in copies of unprivileged documents where the copy was brought into existence solely for use in obtaining legal advice, or for use in existing or apprehended litigation: Commissioner Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3; (1997) 188 CLR 501.

Is Professor Bolin's report a confidential document?

Professor Bolin's report is not marked as being confidential. Given the circumstances in which the report was prepared, I accept that the report is a confidential report, as it is about the personal information of the applicant, in particular her health information.
[NOT FOR PUBLICATION]

Did Dr Bolin's report come into existence for the dominant purpose of the respondent being provided legal advice or professional legal services in regard to anticipated legal proceedings?

Even where a client-lawyer professional relationship is found to exist, this does not mean that every communication between the lawyer (including the employed legal practitioner) and the client (including a government agency) is thereby privileged. It is only communications or documents that are confidential and made or prepared for the 'dominant purpose' of the lawyer (in his or her professional capacity) providing legal (professional) advice to the client, or for the dominant purpose of the client being provided with professional legal services relating to anticipated or pending litigation in which the applicant's employer is a or a potential party.
Whether Professor Bolin's report was made or prepared for the 'dominant purpose' of HMLE providing legal advice or professional legal services for anticipated or pending litigation is ultimately a question of fact to be objectively determined on the material before the Tribunal, including 'the subjective purpose' of the 'client': Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49; [1999] HCA 67 at [172].
In this application, the respondent asserts that the contents of Professor Bolin's report was prepared for the dominant purpose of it being provided with legal advice and professional legal services from HWLE. In support of this assertion, the respondent relies on the terms of the 'Legal Services Order' to HMLE, the written instructions HMLE gave to Professor Bolin and the contents of Professor Bolin's report.
I have carefully read the May 2019 instructions HMLE sent to Professor Bolin and the contents of his report. For the reasons set out below, I am not persuaded that these documents support the assertion that Professor Bolin's report was prepared for the dominant purpose of the respondent being provided with legal advice or professional legal services relating to an anticipated proceeding.
It is well established that in order to satisfy s 119 of the Evidence Act, the party who makes a claim for litigation privilege must establish that there is a real prospect of litigation, as opposed to it being more likely than not: Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority (2002) 4 VR 332; [2002] VSCA at [17].
[NOT FOR PUBLICATION]
In this application, the respondent has provided no evidence that, in May 2019, when HMLE wrote to Professor Bolin that there was a real prospect of litigation in regard to the applicant's secondary injury claim. Nor is this apparent from the terms of the letter HMLE sent, a few days earlier, to the applicant directing her to attend a pre-arranged appointment with Professor Bolin. These I note are steps taken in the course of an insurer assessing a compensation claim made by a worker under the WC Act and the WIMWC Act. Where the insurer disputes a worker's claim, the worker can bring proceedings in the Commission (at the relevant time the Workers Compensation Commission) and in some case the Compensation Court. In this case, at the time Professor Bolin was asked to assess the applicant, her secondary injury claim had only been recently made and there is no evidence of the respondent having undertaken any assessment of that claim, let alone dispute the claim.
On the material before the Tribunal, I have considerable difficulty in accepting that the respondent's engagement of HWLE is exclusively for the dominant purpose of it being provided with legal advice in respect of the applicant's compensation claims. Instead, having regard to the material before the Tribunal and the terms of the instructions provided to HMLE, in my view, the terms of HWLE's engagement was primarily administrative in nature, in that it was instructed to first and foremost undertake an assessment of the applicant's claim on behalf of the respondent (i.e. the insurer). That is, an assessment from a medical point of view as to the merits of the applicant's claim.
In my view, this is demonstrated in the pro-forma terms of the instructions to HMLE and in the correspondence HMLE sent to the applicant's solicitor. This is especially so in regard to the letter directing the applicant to attend the pre-arranged appointment with Professor Bolin. As I have noted, this letter does no more than cite what is contained in the relevant provisions of the WIMWC Act, including the applicant's right to request a copy of Professor Bolin's report.
As I have noted, HWLE wrote to Professor Bolin shortly thereafter, setting out the areas on which his expert opinion was being sought. That is, HWLE, having advised the applicant that she could request a copy of Professor Bolin's report, it is difficult to see how it could be claimed that the dominant purpose of his report was for HWLE to provide legal advice in regard to the applicant's claim. I accept that this might, in part, have been a purpose for the preparation of Professor Bolin's report. However, in my view, the dominant purpose of Professor Bolin's report was for the respondent to assess the applicant's secondary injury claim, in particular whether it was a claim validly made on medical grounds. Furthermore, it was an assessment that the respondent had instructed HMLE to obtain and not one that HMLE had advised, in its capacity of providing legal advice to the respondent, should be obtained. Furthermore, the respondent, through HMLE, expressly said it was a report the applicant could have a copy of.
Hence, in the absence of any evidence to the contrary, I find that the respondent has failed to establish that Professor Bolin's report was made for the dominant purpose of HWLE providing legal advice or legal professional services to the respondent. That is, I am not satisfied, on the material before the Tribunal that the information in Professor Bolin's report is privileged.
On the basis of my finding it is unnecessary to consider the remaining issues. However, I have done so in the event I am wrong in my findings.

Waiver of privilege

Section 122 of the Evidence Act sets out the circumstances where evidence can be adduced that the right of a client to make a claim privilege over a confidential communication is lost or waived.
The circumstances where privilege is lost or waived is set out in s 122(1) to (4). In summary they are where the client, in whom the right to claim privilege, has: 1. consented to the disclosure of the confidential communication, or 2. 'acted in a manner that is inconsistent with' that right by knowingly and voluntarily having disclosed the substance of the communication to another person, or the substance of the communication has been disclosed with the express or implied consent of the client: see also Mann v Carnell (1999) 201 CLR 1; [1999] HCA 86 at [29].
Section 122(5) prescribes a number of circumstances where a client is not taken to have 'acted in a manner inconsistent' with the client's right to claim privilege over the confidential communication. That section relevantly provides as follows (italics added): (5) A client or party is not taken to have acted in a manner inconsistent with the client or party objecting to the adducing of the evidence merely because - (a) the substance of the evidence has been disclosed - (i) in the course of making a confidential communication or preparing a confidential document, or … (b) of a disclosure by a client to another person if the disclosure concerns a matter in relation to which the same lawyer is providing, or is to provide, professional legal services to both the client and the other person, or (c) of a disclosure to a person with whom the client or party had, at the time of the disclosure, a common interest relating to the proceeding or an anticipated or pending proceeding in an Australian court or a foreign court.
In my opinion, the contentions of the applicant do not satisfy any of the abovementioned circumstances giving rise to a waiver of privilege by the respondent. The fact that Professor Bolin may have discussed some matters with the applicant relevant to her secondary injury claim does not mean that there has been a disclosure of the information that is in the report.

Cl 41 of WC Reg

In my opinion, cl 41 of the WC Reg is of no relevance to the matters in issue in this application. The existence of a statutory obligation on employers and insurers to provide medical reports in their possession to workers does not override any claim of privilege an employer or insurer makes in regard to information the subject of an access application under the GIPA Act.
While the obligation under cl 41 may be a matter an employer or insurer may decide to take into consideration when considering a waiver over information for which privilege is claimed, cl 5(2) of Sch 1 of the GIPA Act, makes it clear this is not a decision over which the Tribunal has any jurisdiction.
I make a similar finding in regard to the Standards of Practice issued by SIRA.

Conclusions and orders

For the reasons set out above, I am not satisfied that the respondent has established that its decision is the correct and preferable decision. On that basis the appropriate order is to set aside the decision of the respondent and, as no other overriding public interest against disclosure grounds are relied on by the respondent, an order that the applicant be granted access to the information sought.
Hence, I make the following order: 1. The decision of the respondent, made on 8 September 2020, to refuse the applicant access to the medical report of Professor Bolin is set aside and in substitution of that decision a decision is made to grant the applicant access to the information in that report.

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: 21 October 2021

Self Insurance Corporation Act 2004(NSW)

Workers Injury Management and Workers Compensation Act 1988(NSW)

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