Kumari v Insurance and Care NSW

(a) to act for the Workers Compensation Nominal Insurer established under section 154A of the Workers Compensation Act 1987; and

(b) 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.

1. One relevant authority to which icare provides services is the NSW Self-Insurance Corporation ("SiCorp"), which administers the Treasury Managed Fund ("TMF"). The TMF is a self-insurance scheme created by the NSW government in respect of NSW government agency risk.
2. Allianz Australia Insurance Ltd ("Allianz") has been appointed to provide insurance services and claims management services on behalf of icare and SiCorp for workers compensation claims of government employees which are covered by the TMF.
3. In 2022, the Applicant lodged a workers compensation claim against her employer, NSW Treasury. The claim is managed by Allianz.
4. In July 2024, the Respondent received an access application under the GIPA Act on behalf of the Applicant. The access application related to the management of her workers compensation claim. The access application requested the following:

1. Please provide a copy of the factual investigation report initiated or facilitated or conducted by Allianz Australia Insurance Ltd, for which the statement was taken by Investigator in June 2022.

2. Please provide details of all investigations that were initiated, facilitated, or conducted by Allianz with respect to Ms Kumari's claim.

3. Please provide details of all surveillance initiated, facilitated, or contributed by Allianz, including the reports.

4. Please provide the contract between Insurance and Care NSW and Allianz Australia Workers' Compensation (NSW) Limited for the provision of Nominal Insurer Workers Compensation Claims and Injury Management Services, which has been in effect since 2021.

1. In a Notice of Decision dated 9 August 2024, the Respondent decided:

Under section 58(1)(a) of the GIPA Act, to provide access to some information;

Under section 58(1)(b) of the GlPA Act, that some of the information is not held by the agency;

Under section 58(1)(c) of the GIPA Act, that some of the information is already publicly available; and

Under section 58(1)(d) of the GIPA Act, to refuse to provide access to some of the information.

1. The Applicant requested in internal review of the original decision in September 2024. Pursuant to section 84 of the GIPA Act, an internal review is to be done by making a new decision, as if the decision being reviewed had not been made.
2. The internal reviewer noted:

I have interpreted Categories 2 and 3 to be a request for:

· Specific investigative reports (and/or related information) that were initiated, facilitated, or conducted by Allianz with respect to Ms Kumari's claim.

· Specific surveillance reports (and/or related information) initiated, facilitated, or contributed by Allianz, including the reports.

1. Searches were undertaken to locate information that falls within the scope of the access application. The internal reviewer also consulted with NSW Treasury, the Applicant's employer, in accordance with sections 54 and 54A of the GIPA Act. NSW Treasury have objected to the release of some of the requested information on the basis of legal privilege.
2. The internal review concluded:

· Under Section 58(1)(a) of the GIPA Act, to provide access to some information.

· Under section 58(1)(b) of the GIPA Act, that some of the information is not held by the agency,

· Under section 58(1)(c), that some of the information is already available to you/your client, and

· Under Section 58(1)(d) of the GIPA Act, to refuse to provide access to some information as there is an overriding public interest against its disclosure.

1. In relation to item 1 of the access application, the Respondent identified seven documents as falling within the scope of the request. NSW Treasury was consulted, and it objected to the release of documents. The Respondent decided to refuse access to these documents on the basis that the documents were subject to a claim of legal professional privilege and that it was to be conclusively presumed that there was an overriding public interest against their disclosure. The Respondent determined that it would not be appropriate to waive privilege over those documents.
2. The Respondent subsequently determined to provide two of those documents to the Applicant in redacted form.
3. In relation to item 2 of the access application, the Respondent identified three medical reports as falling within the scope of the request. The Respondent decided to grant access to those documents.
4. In relation to item 3 of the access application, the Respondent did not identify any information as falling within the scope of the request.
5. In relation to item 4 of the access application, the Respondent decided that the information was already available to the Applicant because it was publicly available on a website.

1. The Applicant filed her application for review in November 2024. The application states:

I am seeking a review of the decision on the following grounds:

To refuse to give access to information because of an overriding public interest against disclosure;

to provide access or to refuse to provide access to the information in response to an access application;

that the information applied for is already available to the applicant;

a decision that government information is not held by the agency;

a decision to provide access to information in a particular way in response to an access application (or a decision not to provide access in the way requested by the applicant), actions and decisions of stakeholders involved in a workers' compensation claim that do not align with their legal obligations.

1. I understand that the Applicant no longer presses most of the application. However, the Applicant presses the application for access to the information that is the subject of a claim of legal professional privilege.

1. The matter came before me for hearing on 17 April 2025. Mr Thakur appeared for the Applicant and Mr Carvosso appeared for the Respondent. Each party provided written and oral submissions. The Respondent also relies on the affidavit of Mr Peter Love, a Team Manager with Allianz Insurance who managed the Applicant's Workers' Compensation claim.

1. As noted, the Respondent identified seven documents as falling within the scope of the request that it determined were subject to a claim of legal professional privilege. The Respondent subsequently found that two of the seven documents had been provided to the Applicant in unredacted form in April 2023. It had therefore waived privilege over those two documents. It is common ground that Tribunal should vary the reviewable decision to reflect the fact that the documents were provided to the Applicant in redacted form. I agree with that position.
2. The remaining issue for determination is whether the correct and preferable decision is that there is a conclusive presumption of an overriding public interest against disclosure of the withheld information. This requires consideration of the Respondent's claim that legal professional privilege attaches to the five remaining withheld documents.

1. The GIPA Act provides for the informal and formal release of government information. The Act provides various mechanisms for the operation of these provisions as well as a series of guiding principles / objects.
2. The objects of the GIPA Act are as follows:

(1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by:

(a) authorising and encouraging the proactive public release of government information by agencies, and

(b) giving members of the public an enforceable right to access government information, and

(c) providing that access to government information is restricted only when there is an overriding public interest against disclosure.

(a) that this Act be interpreted and applied so as to further the object of this Act, and

(b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.

1. Senior Member Higgins provided a useful outline of the approach taken under the GIPA Act in Fadlallah v Insurance and Care NSW [2021] NSWCATAD 304 ("Fadlallah") at paragraphs [5] - [8]:

5 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'.

6 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'.

7 Section 13 of the GIPA Act defines what is meant by the term 'overriding public interest against disclosure' as follows:

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.

8 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.

1. The GIPA Act also provides a number of provisions which allow an agency to refuse to provide access to the requested information. Section 14(1) of the GIPA Act sets out a conclusive presumption that there is an overriding public interest against disclosure of any of the government information listed in Schedule 1 of the GIPA Act. A conclusive presumption applies to information that is privileged by reason of legal professional privilege. Clause 5 of Schedule 1 provides:

(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.

1. Unlike information for which public interest considerations against disclosure are claimed, material for which a conclusive presumption is maintained is not assessed or weighted for consideration of release but rather assessed as to whether it meets the definition of the conclusive presumption descriptor. If such information is assessed as meeting that description, then no further assessment or weighting occurs, and the material is withheld at that point.
2. Section 97 of the GIPA Act places the onus of establishing the claim for legal professional privilege on the Agency.
3. Section 107 of the GIPA Act sets out the process governing how the Tribunal is to deal with information that is subject to an overriding public interest against disclosure. In particular, the Tribunal is to ensure that it does not, in the reasons for its decision or otherwise, disclose any such information. It must receive and hear argument in the absence of the public and the Applicant if it is of the opinion that this is necessary to prevent the disclosure of information for which there is an overriding public interest against disclosure. In the present matter, a confidential session was held in the absence of the Applicant.
4. Senior Member Riordan considered the legal professional privilege conclusive presumption recently in Brazel v Sydney Water Corporation [2025] NSWCATAD 15 at paragraphs [31] - [34] of her decision:

31 Clause 5 of Sch 1 of the GIPA Act provides that it is 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.

32 The relevant test to be applied in determining client legal privilege and waiver is set out in ss 118 and 119 of the Evidence Act 1995 (NSW) (the Evidence Act). In CHU Underwriting Pty Ltd v Hunter Water Corporation [2018] NSWCATAD 273, the Tribunal observed that the general provisions relating to the existence of legal professional privilege in the GIPA Act are that the material:

(1) Must be made in the context of a client and lawyer relationship;

(3) Was brought into existence for the dominant purpose of either:

(a) Assisting the client in obtaining, or the lawyer to give or provide to the client, legal advice or services; or

(b) For use in either existing or proposed or contemplated legal proceedings.

33 In Battin v University of New England [2013] NSWADT 73, the Administrative Decisions Tribunal observed that a "dominant purpose" is one that predominates over other purposes, it is the prevailing or paramount purpose and when applying the public interest test an appropriate starting point is to ask - what was the intended use or uses of the document that accounted for it being brought into existence?

34 This issue must be considered objectively, taking into account the substance of the matter, having regard to the content, context and evidence, as well as the form of the documents. In determining whether materials were brought into existence for the dominant purpose of assisting the client in obtaining legal advice or services, the concept is to be understood broadly and in a pragmatic sense and it is not confined to a lawyer telling a client the law. It must also include advice as to what should prudently and sensibly be done in the relevant legal context and if the document would have been prepared regardless of the intention to obtain legal professional services, the test will not be satisfied: Holman v Warringah Council [2015] NSWCATAD 215 at [86].

1. Section 118 of the Evidence Act 1995 provide:

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.

1. In Battin v University of New England, Judicial Member Molony observed at paragraph [35]:

When applying the dominant purpose test 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 per Finn J v; AWB v Cole [2006] FCA 1234 per Young J at [44].

1. Legal Professional Privilege is not established by the mere assertion that the privilege applies to a particular communication. Simply to label a document as being "prepared for legal advice" or as "privileged" or as being "without prejudice" is of itself insufficient to justify the privilege. It is necessary to consider objectively whether the information was privileged. This takes account of the substance of the matter, having regard to the content, context and evidence as well as the form of the documents.
2. For the purposes of legal professional privilege at common law, the description of a client includes an agent of the client: Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122; (2004) 136 FCR 357 At paragraph [1] Finn J, (with whom Merkel J agreed) stated:

It is equally well accepted that if a person directs or authorises a third party (an agent) to prepare and then make a documentary communication on that person's behalf to a legal adviser for the dominant purpose of obtaining legal advice, that documentary communication by the agent attracts legal professional privilege: Australian Rugby Union Ltd v Hospitality Group Pty Ltd [1999] FCA 1061; (1999) 165 ALR 253.

1. The party claiming that a document is privileged must show the dominant purpose for which the document came into existence. In this regard, the Respondent relies on the evidence of Mr Love who is responsible for managing, guiding and providing technical advice to Allianz Insurance case managers regarding the management of workers compensation claims. In his affidavit, Mr Love explained:

Upon Allianz being notified of a psychological injury claim being made, Allianz may engage lawyers to provide legal advice. That is because psychological injury claims tend to raise complex questions as to the proper application of workers compensation legislation. Lawyers provide legal advice regarding questions of liability, as well as advice and assistance regarding the strategic management of claims and engagement of investigative and other services.

icare NSW has appointed a panel of legal firms who may be engaged by Claims Managers for the purpose of providing legal advice and services in connection with workers compensation claims. Allianz can only engage lawyers from this panel. Hall & Wilcox Lawyers is one of the firms on that panel.

Where a new claim for psychological injury has been made, the case manager to whom it is allocated may make preliminary contact with a law firm to ascertain their availability to take instructions with respect to the claim. The contact may be by way of a phone call, or email. In other cases, an employer of a claimant may express a preference as to which law firm should be engaged.

If the firm is able to take the instructions, the formal engagement of lawyers takes place via the Legal Panel Gateway (LPG), a portal administered by the NSW government for the procurement and management of legal service providers. Allianz confirms instructions via LPG and submits documents relating to the engagement via the portal.

As part of the engagement process, Allianz requests that the firm complete a "Program", which confirms certain key terms of the engagement. In my experience, it often takes a few business days after engagement of the firm via the LPG for the Program to be provided by the firm.

Allianz is the relevant client contact when communicating with lawyers regarding the management of workers compensation claims. Allianz is responsible for the initial engagement and manages all communications with lawyers over the course of the claim.

As Allianz is managing claims on behalf of icare NSW, icare NSW may also be included on occasion in correspondence between Allianz and lawyers. icare NSW also has a right to immediate access to any such correspondence, as it does for all documents held by Allianz in the exercise of its claims management functions as agent for icare NSW. Those documents can be accessed by icare NSW through the LPG.

It is my experience that claims management staff and employer representatives understand that communications with lawyers are confidential, and that this confidentiality is maintained as a matter of both practice and policy. Legal advice and other legal communications are usually marked with some indication of their privileged or confidential status. Such communications are only disclosed to those within Allianz and the employer who are directly involved in the management of a particular claim. Legal advice and communications are not provided or disclosed to the claimant, or any other person.

As part of its management of a workers compensation claim, Allianz will instruct external service providers to carry out factual investigations related to the claim. This occurs because Allianz is itself unable to make direct contact with witnesses to provide statements or information concerning the events which led to the alleged psychological injury. In some circumstances, an employer may request that Allianz engage an investigator to carry out a particular form of investigation.

icare NSW maintains a panel of firms who may be engaged by Claims Managers for the purpose of carrying out investigations in connection with workers compensation claims. Allianz can only engage investigators from this panel. NHN Group is one of the firms on that panel.

Instructions to carry out factual investigations may be issued by Allianz itself, or by the lawyers engaged to advise with respect to the relevant claim. Where Allianz provides instructions directly, it issues a formal "Request for Investigation" which sets out the scope, timeframe and deliverables of the engagement.

In my experience, an investigator's factual investigations report is used to inform the advice that is given to Allianz by the lawyers engaged in respect of the claim. Where lawyers have received a factual investigation report directly from the investigator, they typically provide a copy to Allianz immediately, while also conducting their own review in parallel and providing an updated advice on liability which takes into account the findings of the report.

It is my experience that claims management staff and employer representatives at Allianz understand that reports provided by third-party investigators are to be treated as confidential, and that this confidentiality is maintained as a matter of both practice and policy.

Before any decision on liability has been made with respect to a workers compensation claim, Allianz's policy is that factual investigation reports are only disclosed to those within Allianz and are not provided or disclosed to the claimant or any other person. In my experience this policy is strictly implemented.

If Allianz has decided to dispute liability with respect to a particular workers compensation claim, it is under a statutory obligation to provide a claimant with a copy of any investigator's report obtained in connection with the claim (see cl 41 of the Workers Compensation Regulation 2016 and $ 73 of the Workplace Injury Management and Workers Compensation Act 1998). However, in circumstances (such as the applicant's) where Allianz has accepted liability in respect of a claim, there is no legal obligation to disclose a relevant factual investigation report. In those cases, Allianz's policy is not to disclose a factual investigation report to the claimant or any other person, and in my experience this policy is strictly implemented.

1. Mr Love confirmed that the withheld information comprises a factual investigation report dated 16 July 2022, and a supplementary factual investigation report dated 20 July 2022. Both reports were prepared by NHN Group in respect of the Applicant's workers compensation claim. The 16 July 2022 investigation report includes:
   • the investigator's findings;
   • the Applicant's 2022 Witness Statement based on responses given in an interview with an NHN Group investigator;
   • attachments to the 2022 Witness Statement;
   • a written and signed statement of a separate witness in relation to the Applicant's claim; and
2. Both the 16 July 2022 investigation report and the 20 July 2022 supplementary report are addressed to Hall & Wilcox.
3. It is submitted that the client-lawyer relationship is clear. At all relevant times, Allianz was acting as agent for the Respondent. By a Legal Services Order dated 6 June 2022, Allianz instructed Hall & Wilcox to provide advice in relation to the Applicant's claim. A copy of the Legal Services Order form reflecting the terms of the engagement is annexed to Mr Love's affidavit.
4. By letter dated 8 June 2022, Hall & Wilcox requested NHN Investigations to conduct a factual investigation into the Applicant's claim. The letter of engagement included instruction. A copy of the Hall & Wilcox letter to NHN Investigations is annexed to Mr Love's affidavit.
5. In an email dated 9 June 2022, Hall & Wilcox provided Allianz with a copy of their program in relation to the matter which included the following details:

Scope of instructions To provide advice on lability and claims strategy and to Instruct In a factual investigation.

Issues and risks The key Issue Is whether the claimed Injury Is compensable.

Deliverables Program, Initial Advice, Factual investigation Referral and Update Advices as required

1. A copy of the Hall & Wilcox email to Allianz is annexed to Mr Love's affidavit.
2. As noted above, Mr Love confirmed that the Respondent's staff understand and maintain confidentiality. Legal advice and other legal communications are only disclosed to those who are directly involved in the management of a particular claim. Similarly, reports provided by third-party investigators are treated as confidential.
3. The Respondent submits that the Investigation Report and Supplementary Investigation Report are confidential documents prepared for the dominant purpose of lawyers at Hall & Wilcox providing Allianz with legal advice concerning the Applicant's workers compensation claim. That means that each is privileged from production under section 118 of the Evidence Act.
4. The Respondent has determined that it would not be appropriate to waive privilege over the withheld information.
5. The Respondent seeks an order varying the Internal Review Decision to reflect that two of the documents are already available to the Applicant in unredacted form. Otherwise, the Respondent submits that the Tribunal should affirm the Internal Review Decision.

1. The Applicant contends that legal professional privilege does not apply to the withheld information. She says that the role played by Alliance was purely administrative and therefore it is a mischaracterisation of the legal status of the documents as being subject to legal professional privilege.
2. The Applicant referred to the Respondent's website that refers to the purpose of investigations. It states:

Factual investigations involve the use of a third-party service provider to determine the facts surrounding an injury or incident in the workplace. They are typically used to:

(1) gather information around an incident where there is unclear or limited information available

(2) clarify that you meet the legislative definition of a worker.

Factual investigations may be used to gather information to inform decision-making with respect to liability and other entitlements.

1. The Applicant submits that a document, such as a factual investigation report, is only protected by legal professional privilege if it was created for the dominant purpose of obtaining legal advice or for litigation preparation. She contends that in the present case, the factual investigation report at issue was not created for such purposes.
2. Rather, she submits that these reports are used to gather factual information relevant to the administrative decision-making process concerning the liability and entitlement determinations, rather than for the purpose of providing legal advice or preparing for litigation. She relies on the views of Senior Member Higgins in In Fadlallah at paragraphs [65] - [66].

65. 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].

66. 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.

1. In General Manager, WorkCover Authority of NSW v Law Society (NSW) [2006] NSWCA 84 the Court of Appeal observed at paragraph [94]:

94 ... 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. ... in order for privilege to apply advice must be given in "the relevant legal context".

1. The Applicant further submits that the lawyers at Hall & Wilcox were assisting in the claim management process and not providing legal advice. Assisting with the claims management process is fundamentally an administrative function. The mere involvement of a legal advisor in the process does not alter the primary purpose for which the report was generated and routing it through a lawyer does not automatically confer privilege. In this matter, the process was to inform the insurer's administrative decision-making, rather than to seek or provide legal advice.

1. The Respondent submitted that the dominant purpose for which each of the withheld documents was prepared will be apparent from a review of each of the documents.
2. I have taken the opportunity to review each of the documents. I agree with the Respondent that it is apparent from the face of the documents that each was created for the dominant purpose of providing legal advice.
3. Having viewed the documents, I am satisfied that each document was prepared for the dominant purpose of lawyers at Hall & Wilcox providing Allianz with legal advice concerning the Applicant's workers compensation claim. In the circumstances, Allianz was an agent for the Respondent and provided services on behalf of the Respondent.
4. In the present matter I am satisfied that the information:

(1) was made in the context of a client and lawyer relationship;

(3) was brought into existence for the dominant purpose of Hall & Wilcox providing Allianz, as agent for the Respondent, with legal advice.

1. As noted, clause 5(1) of Schedule 1 of the GIPA Act provides that 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. I am satisfied that the Respondent has not waived privilege in relation to the withheld information.
3. I agree with the Respondent that there is an overriding public interest against disclosure of each of the withheld documents as a consequence of the application of clause 5(1) of Schedule 1 of the GIPA Act. It follows that, with the exception of the two documents that are already available to the Applicant in unredacted form, as discussed in paragraph [20] of these reasons, the decision under review is the correct and preferable decision.

1. The decision under review is varied to reflect that two of the withheld documents are already available to the Applicant in unredacted form.

2. The decision under review is otherwise affirmed.

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.