McMullen v Insurance and Care NSW

Applicant's right to information

1. The GIPA Act gives members of the public an enforceable right to access government information, subject to the provisions of that Act. That right is given for the stated object of maintaining and advancing "a system of responsible and representative democratic Government that is open, accountable, fair and effective" (s 3(1)(b) of the GIPA Act).
2. A person who makes an access application for government information has a "legally enforceable right to be provided with access to the information" (s 9(1) of the GIPA Act). Access applications are to be dealt with in accordance with Part 4 of the GIPA Act.
3. An agency may determine an access application under the GIPA Act in a number of ways, as relevantly set out in s 58(1). It may decide to refuse to provide access to information because there is an overriding public interest against disclosure of the information (s 58(1)(d)).
4. There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure (s 5 of the GIPA Act). There is a general public interest in favour of the disclosure of government information (s 12(1) of the GIPA Act). However, the right to access will not be available where "there is an overriding public interest against disclosure of the information" (s 9 of the GIPA Act).
5. There is an overriding public interest against disclosure of government information for the purposes of the GIPA 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 (s 13 of the GIPA Act). It is, however, to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1 of the GIPA Act (s 14(1) of the GIPA Act). Whether or not there is a conclusive presumption against disclosure is in issue in the present matter.
6. The power of the Tribunal to review a decision arises where a person is aggrieved by a "reviewable decision" of an agency. Such a person may apply to the Tribunal for administrative review under the Administrative Decisions Review Act 1997 (NSW) ("Administration Act") of that decision (s 100 of the GIPA Act).
7. What are "reviewable decisions" of an "agency" is set out in s 80 of the GIPA Act. They include a decision to refuse to provide access to information in response to an access application (s 80(d) of the GIPA Act).
8. There is no dispute that the Respondent is an "agency" within the meaning of the GIPA Act.
9. An agency has, therefore, made a "reviewable decision" within s 80 of the GIPA Act, the agency being the Respondent and the "reviewable decision" being a decision to refuse to provide access to information.
10. The Tribunal under s 63 of the Administration Act is to determine the matter, based on the material before it, including any relevant factual material and any applicable written or unwritten law. It must decide what is the correct and preferable decision. It may decide to affirm, vary or set aside the decision and make a substitute decision, or set aside the decision and remit the matter to the agency in accordance with any directions or recommendations of the Tribunal.
11. The provisions of the GIPA Act referred to above apply where the Applicant has made a valid "access application" seeking "government information". It is not in dispute that the Applicant made an "access application" under Part 4 of the GIPA Act and that the information requested was "government information" (see definition of these terms in s 4 of the GIPA Act). In these circumstances, that the Applicant had made a valid access application was not disputed.
12. The Respondent has the onus of establishing that the decision it has made is justified (s 105(1) of the GIPA Act).

Consideration

1. The question for determination by the Tribunal is whether, as the Respondent submits, it is to be conclusively presumed that there is an overriding public interest against disclosure of the information the Applicant seeks. That presumption applies to relevant government information described in Schedule 1 of the GIPA Act 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".
2. It is well accepted that communications between a solicitor and client for the dominant purpose of the provision of legal advice is subject to legal professional privilege (AWB Limited v Honourable Terence Rhoderic Hudson Cole (No 5) [2006] FCA 1234). This proposition was not disputed. What was disputed was whether, in fact, the communications in the documents in question were for the dominant purpose of the provision of legal advice.
3. A claim of privilege can be established by evidence about the circumstances surrounding the communications as well from the documents the subject of the claim and retainer itself (In the matter of Southland Coal Pty Ltd (rec and mgrs apptd)(in liq) [2006] NSWSC 899, at [28]).

Can legal professional privilege be claimed?

1. The Applicant submits that legal professional privilege is not applicable to the documents identified by the Respondent as being subject to a claim for legal professional privilege. She submits that the dominant purpose of the communications in question was not the provision of legal advice but for the insurer to conduct routine claims administration and liability assessment, in the ordinary course of its business. She also submits that legal advice was sought prematurely.
2. The term "legal advice" has generally been accepted to include advice as to what should prudently and sensibly be done in the relevant legal context. The advice must relate to matters of law. That purpose is construed broadly. In General Manager, WorkCover Authority of NSW v Law Society of NSW [2006] NSWCA 84, the Court of Appeal said, at [77]: "The scope of the proposition that privilege is not lost if a communication from a lawyer containing legal advice also contains extraneous matter was considered in Balabel v Air India [1988] Ch 317. That case concerned the question whether legal advice privilege extended only to communications seeking or conveying legal advice, or to all that passes between solicitor and client on matters within the ordinary business of a solicitor. Taylor LJ (with whom the Master of the Rolls, Lord Donaldson and Parker LJ agreed) said (at 330) that: "... [T]he purpose and scope of the privilege is still to enable legal advice to be sought and given in confidence...the test is whether the communication or other document was made confidentially for the purposes of legal advice. Those purposes have to be construed broadly. [L]egal advice is not confined to telling the client the law; it must include advice as to what should prudently and sensibly be done in the relevant legal context."
3. The Court of Appeal went on to say, at [79]: "Lord Scott of Foscote (with whom Lord Rodger of Earlsferry (at [49]) and Baroness Hale of Richmond (at [61]) agreed) examined the development of legal advice privilege and the policy reasons for its retention. After referring (at [30] - [33]) to authorities in England, the United States, Australia and New Zealand dealing with the principles underlying legal professional privilege, his Lordship said (at [34]): "None of these judicial dicta tie the justification for legal advice privilege to the conduct of litigation. They recognise that in the complex world in which we live there are a multitude of reasons why individuals, whether humble or powerful, or corporations, whether large or small, may need to seek the advice or assistance of lawyers in connection with their affairs; they recognise that the seeking and giving of this advice so that the clients may achieve an orderly arrangement of their affairs is strongly in the public interest; they recognise that in order for the advice to bring about that desirable result it is essential that the full and complete facts are placed before the lawyers who are to give it; and they recognise that unless the clients can be assured that what they tell their lawyers will not be disclosed by the lawyers without their (the clients') consent, there will be cases in which the requisite candour will be absent ... the dicta to which I have referred all have in common the idea that it is necessary in our society, a society in which the restraining and controlling framework is built upon a belief in the rule of law, that communications between clients and lawyers, whereby the clients are hoping for the assistance of the lawyers' legal skills in the management of their (the clients') affairs, should be secure against the possibility of any scrutiny from others, whether the police, the executive, business competitors, inquisitive busybodies or anyone else (see also paras 15.8 to 15.10 of Zuckerman's Civil Procedure(2003) where the author refers to the rationale underlying legal advice privilege as 'the rule of law rationale'). I, for my part, subscribe to this idea. It justifies, in my opinion, the retention of legal advice privilege in our law, notwithstanding that as a result cases may sometimes have to be decided in ignorance of relevant probative material." … He concluded (at [35]) that "[l]egal advice privilege should ... be given a scope that reflects the policy reasons that justify its presence in our law" and (at [36]) that "legal advice privilege must cover also advice and assistance in relation to public law rights, liabilities and obligations"".
4. The Court of Appeal also indicated some limits on the reach of legal professional privilege, saying, at [81]: "Lord Scott emphasised (at [38]) Taylor LJ's statement in Balabel (at 330) "[t]hat there must be a 'relevant legal context' in order for the advice to attract legal professional privilege ..." He also described as "plainly correct", Taylor LJ's statement (at 331) that: "... to extend privilege without limit to all solicitor and client communication upon matters within the ordinary business of a solicitor and referable to that relationship [would be] too wide." He then said: "If a solicitor becomes the client's 'man of business', and some solicitors do, responsible for advising the client on all matters of business, including investment policy, finance policy and other business matters, the advice may lack a relevant legal context. There is, in my opinion, no way of avoiding difficulty in deciding in marginal cases whether the seeking of advice from or the giving of advice by lawyers does or does not take place in a relevant legal context so as to attract legal advice privilege. In cases of doubt the judge called upon to make the decision should ask whether the advice relates to the rights, liabilities, obligations or remedies of the client either under private law or under public law. If it does not, then, in my opinion, legal advice privilege would not apply. If it does so relate then, in my opinion, the judge should ask himself whether the communication falls within the policy underlying the justification for legal advice privilege in our law. Is the occasion on which the communication takes place and is the purpose for which it takes place such as to make it reasonable to expect the privilege to apply? The criterion must, in my opinion, be an objective one."
5. The main principles set out in the cases governing legal professional privilege relevant to the present circumstances can be summarised as follows: 1. a communication or other document the subject of a claim for legal professional privilege must be made confidentially for the purposes of legal advice 2. those purposes have to be construed broadly 3. whether privilege applies should be determined having regard to what should prudently and sensibly be done in the relevant legal context 4. the justification for legal professional privilege is not limited to the conduct of litigation 5. a question to be asked is whether the advice relates to the rights, liabilities, obligations or remedies of the client, either under private law or under public law 6. if the advice goes to matters of business, including investment policy, finance policy and other business matters, the advice may lack a relevant legal context.
6. It has been accepted that the provisions of the Evidence Act 1995 (NSW) ("Evidence Act") governing legal professional privilege are applicable to the determination of whether government information is privileged and to clause 5 of Schedule 1 of the GIPA Act. This includes the provisions set out s 118 applying to legal advice and s 119 applying to litigation. The "dominant purpose" test must be satisfied both under s 118 and 119. The Tribunal has observed that these provisions are effectively the same as under the common law of privilege (Transport for NSW v Robinson [2018] NSWCATAP 123, at [43]; Colefax v Department of Education and Communities [2013] NSWADT 75, at [26]; Fadlallah v Insurance and Care NSW [2021] NSWCATAD 304, at [63]).
7. The documents the subject of these proceedings were provided to the Tribunal on a confidential basis. To the extent that the documents I have reviewed comprises of correspondence from the insurer to solicitors, I find that the correspondence was created for the dominant purpose of seeking legal advice. Where the correspondence in question is from the solicitors to the insurer, I find that it was created for the dominant purpose of providing legal advice. That conclusion also applies to specific documents drafted by the solicitors for review by the insurer, including draft notices and correspondence. I reach this conclusion based on what the documents themselves do on their face and the circumstances surrounding the retainer of the solicitors. Those circumstances include evidence of the Respondent's processes, which required the obtaining of legal advice when dealing with claims.
8. It follows that at least the provisions of s 118 of the Evidence Act and the related common law principles apply to protect the correspondence in dispute. The documents on their face do not relate to the management of the Applicant's claim as their dominant purpose but obtaining and providing legal advice. Even if the solicitors were otherwise involved in managing the Applicant's claim, I do not find that the dominant purpose of the documents in dispute could be described as managing the claim.
9. I accept that the Applicant has an interest in accessing the documents withheld by the Respondent in this matter, relating as they do to her claim for workplace injury. However, where rules of legal professional privilege operate to prevent access, despite the Applicant's genuine interest in accessing those documents, the Respondent may withhold disclosure. Protections of this kind are, as the Courts have said, necessary in our society, "a society in which the restraining and controlling framework is built upon a belief in the rule of law", even if the outcome is to prevent citizens from obtaining information in which they otherwise have a genuine interest.
10. Where the Respondent was copied on correspondence, I do not consider that the circumstances prevent a claim for legal professional privilege. Evidence is adduced in this regard that a relationship answering the characteristics of agency existed between the insurer as agent and the Respondent as principal.
11. As to the Applicant's submission that the legal advice sought was premature, I do not find anything in the evidence to indicate that the time at which advice was sought from solicitors prevents or precludes a claim for legal professional privilege. I find no basis, in particular, for a finding that early engagement of solicitors for the provision of legal advice indicates a purpose other than obtaining legal advice. The principles governing legal professional privilege are not so restrictive as to prevent a party from seeking legal advice, even at an early stage of a matter before it becomes a dispute. Solicitors were engaged at a time when the Applicant had already made her claims of injury.
12. 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]). I do not find that the description of the correspondence in question as being subject to privilege, is determinative of the matter. However, it remains relevant.
13. The Applicant's submission that the purpose of the communications between the solicitor and the insurer was not for the dominant purpose of the provision of legal advice, in part, turns on the scheme under which insurers deal with claims and take legal advice in relation to claims. That scheme is set out in the Workers Injury Management Workers Compensation Act 1998 (NSW) and the Workers Compensation Regulations 2016 (NSW).
14. Schedule 6 of the Workers Compensation Regulations 2016 sets out a scheme for costs in compensation matters. It sets out maximum costs. It contemplates "the provision of written advice at the request of the insurer before the issue of a decision notice" (Item F of Table 3 in Part 2). To the extent that the Applicant claims that advice was sought prematurely, Schedule 6 does not provide support for that proposition, in that it contemplates advice before a decision notice is given. I do not, in the circumstances, find that the Respondent's claim for legal professional privilege can be impugned on the basis of any restrictions placed by Schedule 6 on the Respondent's ability to obtain legal advice, including when that legal advice may be sought.
15. The Applicant relies on the decision of the Tribunal in Fadlallah v Insurance and Care NSW [2021] NSWCATAD 304. In that case, the question was whether a medical report was privileged. In this case, Higgins SM said, at [76]-[78]: "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".

1. The Tribunal found that whether the medical report in question was made or prepared for the dominant purpose of legal advice, or whether professional legal services received were for anticipated or pending litigation, is ultimately a question of fact to be objectively determined. On the particular facts, the Tribunal found that the relevant medical report was not prepared for the dominant purpose of the Respondent being provided with legal advice and did not relate to an anticipated proceeding. There was no evidence of a real prospect of litigation. The relevant steps were taken in the course of an insurer assessing a compensation claim.
2. The Tribunal went on to find that the terms of the solicitor's engagement was primarily administrative in nature, in that it was conducted to first and foremost undertake an assessment of the applicant's claim on behalf of the respondent in that case. The relevant letter of instruction included reference to the applicant's right to request a copy of the medical report.
3. The subject matter of the current proceedings is not a medical report or a document produced in circumstances where the Applicant had a right to obtain a copy of the relevant document. The documents in dispute are correspondence between the insurer and solicitors. They were not created to manage the Applicant's claim but for the dominant purpose of legal advice. The circumstances arising in Fadlallah are therefore distinguishable from the facts presently at hand.

Has there been a waiver of legal professional privilege?

1. The Applicant submits that there has been an implied waiver of privilege. The Applicant refers to the degree to which the Respondent has relied on the relevant documents in assessing the Applicant's claim as opposed to the purpose of obtaining legal advice.
2. The Respondent submits that reliance on or acting in accordance with legal advice does not give rise to an implied waiver of legal professional privilege. In the Respondent's submission, the Applicant had not identified any factual basis for finding that there has been an implied waiver of legal professional privilege, or some other conduct that would be inconsistent with the maintenance of privilege. The Respondent also rejected the proposition that the insurer appears to have outsourced the entirety of its liability to solicitors. In any event, in the Respondent's submission, this would not provide a basis for the waiver of privilege over any legal advice provided. Nor would the insurer drafting the relevant decision notice in a manner consistent with legal advice provided in and of itself, have the effect of waving that privilege. A claims manager being heavily influenced by the legal advice, in the Respondent's admission, would also not give rise to a waiver.
3. I am in agreement with the Respondent's submission that use of the legal advice obtained to deal with the claim in question does not result in a waiver of privilege. I also do not find that documents sought by the Applicant show that the Respondent outsourced the claims management process to the solicitors it retained. The documents evidence the provision of legal advice. Even if that advice was used to settle the claim in question, use of the advice for that purpose does not, for that reason only, result in a waiver of legal professional privilege. What influence the claims manager had or did not have on the handling of the claim does not prevent a claim for legal professional privilege in respect of legal advice obtained.

Misconduct

1. The Applicant submits that there has been misconduct which, by reason of the application of s 125 of the Evidence Act 1995, would have the effect of waiving privilege. Section 125 of the Evidence Act provides as follows: "Loss of client legal privilege: misconduct (1) This Division does not prevent the adducing of evidence of - (a) a communication made or the contents of a document prepared by a client or lawyer (or both), or a party who is not represented in the proceeding by a lawyer, 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 (b) a communication or the contents of a document that the client or lawyer (or both), or the party, knew or ought reasonably to have known was made or prepared in furtherance of a deliberate abuse of a power. (2) For the purposes of this section, if the commission of the fraud, offence or act, or the abuse of power, is a fact in issue and there are reasonable grounds for finding that - (a) the fraud, offence or act, or the abuse of power, was committed, and (b) a communication was made or document prepared in furtherance of the commission of the fraud, offence or act or the abuse of power, the court may find that the communication was so made or the document so prepared. (3) In this section - power means a power conferred by or under an Australian law".
2. The Tribunal in Roberts v Commissioner of Police, NSW Police Force [2018] NSWCATAD 127 set out certain principles regarding when a loss of privilege could occur by reason of misconduct. Ransome SM said, at [48]-[50]: "What is apparent from AWB and the other cases cited by the respondent is that there must be some form of dishonesty, intention or deliberate conduct involved to give rise to the loss of the privilege (see for example, Idoport Pty Ltd v National Australia Bank [2001] NSWSC 222; Kang v Kwan [2001] NSWSC 698; Van Der Lee v New South Wales [2002] NSWCA 286). The Tribunal outlined the principles governing the application of s 125 of the Evidence Act in Kreutzer v University of Sydney [2015] NSWCATAD 270. The Tribunal considered that a high level of intentional wrongdoing is required before legal professional privilege will be found to be defeated, and that something approaching an actual criminal conspiracy would appear to be necessary (at [98]-[99]). In relation to a possible breach of a statutory duty, such as the duty imposed by s 15A of the Director of Public Prosecutions Act, the Tribunal in Saggers v Attorney General's Department [2005] NSWADT 193 said at [36]: The malfeasance or misconduct must be of a gross kind, not one that may be no more than an administrative oversight in the course of a process which the Act clearly entitled the Government to undertake ... The case law does not stand for the proposition ... that a failure to remain within the boundaries of statutory power ... is enough to give rise to the loss of legal professional privilege. Much more is required. In considering whether a communication was made in furtherance of some fraud, misconduct or abuse of power, the Tribunal does not need to be satisfied that the fraud etc was actually committed, but that there are reasonable grounds for so finding (Zemanek v Commonwealth Bank of Australia [1997] FCA 1016 at [5]), or that there is "something to give colour to the charge" (as per Santow J in Kang v Kwan at [37]).
3. I do not consider that there are reasonable grounds for a finding that conduct of a kind that falls within s 125 has occurred. What is clear from consideration of the relevant provision by Courts and the Tribunal is that there needs to be a high level of wrongful conduct, whether described as a "high level of intentional wrongdoing", something approaching "an actual criminal conspiracy" or malfeasance or conduct of a "gross kind". I find nothing in the evidence to make such a finding. I accept that the Applicant is clearly dissatisfied with the way in which her claim has been dealt with but I do not find in the evidence anything that comes with in s125.
4. In addition, s 125 requires that a communication or document it applies to, be made in furtherance of the purposes described in the provision. I do not find that the documents the subject of the Respondent's claim for legal professional privilege were made other than for the dominant purpose of obtaining legal advice or the provision of that advice, and not for a purpose of a kind described in s 125.
5. During the hearing of the matter, the Respondent indicated that parts of some of the documents the subject of these proceedings have been released to the Applicant. The Tribunal notes and affirms the decision to release these documents.
6. During the hearing of this matter, the Applicant raised a range of matters that were of concern to her. They included the level of costs incurred by the Respondent in handling her claim, the actions of the solicitors advising and "possible undue influence" of her employer on the insurer. I note these matters for the record. However, these are not matters within the jurisdiction of the Tribunal when considering the application under the GIPA Act made in this matter.

Orders 1. The administratively reviewable decision of the Respondent is set aside. 2. The decision of the Respondent to release to the Applicant the information that has been released to the Applicant is affirmed. 3. The administratively reviewable decision of the Respondent 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. 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: 07 November 2024