Pemberton v Insurance and Care NSW

NCAT Administrative and Equal Opportunity|2024-07-12

Background

James Pemberton seeks information held by Insurance and Care NSW (the Respondent) about a workplace investigation relating to him. He made an application to the Respondent for access to information under s 58 of the Government Information (Public Access) Act 2009 (the GIPA Act) in December 2021 that has progressed through many procedural and other steps to date.
In this matter Mr Pemberton seeks administrative review of the Respondent's decision to refuse access to a document titled "Factual investigation dated 12 March 2018 and its enclosures" (the document).
On 5 September 2023 the Respondent determined the document could not be disclosed because legal professional privilege applies to it and there is a conclusive presumption against disclosure of the document under the GIPA Act.

Open material

Mr Pemberton provided his application for review to the Tribunal attaching a review report of the Information Commissioner dated 24 January 2024 as well as written submissions filed on 25 June 2024.
The Respondent provided an affidavit of a member of staff of a claims manager acting for the Respondent, a bundle of documents and two written submissions to the Tribunal and Mr Pemberton.

Confidential material

The Respondent also provided a confidential bundle of documents to the Tribunal containing a copy of the document, two letters of advice from a law firm and an email chain relating to matters in the document and the letters of advice.

On the Papers

The parties were given the opportunity to make submissions as to whether the Tribunal should dispense with a hearing, and I am satisfied that the matter can be adequately determined in the absence of the parties. A hearing is dispensed with under s 50(2) of the Civil and Administrative Tribunal Act 2013.

Jurisdiction

The Tribunal has jurisdiction to review 'an administratively reviewable decision': s 55 of the Administrative Decisions Review Act 1997 (the ADR Act). Section 100 of the GIPA Act provides that applications may be made to the Tribunal for administrative review of 'reviewable decisions' made by an agency. A decision to refuse to provide access to information in response to an access application is a reviewable decision (s 80 of the GIPA Act). I am satisfied the Tribunal has jurisdiction to hear and determine this application for review.

Administrative Review

When considering an application for review the Tribunal is to decide what is the correct and preferable decision having regard to the material before it (s 63(1) of the ADR Act). In doing so the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision (s 63(2) of the ADR Act). The time at which the correct and preferable decision is determined is when Tribunal makes its decision: YG and GG v Minister for Community Services [2002] NSWCA 247 at [25].

Applicant's case

In his application for review, Mr Pemberton set out the following grounds: The agency has refused to release the requested information based on 'Legal Privilege' and I do not believe that this is an acceptable reason for denying the information to be released. I have been seeking this information as the disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct. I seek review of this matter so that the information sought can be released.
In submissions, the Applicant contends the document should be disclosed because the factual scenario in this review is analogous to the case of Whitaker v Illawarra Shoalhaven Local Health District [2018] NSWCATAD 183 (Whitaker) including that the information likely contains statements from police officers who should not expect confidentiality. Further, the Applicant contends the document is required under s12(2)(e) of the GIPA Act because it could reasonably expected to reveal certain conduct including misconduct.

Respondent's case

The Respondent acknowledged it bears the burden of establishing its decision is justified: see s 105 of the GIPA Act.
The Respondent contends that there is a conclusive overriding public interest against disclosure of the document, relying on s 14 and cl 5 of Sch 1 to the GIPA Act because legal professional privilege applies to the document. The Respondent contends the requisite client-lawyer relationship existed, the dominant purpose of the creation of the document was for a lawyer to provide legal advice and the document was intended to be kept confidential.

Legislative Framework

The GIPA Act provides that there is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure and public interest considerations in favour of disclosure are not limited in scope: see ss 5 and 12 of the GIPA Act.
There is an overriding public interest against disclosure of information 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 conclusively presumed that there is an overriding public interest against disclosure of the information specified in Sch 1 to the GIPA Act: s 14(1) of the GIPA Act. The effect of a conclusive presumption of an overriding public interest against disclosure is that the Tribunal is not required to perform the public interest test of balancing considerations under s 13 of the GIPA Act: see Yee v Medical Council of NSW [2017] NSWCATAD 370 at [41] (Yee).
Clause 5 of Sch 1 to the GIPA Act provides: 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 Evidence Act 1995 (the Evidence Act) provides for two categories of legal professional privilege: legal advice privilege (s 118) and litigation privilege (s 119). Section 118 of the Evidence Act provides the legal advice privilege will apply where: 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.
The Evidence Act also defines client to include a person or body who engages a lawyer to provide legal services or who employs a lawyer as well as an employee or agent of a client. The Evidence Act defines 'confidential document' to mean a document prepared in circumstances where there was an obligation on the author or recipient not to disclose its contents; and a 'confidential communication' to apply to communication occurring in the same circumstances.
While the statutory formulation of privilege is usually applied in matters such as this, as the Tribunal has previously observed, the Evidence Act is not a code and common law principles of privilege remain relevant, including when interpreting the meaning and operation of words and terms not defined in the Evidence Act: see Jackson v University of New South Wales [2019] NSWCATAD 224 (at [96]).
Further, while the Evidence Act uses the term 'client legal privilege', it is understood to be interchangeable with the term 'legal professional privilege': Moore v Southern NSW Local Health District [2024] NSWCATAD 72 at [49].

Issue for resolution

Mr Pemberton has identified a potential public interest consideration in favour of disclosure, that disclosure could reasonably be expected to reveal or substantiate engagement in misconduct or negligent, improper or unlawful conduct. This consideration would be relevant to the public interest test under s 13 of the GIPA Act. If legal professional privilege applies to the document there will be a conclusive presumption of an overriding public interest against disclosure and the Tribunal is not then required to perform the public interest test: see Yee.
The key issue for determination is therefore whether legal professional privilege applies to the document.
As set out by the Appeal Panel in AIN v Medical Council of New South Wales [2015] NSWCATAP 241 at [25]: … it is required to establish the factual matters necessary to found a claim under s 118 or s 119 of the Evidence Act, including that relevant provisions are a client and a lawyer, that a document or communication is confidential and that the dominant purpose for which a communication was made or a document was prepared is one contemplated by the provision relied upon.
Therefore, in order for legal professional privilege to apply to the document, each element of the privilege must be satisfied. The essential elements of legal professional privilege are: 1. the existence of a client and lawyer relationship; and 2. the confidential nature of the relevant document; and 3. the relevant document was brought into existence for the dominant purpose of either: 1. enabling the client to obtain, or the lawyer to give legal advice or provide legal services, or 2. for use in existing or anticipated litigation.

Evidence

The unchallenged evidence of Mr Anderson, a Senior Manager for Employers Mutual Management Pty Ltd (EML) is that:

EML manages workers compensation claims on behalf of the Respondent;
EML regularly seeks legal advice in relation to workers compensation claims it manages for the Respondent;
Information in relation to workers compensation claims is kept confidential and securely by EML and those engaged by EML are made subject to confidentiality requirements;
SMK Lawyers were retained by EML to advise in relation to a workers compensation matter involving Mr Pemberton;
The document was prepared by a third party for EML after EML received legal advice from SMK Lawyers and a recommendation from SMK Lawyers for EML to obtain further information before further legal advice could be provided; and
The purpose of creating the document was to enable SMK lawyers to provide further legal advice to EML about a workers compensation claim EML was managing for the Respondent.

Does Legal Professional Privilege apply to the document?

On the material before the Tribunal, it is evident a lawyer client relationship exists between SMK Lawyers and EML. EML sought legal advice from SMK Lawyers regarding a workers compensation claim. EML was acting on behalf of the Respondent in managing the workers compensation claim.
I am satisfied the document is a confidential document because of the sensitive nature of its contents and the circumstances around its creation.
The term 'dominant purpose' is not defined in the Evidence Act but has been held to mean one that predominates over other purposes - the prevailing or paramount purpose: Priest v State of New South Wales [2006] NSWSC 1281 at [26]. 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) 136 FCR 357.
Legal professional privilege extends to documents used to assist a lawyer to give advice and a client to receive it: Trade Practices Commission v Sterling (1979) 36 FLR 244 at [4].
On the material before me and my inspection of the document I am satisfied the document was commissioned by EML in order to obtain further legal advice, that is, for the dominant purpose of seeking or receiving legal advice on behalf of the Respondent.
I am therefore satisfied that the document is subject to legal professional privilege. This means that a conclusive presumption under the GIPA Act applies which was not the case in Whitaker.
The Respondent considered whether privilege over the document should be waived and decided that it should not. That decision is not reviewable by the Tribunal.
Therefore there is an overriding public interest against disclosure of the document under cl 5 of Sch 1 to the GIPA Act, which is to be conclusively presumed under s14 of the GIPA Act.
It follows that the decision under review should be affirmed.

Orders 1. The decision under review is affirmed. 2. Section 64 of the Civil and Administrative Tribunal Act 2013 applies to the material filed by the Respondent on a confidential basis. That material is not to be released to either the Applicant or the public. 3. An oral hearing is dispensed with under s 50(2) of the Civil and Administrative Tribunal Act 2013.

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: 12 July 2024

At a glance

Court

Decision date

Source

Judgment (14 paragraphs)

Parties

Cases Cited (9)