Steadfast Group Pty Ltd v WorkCover NSW [2010] NSWADT 23

CITATION: Steadfast Group Pty Ltd v WorkCover NSW [2010] NSWADT 23

DIVISION: General Division

APPLICANT Steadfast Group Pty Ltd PARTIES: RESPONDENT WorkCover NSW

FILE NUMBER: 093006

HEARING DATES: On the papers

SUBMISSIONS CLOSED: 23 December 2009

DATE OF DECISION: 27 January 2010

BEFORE: Molony P - Judicial Member

CATCHWORDS: Freedom of Information Act - Access to documents

LEGISLATION CITED : Freedom of Information Act 1989

Kiernan v Commissioner of Police [2007] NSWADT 18 CASES CITED: Re Halliday and Corporate Affairs (1991) 4 VAR 327 Wooldridge v Department of Human Services (General) [2009] VCAT 1900

APPLICANT M Allars, barrister REPRESENTATION: RESPONDENT I Pike, barrister

ORDERS: 1.Before the planning meeting on 5 February 2010 WorkCover shall file and serve a new schedule of documents falling within the scope of the request as identified in these reasons. With respect to each document the schedule shall indicate its date, author, the exemption claimed, and whether exemption is claimed in whole or in part.

REASONS FOR DECISION

Background 1 This is a decision made, on the papers, in the course of pre-hearing procedures relating to an application for external review of a decision of WorkCover (acting for the Workers Compensation Nominal Insurer) made under the Freedom of Information Act 1989 (FOIA). The Applicant is the Steadfast Group Pty Ltd, a cluster group of insurance brokers.

2 On 5 September 2008 Steadfast, via its solicitors, made the following FOI request to WorkCover ('the request'): 'Under the Freedom of Information Act 1989 we request on behalf of our client, Steadfast Group Limited, access to information held by the workers compensation Nominal Insurer established under the Workers Compensation Act 1987 (Nominal Insurer) in relation to comparative performance data regarding the performance of all Scheme Agents within the NSW Workers Compensation Scheme from 1 January 2004 to date. Please note that we have made a similar request for documents held by WorkCover. We are making this request because it may be that some documents do not fall within the original request. In particular, we request access to documents that fall within the following categories: 1 Statistics relating to each Agent's return to work outcomes, including but not limited to, the Agent's comparative performance in relation to the preparation and average duration of claims as measured by the Nominal Insurer in performance outcomes and service standards under the Agents' contracts broken down by reference to the category of size of employer; 2 Statistics relating to each Agent's tail claim liability reduction performance, including but not limited to the Agent's comparative tail claim liability reduction performance as measured by the Nominal Insurer in performance outcomes and service standards under the Agent's contract; 3 Statistics relating to each Agent's loss ratio performance, including but not limited to the Agent's comparative incurred costs as measured by the Nominal Insurer in performance outcomes and service standards under the Agent's contract; 4 Statistics relating to the measurement of each Agent's claim duration performance, including but not limited to, comparative statistics measuring the period between the Agent's lodging a claim and its resolution, as measured by the Nominal Insurer in performance outcomes and service standards under the Agents' contracts; 5 Statistics relating to each Agent's comparative contribution to scheme savings, as normalised according to the Agent's share of liabilities managed, as measured by the Nominal Insurer in performance outcomes and service standards under the Agents' contracts. 3 On 26 September 2008 WorkCover determined that it held documents within categories 1 and 2, but did not have any documents within categories 3, 4 and 5. Access to the documents within categories 1 and 2 was refused on the basis that it was confidential information to which the exemption in clause 13 of Schedule 1 of the FOIA applied. Steadfast sought an internal review of that decision. On 13 November 2009 the initial decision was confirmed on internal review.