AIN v Medical Council of New South Wales [2015] NSWCATAP 241

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: AIN v Medical Council of New South Wales [2015] NSWCATAP 241 Hearing dates: 28 August 2015 Date of orders: 11 November 2015 Decision date: 11 November 2015 Jurisdiction: Appeal Panel Before: A P Coleman SC, Senior Member Dr J Lucy, Senior Member Decision: 1. Appeal allowed in part. 2. Order 2 made on 14 April 2015 in proceedings 1330335 in the Administrative and Equal Opportunity Division is set aside insofar as it determines that there is an overriding public interest against disclosure of information in Document 64 and, in substitution for it, the respondent is to provide the applicant with access to the information contained in the following entries and notes in Document 64: the entries for 5 July 2010 and 19 July 2010; the first line of the entry for 24 September 2010 and the second sentence of the entry for 24 September 2010 (comprising the last word on the second line of the entry and the third line of the entry); the entry for 5 and 6 October 2010; the entry of 8 October 2010, other than the last five words of the second line of that entry and the third line of the entry; the note immediately following the entry of 8 October 2010, other than the last six words of the first line and the whole of the second and last lines of that note; the entry for 14 October 2010 other than the last six words of the first line of that entry and lines 2-5 of that entry; and the note following the entry for 14 October 2010. 3. The Tribunal's decision is set aside insofar as it implicitly refuses access to the information in Documents 90, 107, 115 and 168 and, in substitution for that decision, the respondent is to provide the applicant with access to the information contained in Documents 90, 115 and 168 and to the information contained in Document 107 other than the third and fourth paragraphs of that document (that is, the second and third paragraphs after the marginal number "2" which appear immediately before a heading then marginal number "3"). 4. No order as to costs of the Appeal. 5. The appeal is otherwise dismissed. 6. Order pursuant to s 64 (1) Civil and Administrative Tribunal Act 2013 that there be a restriction on publication of any information that will identify the applicant. Catchwords: GOVERNMENT INFORMATION – Client legal privilege – Whether Tribunal addressed the question of whether disclosure of document would disclose the content of a confidential communication – Whether Tribunal considered whether there was a real prospect of litigation – Whether Tribunal considered whether in-house lawyer had requisite independence when advising in relation to a complaint concerning conduct of the respondent for which she was responsible; GOVERNMENT INFORMATION – Personal information – Whether information of agency officer is personal information – Balancing of public interest considerations; FACT FINDING - Whether the Tribunal made findings of fact required for conclusions as to application of privilege with no evidence to support findings – Whether Tribunal entitled to draw inferences - Whether circumstances gave rise to a reasonable and definite inference – Whether Tribunal entitled to consider evidence in previous proceedings involving same parties; APPEAL – Whether grounds of appeal limited to those identified in notice of appeal – Tribunal's duty to resolve the real issues in the proceedings with as little formality as possible; PROCEDURAL FAIRNESS – Whether Tribunal erred in making a finding that litigation privilege applied when this was not part of respondent's case; COSTS –Appeal on decision not to award costs- special circumstances- whether objective test. Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Administrative Decisions Tribunal Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Evidence Act 1995 (NSW) Government Information (Public Access) Act 2009 (NSW) Health Records and Information Privacy Act 2002 (NSW) Privacy and Personal Information Protection Act 1998 (NSW) Cases Cited: Aavelaid v J.A. 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