Hart v ICare Self Insurance [2017] NSWCATAD 130

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Hart v ICare Self Insurance [2017] NSWCATAD 130 Hearing dates: Determined on the papers Date of orders: 27 April 2017 Decision date: 27 April 2017 Jurisdiction: Administrative and Equal Opportunity Division Before: C Ludlow, Senior Member Decision: The decision of the respondent is varied as follows:

1. Access is granted to the applicant to copies of the following information:

(a) Dr Graham George dated 6 May 2013 (b) Dr Graham George dated 24 June 2013 (c) Dr Neil Cochrane dated 14 July 2015 (d) Dr Neil Cochrane dated 16 July 2015. Catchwords: ADMINISTRATIVE LAW – government information – legal professional privilege – waiver of privilege Legislation Cited: Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Evidence Act 1995 Government Information (Public Access) Act 2009 Category: Principal judgment Parties: Marie Hart (Applicant)

Icare Self Insurance (Respondent) Representation: Applicant in person

Solicitors:

Crown Solicitor (Respondent) File Number(s): 2016/00378519, 1610767

reasons for decision 1. On 9 November 2016 the applicant made an application to this Tribunal for review of a decision by the respondent under the Government Information (Public Access) Act 2009 ("the GIPA Act') concerning certain medical reports regarding the applicant. 2. As part of its decision the respondent determined not to release four medical reports dated 5 May 2013, 5 June 2013, 14 July 2015 and 16 July 2015 on the grounds that there was an overriding public interest against disclosure of the information, as it was privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege) (s 14(1) and Schedule 1 cl 5(1) of the GIPA Act). 3. At a case management conference on 24 January 2016 the parties indicated that the only issue between the parties was access to the four medical reports. They consented to the application being determined on the papers. I am satisfied that the issues for determination can be adequately determined in the absence of the parties by considering material lodged with the Tribunal, and make an order under s 50(2) of the Civil and Administrative Tribunal Act 2013 dispensing with a hearing. 4. On 27 March 2017 the solicitor for the respondent advised this Tribunal by letter (copied to the applicant) that the respondent had decided to waive legal professional privilege in respect of the information and that the documents had been released to Ms Hart on 16 March 2017. The respondent sought that the Tribunal make orders varying the decision of the respondent in respect of the four reports and otherwise dismissing the application. 5. On 27 March 2017 the Tribunal received a submission from the applicant in which she stated that the respondent had provided her with the reports. However, she disputed that legal professional privilege had applied to the reports and submitted that the respondent had breached s 125 of the Evidence Act 1995 in its handling of the matter. 6. In my view it is not necessary to dismiss any part of the application as the only information still in issue was the four reports. That issue has been resolved by the respondent's release of those reports. 7. Section 125 of the Evidence Act provides: 125 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. 1. The section relates to the adducing of evidence, which might otherwise be privileged, in circumstances where the communication was associated with a fraud or offence or a deliberate abuse of a power. In the current context, the section could only be relevant to determine whether client legal privilege applied to the medical reports. Given that any privilege over the reports has been waived, it is not necessary for the Tribunal to determine now whether s125 could apply, nor is it compatible with the guiding principle contained in s36 of the Civil and Administrative Tribunal Act of facilitating the just, quick and cheap resolution of the real issues in the proceedings. 2. Section 63 of the Administrative Decisions Review Act 1997 provides that in determining an application for an administrative review of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it. 3. In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide to affirm the decision, vary the decision, set aside the decision and make a substitute decision or set aside the decision and remit the matter for reconsideration. 4. I have determined to vary the decision to reflect the waiver of legal professional privilege by the respondent and the release of the reports.