Altaranesi v NSW Self Insurance Corporation No 2 [2011] NSWADT 28 (11 February 2011)

Last Updated: 20 June 2011

Administrative Decisions Tribunal New South Wales

Case Title:	Altaranesi v NSW Self Insurance Corporation No 2
Medium Neutral Citation:	[2011] NSWADT 28
Hearing Date(s):	22 September 2010
Decision Date:	11 February 2011
Jurisdiction:
Before:	P Molony, Judicial Member
Decision:	The decision under review is varied so that Mr Altaranesi is to be given access to documents 15 and 62 within 30 days from the publication of these reasons. The decision is otherwise affirmed.
Catchwords:	Freedom of information - jurisdiction - adequacy of search
Legislation Cited:	Freedom of Information Act 1989 Administrative Decisions Tribunal Act 1997 Evidence Act 1995 NSW Self-Insurance Corporation Act 2004 Workplace Injury Management and Workers Compensation Act 1998 Workers Compensation Regulation 2003
Cases Cited:	Altaranesi v NSW Self Insurance Corporation [2010] NSWADT 217 AWB v Cole [2006] FCA 1234 Colakovski v Australia Telecommunications Corporation [1991] FCA 152; (1999) 29 FCR 429 Commissioner of Police v Perrin (1993) 31 NSWLR 606 Department of Education and Training v Mullett [2002] NSAWADTAP 22 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 Fitzpatrick v NSW Office of Liquor and Gaming [2010] NSWADT 72 General Manager, WorkCover Authority of NSW v Law Society of NSW (2006) 65 NSWLR 502, [2006] NSWCA 844 Goldberg v Ng Hango Holdings Pty Ltd [1995] HCA 39 Grant v Downs [1976] HCA 63, (1976) 135 CLR 674; Keriakes v State Rail Authority (No 2)[2003] NSWADTAP 39 Laws v Australian Broadcasting Tribunal [1990] HCA 31; 170 CLR 70 Mann v Carnell (1999) HCA 66 Martin v Commissioner of Police [2005] NSWADT 23 McGovern v Ku-ring-gai Council [2008] NSWCA 209 Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 Murlan Consulting v Ku-ring-gai Municipal Council [2009] NSWCA 300 News Corporation Ltd v NCSC [1984] FCA 36; (1984) 52 ALR 277 Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122; (2004) 136 FCR 357 Re JRL; Ex parte CJL [1986] HCA 39; [1986] HCA 39; 161 CLR 342 Re Pfizer Pty Ltd and Department of Health, Housing and Community Services (1993) 30 ALD 647 Re Stewart v Department of Transport (1993) 1 QAR 225 Re Williams and the Registrar of the Federal Court of Australia (1985) ALD 219 Simring v Commissioner of Police [2006] NSWADT 331 Trade Practices Commission v Sterling [1979] FCA 33; (1979) 36 FLR 244 Woods v Chief Executive Officer, State Rail Authority [2002] NSWADT 253
Texts Cited:
Category:	Principal judgment
Parties:	Tareq Altaranesi (Applicant) NSW Self Insurance Corporation (Respondent)
Representation
- Counsel:
- Solicitors:	T Altaranesi (Applicant - in person) Crown Solicitors Office (Respondent)
File number(s):	103038
Publication Restriction:

REASONS FOR DECISION

Background

1. On 23 February 2010 Mr Altaranesi filed an application to review a decision made on internal review by the NSW Self Insurance Corporation (SICorp) under the Freedom of Information Act 1989. The internal review decision was made on 16 February 2010.

2. Mr Altaranesi's initial FOI request sought documents relating to workers compensation claims he had made against his former employer, the South West Sydney Area Health Service (SWSAHS):

"I am applying under FOI Act for:

I- Access (inspect) and

2- Get copy of

The files of the claim No. 29559EML and claim No. 22930EML (Manually and Electronically). My request has to include all medical assessment reports and all exchanged documents (mail, fax, email) between Employers Mutual Limited, Royal Prince Alfred Hospital, Sydney South West Area Health Service and all doctors.

3. The above request is only for the period of 1/4/2008 until 04/01/2010"

3. The internal review released a substantial number of documents. The decision advised:

"I have carefully reviewed the papers on your file. I have decided that under the Freedom of Information Act 1989 the file may be released to you, with the exception of documents that are exempt from release under the Act.

Under clause 10, Schedule 1 of the Freedom of Information Act 1989, documents subject to legal professional privilege are exempt from release. Legal privilege may be claimed if the documents meet the definition under s119 of the Evidence Act 1995 because they are:

Confidential communications between the client and another person or between a lawyer acting for the client and another person or a confidential document that was prepared for the dominant purpose of the client being provided with professional legal services relating to litigation or anticipated litigation.

Or the documents meet the definition under s 118 of the Evidence Act 1995 because they are:

Confidential communications made between the client and a lawyer or between 2 or more lawyers acting for the client or the contents of a confidential document prepared by the client or a lawyer for the dominant purpose of the lawyer(s) providing legal advice to the client.

It is my view that the documents listed under Schedule A should be withheld because they are subject to legal professional privilege and therefore exempt from release"

In addition, your file contained material relating to the personal affairs of third parties. Clause 6, Schedule 1 of the Freedom of Information Act 1989 states:

A document is an exempt document if it contains matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person.

In my opinion, release of the documents listed under Schedule B would involve the unreasonable disclosure of information concerning the personal affairs of third parties. These documents are therefore exempt from release."

4. 441 documents were released to Mr Altaranesi. 61 documents were subject o a claim of legal professional privilege, and 5 were the subject of a claim under the personal affairs exemption.

5. At a planning meeting held on 20 April 2010 Mr Altaranesi suggested that additional medical reports and communications between SICorp's agent, Employers Mutual Limited ("EML") and the SWSAHS existed and should be located.

6. SICorp's position is that all the medical reports it holds, which are not subject to legal professional privilege, have been released to Mr Altaranesi. It also maintains that all relevant communications between it, EML and the SWSAHS, or between EML and the SWSAHS, have either been released to Mr Altaranesi, or are the subject of a claim for privilege. Mr Altaranesi does not accept this. At a planning meeting on 13 May 2010 he pressed for access to these documents, which he insists exist.

7. SICorp, in addition to denying that there are any such documents, submitted that the Tribunal has no jurisdiction to deal with the issue. Mr Altaranesi disputed this.

8. I determined that jurisdictional issue as a preliminary issue on the papers, finding that the Tribunal did not have jurisdiction to review that issue: Altaranesi v NSW Self Insurance Corporation [2010] NSWADT 217.

9. The matter then proceeded to hearing on 22 September 2010 following which I reserved my decision.

10. In making determination under the Freedom of Information Act 1989 it is important to bear in mind that Section 61 of the Freedom of Information Act 1989 provides that -

"In any proceedings concerning a determination made under this Act by an agency or Minister, the burden of establishing that the determination is justified lies on the agency or Minister."

Issues for determination

11. The issue for determination is the review of SICorp's decision to refuse Mr Altaranesi access to documents. The majority were subject to a claim of legal professional privilege under clause 10 of Schedule 1 of the Freedom of Information Act 1989 . It provides -

(1) A document is an exempt document if it contains matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person (whether living or deceased).

(2) A document is not an exempt document by virtue of this clause merely because it contains information concerning the person by or on whose behalf an application for access to the document is being made.

12. The documents subject to a claim of legal professional privilege are those contained in SICorp's Schedule A. While it lists 61 documents subject to a claim of legal professional privilege, during the course of the proceedings privilege has been waived with respect to document 56 and it has been released. Also, during the course of planning meetings, I made orders by consent on 1 June 2010 ordering the release of documents 14, 19 and 35, and partial release of document 29, subject to deletions.

13. In addition SICorp determined that documents 70 to 72 of Attachment B to the internal review determination are exempt on the basis of the personal affairs exemption in clause 6 of Schedule 1. It determined that documents 68 and 69 were partially exempt on the same basis. Clause 6 provides -

(1) A document is an exempt document if it contains matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person (whether living or deceased).

(2) A document is not an exempt document by virtue of this clause merely because it contains information concerning the person by or on whose behalf an application for access to the document is being made.

14. At the hearing SICorp also argued that documents 70 to 72 were exempt under clause 13 and clause 16(a)(iii) and (b) of the Freedom of Information Act 1989. These clauses relevantly provide -

13 Documents containing confidential material

A document is an exempt document:

(a) if it contains matter the disclosure of which would found an action for breach of confidence, or

(b) if it contains matter the disclosure of which:

(i) would otherwise disclose information obtained in confidence, and

(ii) could reasonably be expected to prejudice the future supply of such information to the Government or to an agency, and

(iii) would, on balance, be contrary to the public interest.

...

16 Documents concerning operations of agencies

A document is an exempt document if it contains matter the disclosure of which:

(a) could reasonably be expected:

(i) ...

(iii) to have a substantial adverse effect on the management or assessment by an agency of the agency's personnel, or

(iv)..., and

(b) would, on balance, be contrary to the public interest.

Material Before the Tribunal

15. SICorp relied on the following material:

- Statement of Rachel Elmes Case Manager at Employers Mutual Limited

- Statement of Jackie Mills, Director, Human Resources, RPA (part of SSWAHS) with four attachments

- Confidential statement of Jackie Mills

- SICorp's submissions with attachments

-Transcript of the decision of Magistrate Ellis in the matter of Police v Ragusa dated 3 April 2009.

16. Mr Altaranesi relied on the following material -

- Statement of Mr Altaranesi dated 11 August 2010 with thirty seven annexures.

- Statement of Fawzia Ismail

- Submissions filed on 11 August 2010

- Second submissions with attachments.

17. During the hearing both Ms Elmes and Ms Mills gave evidence and were cross examined by Mr Altaranesi. Ms Mills' confidential affidavit was admitted on my being satisfied that it was necessary to do so in order to ensure that exempt matter was not disclosed: see s 55 of the Freedom of Information Act 1989 and s 75(2) of the Administrative Decisions Tribunal Act 1997 . This took place over Mr Altaranesi's objection that the taking of confidential evidence was unfair and denied him natural justice. I endeavoured to explain to him the exception to the usual rules of procedural fairness created by s 55 in order to prevent disclosure of exempt matter, but have no confidence he understood what I told him.

Further Preliminary Matters

18. Mention needs to be made of two further preliminary matters which arose in this matter.

19. First, after the last planning meeting, but before the hearing, Mr Altaranesi applied to issue a summons requiring Ms Kimberley Lynch, a claims officer at Employers Mutual Limited, who had dealt with his worker's compensation claims to give evidence and produce documents at the hearing. Employers Mutual Limited is a workers compensation scheme agent retained by SICorp, in its capacity as administrator of the Treasury Manager Fund (TMF), which provided workers compensation insurance to Mr Altaranesi's employer, the Sydney South West Area Health Service (SSWAHS).

20. Mr Altaranesi's application for a summons was referred to me for consideration. I refused to allow it to issue. I did so for a number of reasons.

21. The documents which Mr Altaranesi sought to compel production of were documents which fell within the scope of his FOI request. Insofar as Mr Altaranesi sought to compel production to prove that such documents exist and are in the possession of Employers Mutual Limited as agent for SICorp, then, because I had already determined that the Tribunal had no jurisdiction (with respect to documents Mr Altaranesi claimed Employers Mutual Limited had, but had not disclosed in response to his request) no purpose could be achieved by compelling production under summons. I noted that SICorp had filed on a confidential basis all the documents it had identified as being responsive to Mr Altaranesi's request, and considered that no benefit was to be had by compelling additional production under summons. I thought it likely that the summons, if issued, would be met with a claim of legal professional privilege: precisely the same issue the hearing was set to determine.

22. With respect to Ms Lynch herself, it was not clear to me what evidence relevant to my determination of the FOI review she could give. SICorp had filed a statement by Ms Rachel Elmes, a group case manager at Employers Mutual Limited, dealing with that company's role and systems. I was not persuaded that Ms Lynch's evidence would be relevant or of assistance. I was not persuaded that providing Mr Altaranesi with an opportunity to attack her credibility was either relevant or necessary given the issues for decision.

23. Mr Altaranesi was advised of this by the Tribunal's registry.

24. Secondly, at the commencement of the substantive hearing on 22 September 2010 Mr Altaranesi asked that I disqualify myself from the hearing. His principal reason for doing so was that I had denied him natural justice by refusing to issue the summons to Ms Lynch. He said that he had wanted to tender the documents he had specified and to cross-examine her as to her credibility. He said that my refusal to issue the summons together with a decision I had made in a previous case, had led him to conclude that I had already made up my mind as to the merits of his present case. As a result he asked that I disqualify myself.

25. Ms Johnson, who appeared for SICorp, said that I should not disqualify myself. She argued that the fact that I may have made adverse legal ruling in the past was insufficient to demonstrate either actual or apprehended bias. She submitted that the fact that I had made interlocutory ruling in these proceedings was not a ground for disqualification.

26. I refused to disqualify myself. The test as to whether there is a reasonable apprehension of bias is whether a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the exercise of the power being exercised: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337; Laws v Australian Broadcasting Tribunal [1990] HCA 31; 170 CLR 70; Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507; Re JRL; Ex parte CJL [1986] HCA 39; [1986] HCA 39; 161 CLR 342. The test requires two steps: Ebner v Official Trustee in Bankruptcy [2000] HCA 63 at [8];

"First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits."

See also Murlan Consulting v Ku-ring-gai Municipal Council [2009] NSWCA 300 at [43].

27. In McGovern v Ku-ring-gai Council [2008] NSWCA 209 Spigelman CJ (with whom Campbell JA agreed) said:

"14 Although the Australian test for apprehended bias , as expressed in terms of two "mights", sets a low threshold, with respect to a pre-judgment case the identification of what constitutes a lack of 'impartiality' or of 'prejudice' in the mind of the decision-maker involves an issue of some specificity.

15 The test for pre-judgment in Australian law is, in my opinion, to the same effect as that identified by the Supreme Court of Canada in Old St Boniface Residents Association v Winnipeg (City) [1990] 3 SCR 1170 where, in the terminology of the majority judgment: the decision-maker must be "capable of being persuaded" (at 1197c); pre-judgment is of such an "extent" that contrary representations "would be futile" (at 1197d-e); statements said to constitute pre-judgment must be an "expression of final opinion ... which cannot be dislodged" (at 1197f); the position of the person must be "incapable of change" (at 1197g). The "incapable of persuasion" test was applied again in Save Richmond Farmland Society v Richmond [1990] 3 SCR 1213 at 1224g.

16 A similar approach has been adopted in Australia on pre-judgment issues in Jia Legeng where, in the joint judgment of Gleeson CJ and Gummow J, their Honours referred to a test of whether the decision-maker "is open to persuasion" (at [71] and [105]), or whether the "conclusion already formed [is] incapable of alteration, whatever evidence or arguments may be presented" (at [72]).

17 To similar effect are the observations of Hayne J, namely, that a decision-maker will apply his or her opinion "without giving the matter fresh consideration in the light of whatever may be the facts and arguments relevant to the particular case" (at [185]). His Honour went on to refer to the test terms of whether "the evidence will be disregarded" (at [186])."

28. I did not accept that a fair-minded lay observer might reasonably apprehend, for the reasons outlined by Mr Altaranesi, that I might not bring an impartial mind to the matters requiring decision in this case. As a result I refused to disqualify myself.

Legal Professional Privilege

29. Mr Altaranesi was employed by SSWAHS from 2004 to 2009 when he was dismissed. During that time Mr Altaranesi alleges that he was the victim of demeaning, insulting and intimidating conduct on the part of fellow employees and his managers at RPA, which he says was never properly addressed by SSWAHS management. During that period Mr Altaranesi was the subject of bullying and harassment complaints by fellow employees and was subject to a number of disciplinary measures. During the course of his employment he made a number of workers compensation claims alleging injury, both physical and psychological.

30. In 2008 there were a series of incidents involving Mr Altaranesi and fellow employees. They resulted in a situation in which Mr Altaranesi alleged he had been assaulted by a fellow employee. Police charged the other employee with assault and the SSWAHS suspended both men, while an inquiry was conducted. In April 2009 Magistrate Ellis dismissed the charge of assault, finding that the fellow worker had been acting in reasonable self defence when he hit Mr Altaranesi. Following the assault charge being dismissed and the internal inquiry into the assault being completed, Mr Altaranesi's employment with SSWAHS was terminated.

31. It is not necessary to go into these events in any greater detail for the purposes of this case, as the rights and wrongs of those events are not matters which it is necessary to decide on a review under the Freedom of Information Act 1989 . It is, however, necessary to understand that Mr Altaranesi feels he has been unjustly and unfairly treated by his employer, his fellow employees, and the criminal justice system. He sees the dismissal of the assault charges as a result orchestrated by the SSWAHS. Much of his statement, and that of Ms Ismail, is concerned with those events and the rights and wrongs of them. Their relevance is as background material.

32. Mr Altaranesi has sought access from SICorp to all documents relating to two workers compensation claims he made against the background of these events: one for a physical injury, the other a psychological injury. The documents he requested were to cover the period 1 April 2008 to 4 January 2010. He was refused access to the documents in Schedule A on the basis of legal professional privilege.

33. In Fitzpatrick v NSW Office of Liquor and Gaming [2010] NSWADT 72, at [61-68] I decided, following substantial legislative changes to the provisions of the Evidence Act 1995 dealing with client legal privilege made by the Evidence Amendment Act 2007, that a claim for privilege should be determined on the basis of whether a document is privileged from production in legal proceedings on the ground of client legal privilege under Division 1 of Part 3.10 of the Evidence Act 1995 . This was a departure from the previous position in which the Tribunal applied the common law test of legal professional privilege. I remain of the view that the provisions of the Evidence Act 1995 now apply.

34. Section 118 of the Evidence Act 1995 provides:

'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.'

35. A 'dominant purpose' is one that predominates over other purposes; it is the prevailing or paramount purpose: FCT v Pratt Holdings at 279-280 per Kenny J at [30], AWB v Cole [2006] FCA 1234 per Young J at [44]. 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] FCAFC 122; (2004) 136 FCR 357 per Finn J v; AWB v Cole [2006] FCA 1234 per Young J at [44].

36. Section 117 contains definitions of confidential communication, confidential document, client and lawyer. Relevantly it provides:

(1) In this Division:

client includes the following:

(a) a person or body who engages a lawyer to provide legal services or who employs a lawyer (including under a contract of service),

(b) an employee or agent of a client,

(c) an employer of a lawyer if the employer is:

(i) the Commonwealth or a State or Territory, or

(ii) a body established by a law of the Commonwealth or a State or Territory,

(d) ...

confidential communication means a communication made in such circumstances that, when it was made:

(a) the person who made it, or

(b) the person to whom it was made,

was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law.

confidential document means a document prepared in such circumstances that, when it was prepared:

(a) the person who prepared it, or

(b) the person for whom it was prepared,

was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law.

lawyer means:

(a) an Australian lawyer, and

(b) an Australian-registered foreign lawyer, and

(c) an overseas-registered foreign lawyer or a natural person who, under the law of a foreign country, is permitted to engage in legal practice in that country, and

(d) an employee or agent of a lawyer referred to in paragraph (a), (b) or (c).

...

37. In her evidence Ms Elmes explained that SICorp, which is established by the NSW Self-Insurance Corporation Act 2004 , manages and administers the TMF Self Insurance Scheme. Under a contract with SICorp, Employers Mutual Limited manages workers compensation claims by employees of government agencies which participate in that scheme. SSWAHS is one such agency. Section 10 of the NSW Self-Insurance Corporation Act 2004 provides that "all records ... made and kept, or received and kept, by an agent or other person in the exercise of functions on behalf of" SICorp are its property. Thus, Employers Mutual Limited's records of workers compensation claims made against agencies covered by the TMF Self Insurance Scheme are the property of SICorp. As a consequence, Employers Mutual Limited's records with respect to Mr Altaranesi's workers compensation claims are the property of SICorp. The relationship between the TMF, TMF Agencies, SICorp and claims managers such as Employers Mutual Limited is subject to a contract of coverage.

38. SICorp is in turn an agency to which the Freedom of Information Act 1989 applies.

39. The relationships between these bodies becomes important when considering claims for legal professional privilege, as a central element of any analysis of a claim for that privilege is identifying who the client is for the purposes of s 118 of the Evidence Act 1995 . The privilege is that of the client.

40. When considering Mr Altaranesi' workers compensation claim, I am of the opinion that SSWAHS, SICorp and Employers Mutual Limited each satisfy the definition of client in s 117 of the Evidence Act 1995 . The SSWAHS as the employer and body against whom Mr Altaranesi's workers compensation claims was made (and proceedings commenced against in the Workers Compensation Commission) subrogated its rights to its workers compensation insurer, SICorp, who acted for it with respect to the claim, and, in turn, contracted with Employers Mutual Limited to manage the claim as its agent. Employers Mutual Limited then engaged solicitors (DLA Phillips Fox) who acted for SSWAHS in the proceedings in the interest of SICorp. Those circumstances point to both SSWAHS and SICorp being clients of DLA Phillips Fox under part (a) of the definition of client in s 117. By their agent Employers Mutual Limited they engaged the solicitors to provide legal services with respect to Mr Altaranesi's workers compensation claims. Because EML was acting as agent for both the SSWAHS and the SICorp, in respect of SSWAHS' interest in Mr Altaranesi's claim, it is also a client within the meaning part (b) of the definition of client in s 117.

41. The common law decisions relating to legal professional privilege provide a useful background to the operation of the relevant provisions of the Evidence Act 1995 . I see little benefit in quoting from the plethora of decided cases, which discuss the principles of legal professional privilege in detail. In considering the issue in the present case I have had regard to the decisions in General Manager, WorkCover Authority of NSW v Law Society of NSW (2006) 65 NSWLR 502, [2006] NSWCA 84; AWB v Cole No 5 [2006] FCA 1234; Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122 , (2004) 136 FCR 357; Grant v Downs [1976] HCA 63 [1976] HCA 63; , (1976) 135 CLR 674; and Trade Practices Commission v Sterling [1979] FCA 33; (1979) 36 FLR 244 among others.

42. I have examined all of the documents in Schedule A which are the subject of a claim for exemption on the ground legal professional privilege. They fall with ten categories, rather than the nine suggested by SICorp. Those 11 categories are:

Category 1 - Emails between DLA Phillips Fox and Employers Mutual Limited seeking and receiving advice and information in relation to Mr Altaranesi's workers compensation claims and advising on the course of a number of proceedings commenced by him: documents 1, 9, 18, 24, 30, 38, 39, 40, 42, 45, 46, 49, 52, 55, 58 and 60 and part of documents 3 and 8.

Category 2 - Employers Mutual Limited file notes of telephone conversation between Employers Mutual Limited and DLA Phillips Fox relating to workers compensation claims and proceeding brought by Mr Altaranesi against SSWAS: documents 4, 6, 7, 11, 20, 21, 25, 31, 34 and 37.

Category 3 - Original and copy correspondence from Employers Mutual Limited to DLA Phillips Fox forwarding reports relevant to Mr Altaranesi's claim: documents 10, 61 and 66.

Category 4 - Email exchanges between Employers Mutual Limited and SWAHSS (with some copied to DLA Phillips Fox) seeking and providing information and advice relevant to defence of Mr Altaranesi's claims by DLA Phillips Fox: documents 2, 5, 32, 50, 53, 54, and 54A.

Category 5 - Email exchanges between DLA Phillips Fox and SSWAHS seeking and providing information and advice relevant to defence of Mr Altaranesi's claims: documents 12, 13 and 17.

Category 6 - Employers Mutual Limited file notes regarding the receipt of legal advice or the receipt and sending of documents relevant to the defence of Mr Altaranesi's claims: documents 15, 16, 22, 23, 33, 36, 41, 43, 44, 48, and 51 and part of document 8.

Category 7 - Letters from DLA Phillips Fox to Employers Mutual Limited providing advice regarding the claims and proceedings brought by Mr Altaranesi, some copied to SSWAHS: documents 26, 27, 28, 56, 57, 59, 62, 63, 64, and 65.

Category 8 - Invoice from DLA Phillips Fox - partial exemption claimed: document 29.

Category 9 - Employers Mutual Limited internal checklist for the processing and management - including seeking legal advice - of an application for dispute resolution Mr Altaranesi had made to the Worker's Commission: document 47.

Category 10 - Letters from the Workers Compensation Commission to Employers Mutual Limited advising of the outcome of proceeding before the Commission and in one case attaching a decision of a Medical Appeal Panel; documents 15 and 62.

43. Having reviewed all of these documents it is my view that those in categories 1 to 9 inclusive have been prepared for the dominant purpose of DLA Phillips Fox providing legal advice to Employers Mutual Limited as agent for SSWAHS and SICorp. That advice was in connection with workers compensation claims and disputes brought by Mr Altaranesi against the SSWAHS, in which SICorp had an interest as administrator of the TMF Self Insurance Scheme. The documents in category 4 are confidential communications between Employers Mutual Limited and the SSWAHS, either as mutual clients of DLA Phillips Fox or by Employers Mutual Limited as agent for SSWAHS, concerning the defence of Mr Altaranesi's claims by DLA Phillips Fox. The documents in categories 1 to 9 are subject to legal advice privilege.

44. The documents in category 10 consist of advice provided to Employers Mutual Limited by the Workers Compensation Commission of the outcome of proceeding brought by Mr Altaranesi in the Commission and before a Medical Appeal Panel. They were not made for the dominant purpose of obtaining legal advice. They advise of the outcome of proceedings. They are not subject to legal advice privilege, and are not exempt under clause 10 of schedule 1 of the Freedom of Information Act 1989 .

45. In his submissions Mr Altaranesi argued that SICorp had waived legal professional privilege in respect of the documents in Schedule A.

46. Section 122 of the Evidence Act 1995 rele v antly provides:

'(1) ...

(2) Subject to subsection (5), this Division does not prevent the adducing of evidence if the client or party concerned has acted in a way that is inconsistent with the client or party objecting to the adducing of the evidence because it would result in a disclosure of a kind referred to in section 118, 119 or 120.

(3) Without limiting subsection (2), a client or party is taken to have so acted if:

(a) the client or party knowingly and voluntarily disclosed the substance of the evidence to another person, or

(b) the substance of the evidence has been disclosed with the express or implied consent of the client or party.

(4) The reference in subsection (3) (a) to a knowing and voluntary disclosure does not include a reference to a disclosure by a person who was, at the time of the disclosure, an employee or agent of the client or party, or of a lawyer of the client or party, unless the employee or agent was authorised by the client, party or lawyer to make the disclosure.

...'

47. This provision is said to represent a legislative attempt to more closely align s. 122 with the common law of waiver of legal professional privilege as expounded in Mann v Carnell (1999) HCA 66: see Explanatory Note to Sch. 1 item [57] of the Evidence Amendment Bill 2007. In that case Gleeson CJ, Gaudron, Gummow and Callinan JJ said at [28 and 29]:

"Legal professional privilege exists to protect the confidentiality of communications between lawyer and client. It is the client who is entitled to the benefit of such confidentiality, and who may relinquish that entitlement. It is inconsistency between the conduct of the client and the maintenance of the confidentiality which affects a waiver of the privilege [34].

Waiver may be express or implied. Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. When an affirmative answer is given to such a question, it is sometimes said that waiver is 'imputed by operation of law' [37]. This means that the law recognises the inconsistency and determines its consequences, even though such consequences may not reflect the subjective intention of the party who has lost the privilege. Thus, in Benecke v National Australia Bank [38], the client was held to have waived privilege by giving evidence, in legal proceedings, concerning her instructions to a barrister in related proceedings, even though she apparently believed she could prevent the barrister from giving the barrister's version of those instructions. She did not subjectively intend to abandon the privilege. She may not even have turned her mind to the question. However, her intentional act was inconsistent with the maintenance of the confidentiality of the communication. What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large."

48. Goldberg v Ng Hango Holdings Pty Ltd [1995] HCA 39 illustrates the role of considerations of fairness pay in determining whether there has been conduct inconsistent with the maintenance of the privilege in imputed waiver. It was a case in which the High Court considered whether a limited, confidential disclosure of privileged information to a third party for a specific purpose resulted in an implied or imputed waiver. The information concerned was a draft affidavit and initiating process to recover legal costs prepared for Mr Goldberg in proceedings against Ng. Mr Goldberg provided the documents to the Law Society which was investigation a complaint of professional misconduct made by Ng. The majority of the High Court (Deane, Dawson and Gaudron JJ) noted that Mr Goldberg had not intended to waive the privilege attached to the documents by providing them to the Law Society, but held that the question for determination was whether 'considerations of fairness required an imputed waiver', at [27].

49. Bearing that understanding of the law in mind I turn to consider whether or not there has been a waiver of the privilege in relation to any or all of the information to which legal advice privilege attaches.

50. SICorp submitted that Mr Altaranesi had provided no evidence of waiver of legal professional privilege. Mr Altaranesi is of a different view. He submitted that his statement demonstrated that the privilege had been waived.

51. I have studied Mr Altaranesi's statement with care in an effort to find the evidence which demonstrate a waiver. His first statement contains a series of paragraphs (9, 10, 11, 12, 13, 14, 43, 59 and 87) in which Mr Altaranesi says he is "aware" of certain documents being in the possession of the Employers Mutual Limited, and of some being disclosed. In some cases he says how he is so aware, in other cases he merely asserts being so. The documents he is aware of (police reports, statements, medical reports) are all documents that are not subject to claims for legal professional privilege. They do not appear in Schedule A.

52. Mr Altaranesi also asserts that Employers Mutual Limited was legally obliged to disclose the documents to him by section 74 of the Workplace Injury Management and Workers Compensation Act 1998 . That section requires an insurer, when declining liability for a workers compensation claim, to give reasons for the refusal. Clause 34 and 37 of the Workers Compensation Regulation 2003 operate to require an insurer giving a section 74 notice to provide the claimant with, subject to certain exceptions -

"(a) medical reports, including medical reports provided pursuant to section 119 of the 1998 Act (Medical examination of workers at direction of employer),

(b) medical certificates,

(c) clinical notes,

(d) investigators' reports,

(e) occupational rehabilitation providers' reports,

(f) health service providers' reports,

(g) reports of assessments under section 40A (Assessment of incapacitated worker's ability to earn) of the 1987 Act,

(h) reports obtained by or provided to an employer or insurer that contain information relevant to the claim on which a decision to dispute liability is made,

(i) wage details required to be supplied under section 43 (2) of the 1987 Act where a decision has been made to decline payment of, or reduce the amount of, weekly benefits, but only if such details have not already been supplied to the worker."

He notes that his former solicitors in one of his workers compensation claims were provided with a s 74 notice (document TA 5 to his first statement), but that he was not provided with a copy.

53. None of the documents in the section 74 notice match those concerning which legal professional privilege is claimed. None of the documents in Schedule A are documents which section 74 required Employers Mutual Limited to disclose.

54. Mr Altaranesi has also provided copies of an appeal he made to a Medical Appeal Panel under s 327 of the Workplace Injury Management and Workers Compensation Act 1998 and of the notice of opposition filed to that appeal by DLA Phillips Fox on behalf of the SSWAHS. I do not understand how they are said to demonstrate a waiver of legal professional privilege.

55. It appears to me that Mr Altaranesi does not understand the nature of the documents concerning which legal professional privilege is claimed in Schedule A. There is no evidence of waiver.

Operations of Agencies

56. Documents 70, 71 and 72 contain signed written statements from employees of the SSWAHS relating to the conduct of Mr Altaranesi: one incident involves an alleged injury to Mr Altaranesi, the other serious allegations of bullying and harassment by him. SICorp argues that the release of these documents could reasonably be expected to have a substantial adverse effect on the management or assessment by SSWAHS of its personnel, and would on balance be contrary to the public interest. As a result exemption is claimed under clause 16(1)(iii) and (b).

57. In her open statement Ms Mills gave evidence relating to complaints of bullying and harassment made by employees of SSWAHS against Mr Altaranesi during the course of his employment. She referred to the incident in July 2008 which led to criminal charges for an assault on Mr Altaranesi being laid against another employee. She said that inquiries made by SSWAHS, conducted by the head of security and herself, had determined that Mr Altaranesi had acted aggressively in that instance. This led to SSWAHS terminating his employment.

58. Ms Mills said that security reports revealed that since the termination of his employment there had been a number of incidents in which Mr Altaranesi was reported to have behaved aggressively to or been abusive of security staff. She referred to a meeting she had with him on 13 November 2008 in which he became aggressive and security had been called. Following that, SSWAHS had adopted the unusual procedure of issuing a barring order, prohibiting Mr Altaranesi being on the premises of RPA without good cause and appropriate notice. The barring order has since been renewed twice and remains in force.

59. Ms Mills believed that there was a real risk to the employees who made the statements in documents 70, 71 and 72, that they would be targeted by Mr Altaranesi if their statements were released to him. She believed that release of the statement would undermine "employee's confidence" in the confidentiality of RPA's grievance and investigation processes. Compromise of confidence in those processes would seriously undermine RPA ability to effectively manage its workplace.

60. I note that section 2.3 of the NSW Health Grievance - Effective Workplace Resolution Policy establishes confidentiality as a cornerstone of that policy. While it provides that employees about whom complaints must be given sufficient details of the complaints to allow them to fully respond, it does not give them a right to be provided with statements.

61. Ms Mills agreed that she was unfamiliar with workers compensation processes but considered that employees would expect their confidentiality to be maintained.

62. In his affidavit Mr Altaranesi denied each and every one of these allegations, although he did agree that he has been subject to the barring order. He said that during his employment he had been subject to an ongoing campaign of bullying, harassment and intimidation by fellow employees and management, which management had failed to investigate. This included an obscene drawing on his Bundi card, which he accused Ms Mills and another employee of doing. When this was put to Ms Mills she denied it.

63. I have also had regard to Ms Mills confidential statement which further addressed her concerns.

64. Mr Altaranesi alleged that false evidence has been given by employee's of the SSWAHS at the hearing of the assault charges, and that management had sided with his assailant. He denied being aggressive at any time. He maintained that the inquiry processes of SSWAHS had been inherently unfair, had denied him natural justice, and were part of an ongoing campaign to bully and harass him. In the course he alleged that SSWAHS employees had fabricated evidence against him.

65. As I have already observed it is not necessary for me to determine the rights and wrongs of all these respective allegations in order to determine Mr Altaranesi's FOI application. There can be no doubt that they reflect an ongoing dispute between Mr Altaranesi and the SSWAHS which has seen complaints of bullying and harassment made by and against Mr Altaranesi. Magistrate Ellis determined that Mr Altaranesi had behaved with sufficient aggression to justify a self-defence please on behalf of the man accused of assaulting him; Mr Altaranesi's employment was terminated on the grounds of aggressive conduct; and RPA, a robust public hospital, has found it necessary to issue repeated barring order prohibiting him entering upon its grounds.

66. In my opinion there is a real, rational and reasonable prospect, and it could be reasonably expected, that, if documents 70 to 71 were released, such disclosure would have a substantial adverse impact on the management or assessment by the SSWAHS of its personnel. In this case I consider that the substantial adverse impact would arise from a number of reasons. First the release of confidential statements given under the agencies complaints and disciplinary policies, would undermine confidence in the confidentiality of those processes, which is necessary for effective employee management and assessment: Keriakes v State Rail Authority (No 2) [2003] NSWADTAP 39 at [84]. Such confidence is essential to the agencies human resources management: Department of Education and Training v Mullett [2002] NSWADTAP 22. Secondly, given the history of complaints against Mr Altaranesi and his employment record with the SSWAHS, I consider that release of these particular documents would undermine confidence in, not only the confidentiality of SSWAHS complaints and discipline processes, but in SSWAHS' ability to ensure the safety of its employees. I accept that employees of SSWAHS, knowing of that history, would have a real, rational and reasonable cause to be concerned that release of that information would compromise their personal safety, exposing them to potential abuse and harassment. This would substantially undermine SSWAHS ability to manage risks to its employees, another essential human recourses function.

67. It is in the public interest that employee confidence in these essential human resources functions be maintained, as they are essential for the effective operation of agencies. Release of documents 70 to 72 would not be in the public interest.

Confidential Information

68. For substantially the same reasons as those outlined above I am satisfied that documents 70 and 72 are exempt under clause 13. I accept that they were provided to SSAWHS management by employees in confidence and that their release could reasonably be expected to prejudice the future supply of such information to SSWAHS. This is so because release of the type of the documents concerned, provided by employees, would undermine confidence in the confidentiality of SSWAHS's reporting process. Release of the specific documents could be reasonably and rationally seen as placing employees at risk, there by prejudicing the future supply of such information. It is not in the public interest that such information be released.

69. Documents 70 and 72 are therefore exempt under clause 13.

70. With respect to document 71 it is a statement by a person whose usual duties include investigating and reporting on issues concerning workplace injuries to other employees. I am not persuaded in those circumstances that it was provided or obtained in confidence. It is not exempt under clause 13, but is exempt under clause 16.

Personal Affairs

71. The term "personal affairs" is not defined in the Act. As was observed by the Queensland Information Commissioner in Re Stewart v Department of Transport (1993) 1 QAR 225 at [18] there has been a consistent disinclination by courts and tribunals "from attempting any comprehensive explanation of what is encompassed by the phrase." There it was held that held that information about family, marital and other relationships with emotional ties is information about the "personal affairs" of the people concerned.

72. In Re Williams and the Registrar of the Federal Court of Australia (1985) ALD 219 Beaumont J, sitting as a presidential member of the Commonwealth AAT, said, at 221, personal affairs "refer to matters of private concern to an individual." Thus because a persons "vocational competence in not something that is ordinarily treated as confidential" it is not, "prima facie at least" part of a person's personal affair.

73. In News Corporation Ltd v NCSC [1984] FCA 36; (1984) 52 ALR 277 the Full Court of the Federal Court, at 283, found that personal affairs refers to the affairs of a natural person and not a corporation. At 540:

It is sufficient for present purposes to indicate our view that information relating to the personal affairs of a person, such as information concerning his or her state of health, the nature or condition of any marital or other relationship, domestic responsibilities or financial obligations, may legitimately be regarded as affecting the work performance, capacity or suitability for appointment or promotion of that person. In those circumstances, it is conceivable that an assessment of work performance, capacity or suitability for appointment or promotion might contain such information. If it did, it would be necessary to consider whether disclosure of that information would be unreasonable so as to render the assessment an exempt document by virtue of s.41(1) of the FOI Act .

74. Colakovski v Australia Telecommunications Corporation [1991] FCA 152; (1999) 29 FCR 429 concerned an unsuccessful application to obtain records relating to telephone calls, which would identify the phone number (and the subscriber's name) from which nuisance telephone calls had been made. Lockhart J, at 436 said:

... I prefer the view that the "personal affairs" of a person within the meaning of ss 41(1) and 12(2) of the POI Act connotes information which concerns or affects the person as an individual whether it is known to other persons or not. For example, a document may contain statements about a person's private life, in the sense of his personal life, which is widely known in various sections of the community. Something may be notorious, but its notoriety does not deprive it of the character of information relating to the person's "personal affairs". Such a document would therefore prima facie answer the description of one which relates to the "personal affairs" of a person within s 41(1). ... I agree with the Full Court in Dyrenfurth that it would be inappropriate to attempt to define the meaning of "personal affairs" in some definitive way. It would be unwise to substitute for the word "personal" some other word such as the word "private" because one generally accepted meaning of the word "private" is confidential or not widely known. In my opinion, a person's affairs may be personal to him notwithstanding that they are not secret to him. ...

75. Heerey and Jenkinson JJ agreed with Lockhart J. In the course of his decision Heerey J said, at 440:

... The fact that the call was made in itself is a personal affair of the caller. The personal affairs of a person are made up of a myriad of "acts, facts, matters and circumstances". A single act, such as the making of a telephone call, can be a personal affair. ...

76. In NSW the ambit of the phrase was considered by the Court of Appeal in Commissioner of Police v Perrin (1993) 31 NSWLR 606 where the issue was whether the name and rank of investigating Police officers constituted their personal affairs. In affirming that they do not Kirby P traversed the authorities and said, at 625:

The ordinary dictionary meaning of " personal affairs " has been held to involve "matters of private concern to an individual": see Re Williams and Registrar of Federal Court of Australia [1985] AATA 226; (1985) 8 ALD 219; 3 AAR 529; Young v Wicks [1986] FCA 169; (1986) 13 FCR 85 at 88-89; [1986] FCA 169; 79 ALR 448 at 452. However, it has been suggested that this might be too narrow a paraphrase: see Department of Social Security v Dyrenfurth [1988] FCA 148; (1988) 80 ALR 533 at 539; cf Director of Public Prosecutions v Smith [1991] VicRp 6; [1991] 1 VR 63 at 69. In its context, the words " personal affairs " mean the composite collection of activities personal to the individual concerned.

77. The question of whether a document contains "information concerning the personal affairs" of a person is a question of fact that is determined from the circumstances of each individual case: see Woods v Chief Executive Officer, State Rail Authority [2002] NSWADT 253. In Re Pfizer Pty Ltd and Department of Health, Housing and Community Services (1993) 30 ALD 647 at [79], it was said that where a document contains a statement about a person's private life, which is widely known, "this does not deprive it of the character of information relating to the person's 'personal affairs.'"

78. In Martin v Commissioner of Police [2005] NSWADT 23 Higgins JM considered an application for the release of witness statements relating to allegations of assault made against her by neighbours. The Tribunal found at [65] that "while the statements do contain information concerning the personal affairs of third persons, the majority of the information also concerns the personal affairs of the applicant." That information concerning the applicant was not exempt: clause 6(2). Higgins JM concluded, at [66]:

"...the information that concerns the personal affairs of the applicant, in particular the information that records the events involving the applicant on 19 November 2003 (which forms the bulk of the information in both statements) is not exempt under cl.6 of Schedule 1 of the FOI Act. The fact that this information is provided by a third party does not make it personal information of that third party exclusively."

79. In Simring v Commissioner of Police [2006] NSWADT 331 the applicant sought access to statements prepared and used in the course of a completed and successful prosecution of the applicant. Pearson JM said of the statements, at [24]:

"I am satisfied that they contain information or opinion about the applicant, and information about individuals other than the applicant. Disclosure of these documents would reveal the identity of the authors of the documents, and identify others, as well as reveal the personal reasons for the creation of the documents. As such, disclosure of these documents would involve disclosure of personal information about persons other than the applicant: Kristoffersen v Department of Employment Workplace Relations and Small Business [2002] FCA 55 . "

80. SICorp relies on the personal affairs exemption in clause 6 with respect to:

- Document 68 - a copy of an application for an incident report made to the NSW Police by Employers Mutual Limited relating to the assault incident on 31 July 2008. From this SICorp has deleted the home address of the person who was charged with assaulting Mr Altaranesi.

- Document 69 - a list of fortnightly reimbursements made by Employers Mutual Limited for time lost as a result of injury by non nursing staff for the period 17 to 30 November 2008. It lists the names of approximately 36 employees (including Mr Altaranesi), their Employers Mutual Limited claim numbers, cost centre number, hours of work per week, medical certificate details, the period for which they claimed and details of their hours lost, pay rates and reimbursements made. From this SICorp has deleted details and information relating to all employees but Mr Altaranesi.

81. In my view the material deleted from document 69 does not fall within the scope of Mr Altaranesi's request as it does not relate to the specified claims made by him. While it does contain information relating to the personal affairs of others it is not necessary to consider the application of the personal affairs exemption, as the information should be redacted as outside the scope of Mr Altaranesi request.

82. With respect to document 60 the information deleted is the home address of the employee who was charged with assaulting Mr Altaranesi, but was found not guilty on the grounds of self-defence. It is also, as Mr Altaranesi is aware, the home address of a female employee who made complaints of harassment against Mr Altaranesi. The home address of a person indicates where they and their family live: this is information relating to their personal affairs.

83. SICorp determined that the release of the home address of this person would be an unreasonable disclosure of his personal affairs. I agree with that assessment.

84. Mr Altaranesi has objected that SICorp failed to consult with the person concerned as required by section 31, to see whether or not he objected to release to Mr Altaranesi. Section 31 relevantly provides -

(1) This section applies to a document that contains information concerning the personal affairs of any person (whether living or

deceased).

An agency shall not give access to a document to which this section applies (otherwise than to the person concerned) unless the agency has taken such steps as are reasonably practicable to obtain the views of the person concerned as to whether or not the document is an exempt document by virtue of clause 6 of Schedule 1.

(3) If:

(a) an agency determines, after having sought the views of the person concerned, that access to a document to which this section applies is to be given, and

(b) the views of the person concerned are that the document is an exempt document by virtue of clause 6 of Schedule 1,

the agency shall:

(c) forthwith cause written notice to be given to the person concerned:

(i) that the agency has determined that access to the document is to be given, and

(ii) of the rights of review and appeal, and the rights of complaint to the Ombudsman, conferred by this Act and the Ombudsman Act 1974 in relation to the determination, and

(iii) of the procedures to be followed for the purpose of exercising those rights, and

(d) defer giving access to the document until after the expiration of the period within which an application for a review or appeal under this Act may be made or, if such an application is made, until after the application has been finally disposed of.

85. It can be seen that section 31 does not require consultation where an agency decides not to give access to a document containing information about the personal affairs of a person. It operates to require consultation where an agency is contemplating giving access, so that the person's views about release of their personal information can be taken into account when making a determination. While frequently consultation will be necessary before an assessment can be made, in some cases it is clear that the release of the information relating to the personal affairs of a person would be unreasonable. In those circumstances consultation is not required. That is the case here.

86. Finally, I note that SICorp also claimed that the personal affairs exemption applied to documents 70 to 71 inclusive. As I have already found them to be otherwise exempt, I think it unnecessary to consider the application of clause 6 to them.

Conclusion

87. As a result of all the above I will vary to decision of the SICorp so that Mr Altaranesi is to be given access to documents 15 and 62 within 30 days from the publication of these reasons. The decision is otherwise affirmed.

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