Slater and Telstra Corporation Limited [2006] AATA 533 (21 June 2006)

Last Updated: 21 June 2006

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2006] AATA 533

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2002/563

GENERAL ADMINISTRATIVE DIVISION		)
	Re		GORDON SLATER

Applicant

And

TELSTRA CORPORATION LIMITED

Respondent

DECISION

Tribunal

Senior Member B J McCabe

Date 21 June 2006
Place Brisbane

Decision

The respondent is required to review its files with a view to providing documents in accordance with these reasons.

[Sgd]
B J McCABE
SENIOR MEMBER

CATCHWORDS

PRACTICE AND PROCEDURE – Application for review – request for further documents not contained in the s 37 documents – relevance of documents to the applicant’s claim – legal professional privilege

Administrative Appeals Tribunal Act 1975 s 37

Comcare v Christina Foster [2006] FCA 6

Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49

Parremore and Australian Postal Corporation [1991] AATA 71; (1991) 23 ALD 115

REASONS FOR DECISION

21 June 2006

Senior Member B J McCabe

INTRODUCTION

1.	Mr Gordon Slater has asked the Tribunal to direct the respondent to release a range of documents that Mr Slater claims are relevant to these proceedings. A directions hearing was held in relation to the request on 7 March 2006. Mr Slater appeared on his own behalf by telephone from the United Kingdom, where he resides. Ms Fitzpatrick represented the respondent.
2.	This is not the first time Mr Slater has asked for additional documents from the respondent. He says there are documents missing from the file prepared pursuant to s 37 of the Administrative Appeals Tribunal Act 1975. The respondent says many of the documents Mr Slater has identified do not relate to the matters before the Tribunal. It says Mr Slater is seeking to re-agitate earlier claims.
3.	I have already used the power under s 25(4A) of the Act to define the scope of the dispute. I decided In Slater and Telstra Corporation Ltd [2005] AATA 527 the Tribunal would not reconsider the evidence in relation to the earlier claims. It would focus instead on whether (and to what extent) Mr Slater’s condition has deteriorated subsequent to the Tribunal’s decision in Slater and Telstra Corporation Ltd [2002] AATA 597. That decision dealt with Mr Slater’s entitlements up until June 2002.
4.	In the most recent application, Mr Slater has identified a series of documents he wishes to access. The list is contained in a letter dated 16 August 2004. I will deal firstly with the legislation before considering each of the items Mr Slater has sought.

THE LEGISLATION

5.	Section 37 of the Act requires the decision-maker to lodge a file comprised of:

(a) a statement setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision; and
(b) every other document or part of a document that is in the person’s possession or under the person’s control and is relevant to the review of the decision by the Tribunal.

6.	The obligation imposed by s 37 is reasonably well understood. It does not compel the decision-maker to disclose every document it holds in its possession – merely those which are relevant to the Tribunal’s review of the decision in question. It is possible the content of the T documents will be affected by the terms of my ruling of 6 June 2005 which defined the scope of the dispute in more detail. Documents in the possession of Telstra that relate to other matters that are or have been in dispute with the applicant are not necessarily liable to be disclosed in these proceedings unless they are relevant to the Tribunal’s consideration of this dispute.
7.	I note in particular that the decision-maker will be unable to claim legal professional privilege in respect of documents that are otherwise relevant: s 37(3). That becomes an issue in this case because Mr Slater has specifically asked that Telstra be required to disclose any reports or video material created by private investigators. He has also asked for copies of communications between the respondent and its lawyers.
8.	Documents brought into existence at the request of Telstra for the purpose of making the reviewable decision must be produced. Those documents would not ordinarily attract legal professional privilege in any event since they were not brought into existence for the dominant purpose of providing or obtaining legal advice or legal services: Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49 at 73 per Gleeson CJ, Gaudron and Gummow JJ; see also Parremore and Australian Postal Corporation [1991] AATA 71; (1991) 23 ALD 115. It follows Telstra must disclose any report prepared by a private detective that was on the applicant’s file when the decision was made or within 28 days of receiving the application. Reports contained on other files in the respondent’s possession to which the decision-maker has had regard must also be produced within 28 days of receipt of the application.
9.	The respondent may have commissioned a report from an investigator subsequent to the preparation and filing of the T documents. I do not know whether it did so. The respondent has given no indication either way. Ms Fitzpatrick said such a document would almost certainly be the subject of a claim for legal professional privilege because it would have been prepared for the sole purpose of being used in these proceedings: see Esso Australia Resources; see also Comcare v Christina Foster [2006] FCA 6. I agree in principle, although it would presumably be necessary to explain how the privilege attaches to a particular piece of evidence if and when it is produced at the hearing after not being disclosed in the course of the pre-hearing procedures.

THE SPECIFIC REQUESTS FOR DOCUMENTS

10.	I turn now to the applicant’s letter of 16 August 2004 detailing the documents or classes of documents to which he seeks access.
11.	The applicant has asked for all of the transcripts that were referred to in the s 37 statement. He has also asked for exhibits - presumably exhibits in the earlier proceedings. The respondent has agreed to provide copies of that material.
12.	Mr Slater has also made a general request to be provided with "copies of all documents upon which you seek to rely [at the hearing]...". He is entitled to see those documents, of course, but they will be provided according to a timetable prepared in consultation with both parties. His request is premature.
13.	Mr Slater next refers to a series of calculations made on 6 February 2002 by Mr Johnston of GIO. The calculations relate to Mr Slater’s net weekly earnings (NWE). The NWE calculations were presumably made in connection with the earlier proceedings. There is no obligation to produce them in these proceedings. The same answer should be given in relation to the email from Stephanie Hoskings dated 17 April 2002 and other documents referring to that email.
14.	The applicant next refers to an email from Ms Hosking dated 27 March 2002, and another email from Stephanie Hosking dated 22 April 2002. Mr Slater says the documents refer to the reviewable decision. If the reviewable decision is the decision under consideration here, those documents should be provided to the applicant. If instead they refer to another of the decisions the Tribunal has already considered, they do not need to be disclosed.
15.	The applicant says he wrote to Mr Johnston on 22 April 2002 seeking details about NWE and a determination and other material. It does not appear those documents relate to these proceedings which are concerned with the applicant’s condition after that date. Those documents do not have to be disclosed.
16.	The documents relating to the settlement conference involving Mr O’Regan QC in 2000 (including a fee invoice) are irrelevant to these proceedings. It is also unclear that the correspondence between Telstra or GIO and the UK Department of Social Security in 1999 sheds any light on the matter before the Tribunal. The respondent is not required to disclose those documents or any of the other communications relating to that correspondence. I also doubt whether copies of correspondence between the respondent and the law firm and barrister who represented Mr Slater at the hearing in earlier proceedings will shed any light on the question before the Tribunal in these proceedings.
17.	Mr Slater is entitled to access any relevant documents that have not been included in the T documents which record communications between the person conducting the review of the original determination and others – including the respondent’s lawyers, if those communications were made at or before the time the reviewable decision was being made. If there are any other documents that were referred to in the course of arriving at the reviewable decision but which have not been disclosed, those documents should be disclosed.
18.	Mr Slater has asked for copies of all reports of investigations carried out into him by the respondent. If those reports were prepared in connection with the making of the reviewable decision, they should be released to the applicant. The respondent is not required to release reports that might have been compiled subsequently in the course of preparing for these proceedings if they are capable of being the subject of a valid claim for legal professional privilege.
19.	The applicant next refers to evidence that was discussed in the course of a telephone conference in 1997. He wants copies of the evidence referred to in that discussion. Since I do not understand the respondent is disputing the source of Mr Slater’s injury in these proceedings, I do not think it is necessary to produce those documents.
20.	The chronology referred to in the letter that was required by the Federal Court in earlier proceedings might be a helpful document. However it clearly relates to an earlier part of the proceedings. Unless it was referred to by the decision-maker in reaching the reviewable decision, it is not necessary for the respondent to disclose the document. Naturally, if the document is readily available, the respondent might consider making the disclosure in any event.
21.	The applicant then returns to NWE calculations. I have already made it clear the respondent is not obliged to provide details about NWE calculations. They relate to the applicant’s earlier claim. It follows the respondent is not required to produce copies of communications relating to this issue.
22.	The applicant next refers to correspondence in 1999 containing medical certificates. It is not immediately clear whether that correspondence is relevant, but I am prepared to accept it should be disclosed if it is available. If the correspondence that ensued is relevant to these proceedings, it should also be disclosed. If, however, it relates to matters that were under consideration in earlier proceedings which are irrelevant to the decision before the Tribunal on this occasion, the material does not have to be disclosed. I make the same observation about communications between the respondent and the applicant’s former lawyers: to the extent that the material relates to the matters before the Tribunal on this occasion, it should be disclosed.
23.	I doubt whether the applicant’s correspondence dated 2 November 2001 enclosing a medical certificate explaining that he was totally incapacitated advances the case at hand any further given the Tribunal has already concluded the applicant was not totally incapacitated at that point. I do not think it is necessary to disclose that correspondence (or any internal correspondence that might have been generated) because it is not relevant to the proceedings before me.
24.	I do not understand the relevance of the rehabilitation file referred to at the close of the applicant’s letter of 16 August 2004. I have no reason to believe it is related to the proceedings before me. The respondent is not required to disclose its contents.

CONCLUSION

25.	The respondent is required to review its files with a view to providing documents in accordance with these reasons.

I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member B J McCabe.

Signed: .....................................................................................
A. Ryan, Associate

Date of Hearing 7 March 2006
Date of Decision 21 June 2006
The applicant appeared by telephone.
The respondent was represented by Sparke Helmore