Australian Electoral Commission and Comcare - [2022] AATA 138

Australian Electoral Commission and Comcare [2022] AATA 138 (2 February 2022)
Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL )

) No: 2021/2680

GENERAL DIVISION )
Re: Australian Electoral Commission (AEC)
Applicant

And: Comcare
Respondent
And: David Richard McKenzie
Other Party
DIRECTION
TRIBUNAL: Mr S. Webb, Member
DATE OF CORRIGENDUM: 4 February 2022
PLACE: Canberra

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application.
The text altered in this matter is to the effect that:

At paragraph 43, the paragraph be replaced with:

‘As Mr de Beer’s Salt and Light Psychology practice is located in Queensland, the Health Practitioners Regulation Nation Law Act (Qld) (Queensland Act), to which the Health Ombudsman Act 2013 (Qld) refers, should be considered. Under s 216(2)(b)(ii) of the Queensland Act, ‘protected information’ may be disclosed if the disclosure is “authorised or required by any law of a participating jurisdiction”, including the Commonwealth.’

At paragraph 44, the words ‘Principle 9 and Principle 10 under the ACT Health Records Act’ be replaced with the words:

‘s 216(1) of the Queensland Act’

At paragraph 45, the words ‘ACT Health Records Act’ be replaced with the words:
‘Right to Information Act 2009 (Qld) and the Information Privacy Act 2009 (Qld)’
Division:GENERAL DIVISION
File Number(s): 2021/2680
Re:Australian Electoral Commission
APPLICANT

ComcareAnd
RESPONDENT

AndDavid McKenzie
OTHER PARTY

DECISION
Tribunal:Mr S. Webb, Member
Date:2 February 2022
Place:Canberra

Mr de Beer’s objection to the summons issued by the Tribunal on 7 December 2021 is refused. As the date for production under the summons is now past, the date by which Mr de Beer, Salt and Light Psychology, must produce documents under the summons is extended to 18 February 2022.
…….[sgd]……….
Mr S. Webb, Member
Catchwords
PRACTICE AND PROCEDURE – psychological injury – entitlement to compensation for incapacity for work during a period - application for review by employer – summons – production of psychological treatment records – objection to summons – relevant principles - right to privacy – therapist duty of care and risk of consequent harm - legitimate forensic purpose – apparent relevance - obligation to ensure each party is given a reasonable opportunity to present their case – summons not oppressive or speculative - obligation to comply – objection refused
Legislation
Administrative Appeals Tribunal Act 1975 ss 2A, 35, 39, 40A, 40B, 43
Health Records Act (Privacy and Access) 1997 (ACT) ss 6, 17, Schedule 1
Privacy Act 1988, Schedule 1, Part 3, ss 6.1, 6.2
Safety, Rehabilitation and Compensation Act 1988 ss 2A, 4, 5A, 5B, 14, 19
Cases
BrisConnections Finance Pty Ltd (Receiver and Manager Appointed) v Arup Pty Ltd [2016] FCA 906
Comcare v Maganga [2008] FCA 285
Harman v Secretary of State for the Home Department [1983] 1 AC 280
Hunt v Wark (1985) 40 SASR 489
Jack Brabham Engines Pty Ltd v Beare [2010] FCA 35
Lakatoi Universal…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] AATA 138
Decision Date: 2 February 2022

CaseChat Overview and Summary

This matter concerned an application by the Australian Electoral Commission (AEC) to the Tribunal for review of a reconsideration decision by Comcare. Comcare had affirmed its determination that Mr McKenzie was entitled to compensation for incapacity for work during a specified period, arising from an adjustment disorder with anxiety and depression accepted as an injury under the *Safety, Rehabilitation and Compensation Act 1988* (SRC Act). The AEC had contested Comcare's initial acceptance of liability, asserting that Mr McKenzie's condition was the result of personal stressors outside his employment. Numerous issues arose between Mr McKenzie and the AEC concerning rehabilitation, work performance, and payroll matters after his accepted injury date, and Mr McKenzie had been off work since 2019.

The Tribunal was required to determine whether Mr McKenzie suffered an 'injury' as defined by the SRC Act from a particular date, whether he had suffered 'incapacity for work' as a result of that injury during the relevant periods, and if compensation was payable. Central to these determinations was the need to establish a causal nexus between Mr McKenzie's adjustment disorder and the circumstances of his employment with the AEC, requiring consideration of whether his employment contributed to his ailment to a significant degree, as well as any other factors outside of employment that may have contributed. The Tribunal also needed to assess the existence and causes of incapacity for work, applying the statutory definition, which commonly relies on medical evidence, including clinical notes of treating therapists and doctors, particularly when disentangling multifactorial causes of incapacity.

In considering the production of psychological treatment records, the Tribunal acknowledged the potential for these records to be crucial in establishing the causes of incapacity, especially in cases where the ailment and incapacity may be multifactorial. The Tribunal applied principles relating to the legitimate forensic purpose and apparent relevance of such records, balancing these against the right to privacy and the therapist's duty of care. The Tribunal found that the summons for production of psychological treatment records was not oppressive or speculative, and that the obligation to ensure each party is given a reasonable opportunity to present their case necessitated their production.

Consequently, the Tribunal refused the objection to the summons issued for the production of psychological treatment records. As the original production date had passed, the Tribunal extended the deadline for Mr de Beer, Salt and Light Psychology, to produce the documents to 18 February 2022. The Tribunal noted that Mr McKenzie retained the right to object to the disclosure of any produced records on legal grounds at a later stage.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The ambit of relevance in a case involving disputation about the cause of a physical injury may be somewhat narrower than in a case of the present kind, involving disputation about the persisting effects of Mr McKenzie’s psychological injury and the causes of subsequent incapacity for work, which may be multifactorial and more difficult to ascertain.Facts On 13 November 2019, Mr McKenzie lodged a compensation claim (which does not appear to be included in the documents provided to the Tribunal) in respect of a psychological ailment, namely an adjustment disorder. The circumstances underlying the claim are set out in Mr McKenzie’s statements in T8 and T20. From this it can be understood the claim related to circumstances in his employment by the AEC from the Federal election in 2013 through to 2019. The claim was contested by the AEC. The grounds on which the contest was raised are set out in the AEC’s document in T3. From this it can be understood the AEC asserted Mr McKenzie’s adjustment disorder was the result of personal stressors outside his employment in 2018. On 26 February 2020, Comcare accepted liability for Mr McKenzie’s claimed injury under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act). Comcare described the injury as an adjustment disorder with anxiety and depression and determined the date of the injury to be 12 October 2018.[17][17] T24. On 3 March 2020, the AEC requested reconsideration of Comcare’s determination of liability.[18][18] ST1. On 19 May 2020, Comcare issued a reconsideration decision, affirming its original determination to accept liability for Mr McKenzie’s injury.[19][19] T38 and T39. There are numerous T documents that suggest, after his injury in October 2018, issues arose between Mr McKenzie and the AEC in respect of rehabilitation, work performance, conduct, claims for time off work and payroll issues. Mr McKenzie has been off work since 2019. The extent to which, if at all, these factors bear on issues the Tribunal must decide in the proceedings is a matter for evidence. Nevertheless, they have apparent relevance insofar as these issues may have causally contributed to Mr McKenzie’s claimed incapacity for work. On 27 January 2021, Comcare determined Mr McKenzie’s entitlement to compensation for incapacity to work during the period from 28 July 2021 to 28 October 2021.[20] [20] T75. On 16 February 2021, the AEC asked Comcare to reconsider its determination of Mr McKenzie’s entitlement to compensation for incapacity to work.[21][21] T76. On 11 March 2021, Comcare issued a reconsideration decision affirming its determination of Mr McKenzie’s entitlement to compensation for incapacity to work during the specified period.[22][22] T78. On 28 April 2021, the AEC applied to the Tribunal for review of this reconsideration decision.[23][23] T1. I note that there are numerous medical and psychological reports in the documents provided to the Tribunal, including reports by Dr Fraser (psychiatrist), Dr Martin (psychiatrist), Dr Kar (psychiatrist), Dr Scheepers (psychiatrist), Dr Shaik (psychiatrist), Dr Cooke (general practitioner), Mr Esser (psychologist) and Ms Cawley (psychologist). Additionally, some medical treatment records are in the T documents.[24] Others have been summonsed and the parties have been granted access to documents that have been produced to the Tribunal.[24] T86.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

I should say immediately, however, that the refusal of Mr de Beer’s objection does not mean that the AEC and Comcare will be given access to any records he produces in compliance with the summons. Mr McKenzie has the right to object to disclosure of any records that are produced by Mr de Beer should there be legal grounds on which to do so. If that occurs, the objection will be heard and decided at the time.Decision Mr de Beer’s objection to the summons issued by the Tribunal on 7 December 2021 is refused. As the date for production under the summons is now past, the date by which Mr de Beer, Salt and Light Psychology, must produce documents under the summons is extended to 18 February 2022.

Ratio Decidendi

Legal Principle Established

On 7 June 2021, Comcare described the issues in these proceedings in the following terms:2.1 Whether Mr McKenzie suffers from an ‘injury’ (as defined in s 5A of the SRC Act) on and from 28 July 2020? 2.2 If so, whether Mr McKenzie has suffered ‘incapacity for work’ (in light of s 4(9) of the SRC Act) as a result of the ‘injury’ during the relevant periods? 2.3 If so, whether compensation is payable to Mr McKenzie in accordance with s 19 of the SRC Act in respect of the ‘injury’ for the relevant periods?Consideration The substantive issues to be decided in this application turn on whether Mr McKenzie has an ‘injury’ that results in incapacity for work and, if so, whether he is incapacitated for work as result of the injury during the period under claim. In order to determine these issues, findings will be required for the purposes of s 4(9), s5A, s 5B, s 14 and s 19 of the SRC Act. Considering the nature of Mr McKenzie’s accepted injury, which is an injury in the form of a ‘disease’ under s 5B, findings will be required about the existence of a causal nexus between his adjustment disorder ailment and the circumstances of his AEC employment, namely that the employment contributed to his ailment to a significant degree. When assessing if that threshold is met, being a contribution that is substantially more than material, any other factors outside the employment that may have contributed to his ailment should be considered. The matters set out in s 5B(2) must be taken into account:(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account: (a) the duration of the employment; (b) the nature of, and particular tasks involved in, the employment; (c) any predisposition of the employee to the ailment or aggravation; (d) any activities of the employee not related to the employment; (e) any other matters affecting the employee’s health.This subsection does not limit the matters that may be taken into account. Should the requisite causal nexus between the employment and Mr McKenzie’s ailment be established by evidence, the next consideration is if the injury results in incapacity for work. This requires findings to be made about the existence and causes of incapacity for work, applying the defined meaning of that term in s 4(9) of the SRC Act. Commonly, questions of this kind turn on medical evidence, including medical certificates, and evidence of Mr McKenzie’s psychological condition at the relevant time. This is especially important when determining if the requisite causal link between the injury and the person’s incapacity for work is established during a specific period. In cases where the person’s ailment and any incapacity for work may be multifactorial, disentangling causes of incapacity during specific periods in the past is assisted by detailed evidence, often in the form of clinical notes of treating therapists and doctors.

ADMINISTRATIVE APPEALS TRIBUNAL	)
)	No: 2021/2680
GENERAL DIVISION	)