Bakker and Australian Capital Territory (Compensation) - [2023] AATA 3002

Bakker and Australian Capital Territory (Compensation) [2023] AATA 3002 (20 September 2023)
Division:GENERAL DIVISION
File Number(s): 2023/3420
Re:Andrew Bakker
APPLICANT

Australian Capital TerritoryAnd
RESPONDENT

INTERLOCUTORY DECISION
Tribunal:Mr S. Webb, Member
Date:20 September 2023
Place:Canberra

Objections not upheld.
………………[SGD]…………………
Mr S. Webb, Member
Catchwords
PRACTICE AND PROCEDURE – review of decision refusing compensation claim in respect of alleged injury – psychological ailment – summons – medical treatment records – objections to grant of access – relevance – scope – legitimate forensic purpose – objections refused
Legislation
Administrative Appeals Tribunal Act 1975 ss 2A, 33, 39, 40A
Safety, Rehabilitation and Compensation Act 1988 ss 4, 5A, 5B, 14
Cases
BrisConnections Finance Pty Ltd (Receiver and Manager Appointed) v Arup Pty Ltd [2016] FCA 906
Bakker and Australian Capital Territory (Compensation) [2023] AATA 2770
Comcare v Maganga [2008] FCA 285
Hearne v Street [2008] HCA 36
Hunt v Wark (1985) 40 SASR 489
Jack Brabham Engines Pty Ltd v Beare [2010] FCA 35
Kennedy v Comcare [2014] FCA 82
Trade Practices Commission v Arnotts Pty Ltd & Ors [1989] FCA 248
Wong v Sklavos [2014] FCAFC 120

REASONS FOR DECISION
Mr S. Webb, Member
20 September 2023

Andrew Bakker claimed compensation in respect of an alleged injury in his employment by the Australian Capital Territory (ACT). Employers Mutual Limited (EML), the ACT’s compensation claim manager, decided to refuse the claim by primary determination and on reconsideration. Mr Bakker applied to the Tribunal for review of this decision.
In the course of the proceedings, the ACT’s legal representative, Moray & Agnew, made an application for the Tribunal to summons materials from the Interchange General Practice (Interchange). The summons was issued and materials were subsequently produced by Interchange (Interchange materials). Inspection orders were made granting Mr Bakker first access to the documents produced and, subject to objection, granting leave for the ACT to inspect the documents thereafter.
Mr Bakker objected to the ACT being granted access to the Interchange materials from before January 2018 on grounds of relevance. In Mr Bakker’s submission, the ACT is engaging in a fishing expedition and there is no legal, ethical or moral basis for obtaining all of the medical records. Mr Bakker raised no objection to the ACT and EML being granted leave to inspect the Interchange materials from January 2018 to the present.
It is these matters, alone, which are the subject of this interlocutory decision.
Principles
I discussed applicable principles in a recent decision in these proceedings.[1] For reasons of clarity, I will briefly reiterate those principles here.
[1] BAKKER AND AUSTRALIAN CAPITAL TERRITORY (COMPENSATION) [2023] AATA 2770 AT [9]-[13].
Leave to inspect documents produced under a Tribunal summons is to be decided under s 40B(1) of the Administrative Appeals Tribunal Act 1975 (AAT Act):
(1) Any of the following persons may give a party to a proceeding leave to inspect a document or other thing produced under a summons in relation to the proceeding:
(a) the President;
(b) an authorised member;
(c) an authorised officer.
Deciding to grant leave involves the exercise of discretion.
The principles which are applicable when deciding objections on grounds of relevance are well established. The material sought must have apparent or adjectival relevance to the issues for determination in the proceedings.[2]
[2] Jack Brabham Engines Pty Ltd v Beare [2010] FCA 35 at [7]-[9].
The conception of adjectival relevance is somewhat broader than the threshold of relevance which applies when considering the admission of evidence at a hearing. [3] There are two key considerations:
(a)whether the documents sought could reasonably be expected to throw light on some of the issues in the principal proceedings[4] and there is a real possibility that they may assist in the resolution of the issues in the proceedings;[5] and
(b)whether there is some reason to suppose that the documents sought will be capable of being used as evidence or for a legitimate forensic purpose in cross-examination,[6] and, when viewed realistically, the documents sought have a bearing on an issue which is not unreal, fanciful or speculative, or that the material sought is reasonably likely to add in some way to the relevant evidence in the case, or that it be “on the cards” that the documents sought will materially assist the party at whose request the subpoena has been issued.[7]
[3] BrisConnections Finance Pty Ltd (Receiver and Manager Appointed) v Arup Pty Ltd [2016] FCA 906 at [25].
[4] Trade Practices Commission v Arnotts Pty Ltd & Ors [1989] FCA 248 at [41].
[5] Comcare v Maganga [2008] FCA 285 at [37].
[6] Hunt v Wark (1985) 40 SASR 489 per King CJ at [493].
[7] Wong v Sklavos [2014] FCAFC 120 at [12].
Any document produced to the Tribunal and disclosed under compulsion to another party cannot be used for any other purpose:
Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise to disclose documents or information, the party obtaining the disclosure cannot, without leave of the court, use it for any purpose other than that for which it is given unless it is received into evidence. [8]
[8] Hearne v Street [2008] HCA 36, per Hayne, Heydon and Crennan JJ at [96]; see [105]-[109].
Under s 39(1) of the AAT Act, the Tribunal must ensure each party to a proceeding is given a reasonable opportunity to present their case. Accordingly, each party should have a reasonable opportunity to prepare their case on the basis of an evidentiary mosaic constructed from materials of relevance to which access has been granted for the purposes of the proceedings. The provision of a reasonable opportunity is not an open-ended opportunity, however. The Tribunal must proceed in a manner which is fair and reasonable for all parties to the proceedings, and in doing so it must have regard to the objectives set out in s 2A of the AAT Act:
In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that:
(a) is accessible; and
(b) is fair, just, economical, informal and quick; and
(c) is proportionate to the importance and complexity of the matter; and
(d) promotes public trust and confidence in the decision‑making of the Tribunal.
Objections
Mr Bakker’s objection is in the following terms:
I hereby consent to my medical records from the Interchange General Practice, now known as the Interchange Health Co-operative, from January 2018 to current, being made available to EML.
I object to the whole of my medical records from the Interchange General Practice being made available to the ACT Government and their Workers Compensation insurer EML for the following reasons.
1. My medical records at the Interchange General Practice date from 2015 and records prior to 24 November 2022, when I saw Dr Rebecca Uzzell to make a worker compensation claim are not relevant. On 24 November 2022, Dr Uzzell diagnosed me as having exacerbation of generalised anxiety disorder and major depressive disorder with symptoms of anxiety, insomnia, reduced motivation and fatigue. I subsequently made a workers compensation claim.
2. EML has not provided me with any valid reasons why they now need to access my whole medical records and why this has changed since their original request.
3. EML has not specified what additional information they need from me or from my doctor which they believe is relevant to my workers compensation claim. It is not acceptable for them to trawl through my medical records on a fishing expedition and then decide what is relevant. They are not trained doctors and I have already provided the relevant information from Dr Uzzell.
4. Only information relevant to my claim should be considered for my claim. I have already provided this information, namely copies of my medical records, medical certificates and Dr Uzzell’s report of 3 February 2023. I note that in this report Dr Uzzell responded to all of EML’s questions.
5. The ACT Government is required to be a model litigant. EML, as the ACT Government’s contracted Workers Compensation insurer is therefore required to be a model litigant too. That is, they need to behave ethically, fairly and honestly in their dealings with me.
6. There is no legal, ethical or moral basis for obtaining all of the medical records.
As I comprehend Mr Bakker’s accession and his objection, he does not object to the ACT inspecting the Interchange materials from January 2018 to the present, even though he considers documents prior to 24 November 2022 are not relevant. No explanation has been given by Mr Bakker for the selection of January 2018 as a cut-off or threshold before which the Interchange materials have no relevance.
Mr Bakker’s claim is in respect of “Exacerbation of generalised anxiety disorder and major depressive disorder with symptoms of anxiety, insomnia, reduced motivation and fatigue” diagnosed by Dr Uzzell on 24 November 2022.[9] The doctor included the following information in her medical certificate which accompanied Mr Bakker’s compensation claim:
[9] T4 and T5, folio 13.
The key issue to be decided in this review is whether Mr Bakker’s compensation claim is made out under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act). The actual scope of the claim is a matter for the Tribunal to determine.[10]
[10] Kennedy v Comcare [2014] FCA 82 at [45].
When considering Mr Bakker’s compensation claim under the SRC Act, the following statutory questions arise:
(a)Did Mr Bakker suffer an aggravation of an ailment as those terms are defined in s 4(1) of the SRC Act?
(b)If so, was the ailment or aggravation contributed to, to a significant degree, by Mr Bakker’s employment such that it meets the threshold for a disease under s 5B of the SRC Act?
(c)If so, is the disease an injury under s 5A of the SRC Act?
(d)If so, is the ACT liable for the injury under s 14 of the SRC Act?
When considering a claim in respect of an exacerbation, necessarily, the Tribunal must consider evidence and make relevant factual findings in respect of the pre-existing ailment which was allegedly exacerbated, as well as the circumstances which allegedly resulted in the exacerbation. Moreover, for the purposes of s 5B of the SRC Act, the Tribunal is required to have regard to the matters set out in s 5B(2):
(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.
As can be seen, the Tribunal should take account of any predisposition Mr Bakker might have to the ailment or aggravation and any other matters affecting his health. This requires consideration of Mr Bakker’s predisposition to exacerbation of his previously existing ailments and patterns of related symptomatology, including those alleged in his compensation claim. Any previous exacerbations Mr Bakker has experienced since the onset of his existing ailments might be relevant when determining his predisposition, if any, to such occurrences.
In the context of the Tribunal’s review, factual issues of this kind, involving the nature and progress of Mr Bakker’s previously existing ailments require careful examination of circumstances over a period prior to the alleged onset of symptoms he specified in the compensation claim form.
Addressing these matters, the Tribunal cannot draw factual findings from thin air. It must make factual findings on the basis of evidence placed before it by the parties.
The Tribunal must ensure each party is given a reasonable opportunity to prepare and present their case under s 39(1) of the AAT Act. This includes a reasonable opportunity for each party to obtain and place before the Tribunal relevant materials. Under the obligations imposed by s 33(1AA) and (1AB) of the AAT Act, parties assist the Tribunal to make the correct or preferable decision by ensuring all relevant materials are placed before it. This is a task which commonly involves obtaining materials of apparent or adjectival relevance under summons, including clinical and other medical records over a long period, and drawing from such material documents of direct or forensic relevance.
It is in this context the apparent or adjectival relevance of the Interchange materials must be considered.
I am satisfied there is a real possibility Mr Bakker’s clinical treatment records in the Interchange materials from 2015 might illuminate matters the Tribunal must consider in this review. I do not accept the proposition the ACT is attempting a fishing expedition when pressing for leave to inspect the Interchange documents. The assertion the ACT lacks a valid reason to press for such leave and is acting in a manner contrary to the model litigant rules is not made out.
In order to determine if Mr Bakker’s compensation claim should be accepted, the Tribunal must apply the thresholds set out in the legislation I have identified. The nature of his claim is such that it requires consideration of the nature and progress of his previous psychological ailment. For this purpose, and in order to make relevant factual findings, including for the purposes of s 5B of the SRC Act, probative materials are required. There is a real possibility the Interchange documents might include relevant documents or documents which might be put to a legitimate forensic purpose when this application comes to hearing. Each party is entitled to prepare their case on a mosaic of relevant materials, including materials of adjectival relevance obtained under summons. I am satisfied the ACT has a legitimate purpose in pressing for access to the Interchange documents in their entirety.
Mr Bakker’s interest in maintaining privacy over his personal medical records can readily be understood and accepted. Nevertheless, in this instance, his objection to the ACT being granted leave to inspect the Interchange materials, in their entirety, is not made out and must be refused.
I note in closing, even though leave is granted for the ACT to inspect the Interchange documents, the ACT must not use the Interchange documents for any purpose outside these proceedings.
Decision
Objections not upheld.

I certify that the preceding 27 (twenty-seven) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member.

.....................[SGD]..........................
Associate
Dated: 20 September 2023

Applicant:

Self-Represented

Solicitor for Respondent:

Mr Vanessa Parkins, Moray & Agnew Lawyers

Applicant:	Self-Represented
Solicitor for Respondent:	Mr Vanessa Parkins, Moray & Agnew Lawyers