Bakker and Australian Capital Territory (Compensation) - [2023] AATA 2770

Bakker and Australian Capital Territory (Compensation) [2023] AATA 2770 (30 August 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:30 August 2023
Place:Canberra

Objections not upheld.
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Mr S. Webb, Member
Catchwords
PRACTICE AND PROCEDURE – review of decision refusing compensation claim in respect of alleged injury – psychological ailment – application for summons – 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
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
Panagiotou and TNT Australia Pty Ltd (2011) 127 ALD 340; [2011] AATA 565
South Pacific Hotel Services Inc v Southern Pacific Hotel Corporation Ltd [1984] 1 NSWLR 710
Trade Practices Commission v Arnotts Pty Ltd & Ors [1989] FCA 248
Wong v Sklavos [2014] FCAFC 120

REASONS FOR DECISION
Mr S. Webb, Member
30 August 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 resulting proceedings, the ACT’s legal representative, Moray & Agnew, requested the Tribunal to summons materials from the Hobart Place General Practice (Hobart Place), Services Australia and the Australian Federal Police (AFP). Materials were subsequently produced in compliance with each summons. 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 lodged objections to the ACT being granted access to the produced materials.
In reference to the Hobart Place documents, Mr Bakker’s objection is in respect of clinical records up to January 2018 on grounds of relevance and privacy. He consented to EML being granted leave to inspect Hobart Place records from January 2018 to 23 December 2022.
Mr Bakker’s objection in respect of the Services Australia documents is raised on grounds of relevance and delay. His objection is in respect of Services Australia records prior to 1 July 2018.
Mr Bakker’s objection in respect of the AFP documents applies to all the documents produced by the AFP and it is raised on grounds of relevance and procedural fairness.
Each party has provided written submissions and agreed the matters can be decided without a hearing.
It is these matters, alone, which are the subject of this interlocutory decision.
Principles
Leave to inspect documents produced under a Tribunal summons may be granted by an authorised member 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.
As can be seen, the grant of leave involves exercise discretion. The relevant principles which are applicable when deciding objections of the kind the Mr Bakker has made are well established. At a minimum, the material sought must have apparent or adjectival relevance to the issues for determination in the proceedings.[1]
[1] 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. [2] 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[3] and there is a real possibility that they may assist in the resolution of the issues in the proceedings;[4] 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,[5] 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.[6]
[2] BrisConnections Finance Pty Ltd (Receiver and Manager Appointed) v Arup Pty Ltd [2016] FCA 906 at [25].
[3] Trade Practices Commission v Arnotts Pty Ltd & Ors [1989] FCA 248 at [41].
[4] Comcare v Maganga [2008] FCA 285 at [37].
[5] Hunt v Wark (1985) 40 SASR 489 per King CJ at [493].
[6] 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. [7]
[7] 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
In order to properly comprehend the questions of relevance, it is necessary to expose the issues for determination in the review proceedings before the Tribunal.
The key issue before the Tribunal is whether Mr Bakker’s compensation claim is made out under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act). The claim is in respect of an alleged injury in the form of a psychological ailment, namely “Exacerbation of generalized anxiety disorder and major depressive disorder – with symptoms of anxiety, insomnia, reduced motivation, fatigue”. The Tribunal must determine for itself the true scope of the claim and conduct the review on that basis.[8]
[8] Kennedy v Comcare [2014] FCA 82 at [45].
In order to determine if Mr Bakker’s claim is made out, the following statutory questions arise:
(a)Did Mr Bakker suffer an ailment or an aggravation of an ailment as those terms are defined in s 4(1) of the SRC Act?
(b)If so, is the ailment or aggravation 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?
In order to answer these questions, necessarily, the Tribunal will consider the relevant materials in evidence and make factual findings.
As Mr Bakker claim is in respect of an exacerbation of existing psychological ailments, it will be necessary to make factual findings about the previously existing ailments and the occurrence of the alleged exacerbation. Furthermore, in order to address the second statutory question, the Tribunal must apply the definition of ‘disease’ set out in s 5B of the SRC Act:
(1) In this Act:
disease means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(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.
(3) In this Act:
significant degree means a degree that is substantially more than material.
As can be seen, when deciding if Mr Bakker’s ACT employment significantly contributed to the ailment, or aggravation of the ailment, under the terms of his compensation claim, the Tribunal may take into account the matters set out in s 5B(2). While the word may is permissive, in this context it has a directorial character. The Tribunal must take into account all relevant matters, including relevant matters set out in s 5B(2). Consequently, the Tribunal will be required to make factual findings about relevant aspects of Mr Bakker past health and any predisposition he might have to aggravation of his existing ailments. It may be relevant to consider any previous aggravations Mr Bakker has experienced since the onset of his existing ailments, as well as any predisposition he may have to such ailments and aggravations. Factual enquiries of this kind are not confined to the circumstances alleged in a compensation claim. Commonly, such enquiries involve examination of materials, including clinical and other medical records, over a long period, even from childhood, and consideration of a claimant’s predispositions to and patterns of related symptomatology. This is especially so when addressing a claim in which the exacerbation of previously existing psychological ailments is alleged and, in order to determine if the statutory threshold of a disease is met, it is necessary to consider the nature and progress of the previously existing ailments and any predispositions of the claimant.
It is in this context the adjectival relevance of the Hobart Place documents must be considered. I am satisfied there is a real possibility Mr Bakker’s clinical treatment records might illuminate matters the Tribunal must consider in this review.
Mr Bakker’s objection on privacy grounds can readily be understood, but it is not made out for two reasons. Firstly, by making a claim for compensation in relation to an alleged injury in the form of an exacerbation of previously existing psychological ailments, Mr Bakker recognises relevant medical records may assist making the correct or preferable decision. It is for this reason he consented to the ACT being granted leave to inspect the Hobart Place documents from January 2018 to 23 December 2022. In that context, his privacy objection in respect of the preceding Hobart Place documents is pressed on grounds such earlier records are not relevant to his claim. As I have found, those earlier documents are adjectivally relevant to matters the Tribunal must take into account, and the relevance aspect of Mr Bakker’s privacy objection is incorrect.
Secondly, while it can be accepted the Hobart Place documents contain private information, it is necessary to consider the competing interests of Mr Bakker’s right to privacy and the public interest in ensuring the correct or preferable decision is made, taking into account any relevant materials. On this point, it is apposite to recite what Clarke J said in South Pacific Hotel Services Inc v Southern Pacific Hotel Corporation Ltd:[9]
“... the need to balance the reasonableness of the burden imposed upon the recipient and the invasion of his private rights with the public interest in the due administration of justice and, in particular, that all material relevant to the issues be available to the parties to enable them to advance their respective cases. There is, in every case, a clash between these competing interests and whilst the balancing exercise to which I have referred must be carried out, it is the latter interest which is predominant.”
[9] [1984] 1 NSWLR 710 at 719.
It is also apposite to reiterate what the Tribunal said in Panagiotou and TNT Australia Pty Ltd:[10]
The fact that any applicant must face when applying for review of a decision in the Tribunal is that things that are personal to him or to her must be revealed if they are relevant to the issues raised by his or her application.
[10] (2011) 127 ALD 340; [2011] AATA 565 at [24].
In note in passing Mr Bakker’s privacy objection is not asserted under the privacy laws of the ACT or the Commonwealth. Being mindful of the content of relevant ACT and Commonwealth statutes and the allowance for use or disclosure of a person’s medical or health records under an Australian law or by order of a Court or Tribunal, I am satisfied the operation of ACT and Commonwealth privacy enactments do not require Mr Bakker’s privacy objection to be upheld.
Considering these matters, I am not persuaded Mr Bakker’s objections in respect of the Hobart Place documents should be upheld. Mr Bakker’s concession that he had pre-existing psychological conditions for which he obtained treatment does not address the point of the enquiry in respect of previous exacerbations or aggravations of symptomatology and any predisposition he might have to such symptomatology.
The same conclusions are reached in respect of Mr Bakker’s objections to the documents produced by Services Australia. Just as Mr Bakker’s clinical treatment records are adjectively relevant to the matters to be determined in this review, so too are the Services Australia records of medical treatments Mr Bakker has obtained. These records are likely to include information about practitioners who provided treatments Mr Bakker obtained, as well as the kind of treatment prescribed. There is a real possibility records of this kind might assist understanding the progress of his previously existing psychological ailments and the occurrence of aggravations or exacerbations of related symptoms in the past. Mr Bakker’s objection in respect of the Services Australia documents is not upheld.
In this context, Mr Bakker has raised an objection on grounds of delay. It is conceivable the ACT might engage in further enquiries based on information contained in the documents produced by Services Australia, should access to those documents be granted. Such enquiries could only be pursued for a legitimate forensic purpose in the context of these proceedings. If access is granted, there is no authority for the ACT to use the Service Australia documents for any other purpose. Consequently, having regard to the objectives set out in s 2A of the AAT Act, there are competing interests in the balance:
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.
As can be seen, quickness is not the only consideration. The desirability of economy, informality and quickness must be weighed against considerations of fairness, proportionality and public trust.
At this stage in the proceedings, if the ACT were to engage in further legitimate forensic enquiries based on information contained in the Services Australia records, while some additional time might be required, I am not persuaded the resulting effect on the overall duration of the proceedings outweighs the desirability of ensuring the review in this case is conducted fairly and thoroughly, in proportion to the complexity of the matters raised in Mr Bakker’s claim. It is by conducting a thorough and impartial review, affording each party a reasonable opportunity to prepare their case on the basis of legitimate enquiries for the purposes of obtaining relevant materials, that public trust and confidence is supported. Mr Bakker’s objection on grounds of delay is not upheld.
Mr Bakker has raised relevance and procedural fairness objections in respect of the AFP documents. With regard to issues of relevance, in addition to the principles I have outlined above, Mr Bakker’s claim is pressed, at least in part, on the information contained in statements he has made. At the heart of the issue is Mr Bakker’s claim his claimed injury was resulted from the conduct of other employees in his place of employment.[11] In statements he has provided,[12] Mr Bakker has fleshed out his claim and alleged he was the subject of psychological and emotional abuse and sexual harassment by co-workers in his employment.
[11] T5.
[12] T17 and T21.
The ACT asserts Mr Bakker was charged and convicted of a criminal offence involving one of the alleged perpetrators.
Documents relating to such charge and conviction have a real possibility of shedding light on matters of relevance to Mr Bakker’s compensation claim. It is not to the point that EML did not previously seek or rely on information relating to Mr Bakker’s offending conduct where there is a real possibility information in the AFP documents might bear upon issues in this review. Furthermore, Mr Bakker’s failure to disclose circumstances of his past offending conduct relevant to his claim is a matter which, itself, might be a matter of legitimate forensic enquiry in cross-examination.
Mr Bakker’s objection to the ACT being granted leave to inspect the AFP documents on grounds of relevance is not upheld.
Mr Bakker’s assertion he would not have opportunity to address any inaccuracies or misrepresentations in the AFP documents and this would result in a lack of procedural fairness is not made out. Even though Mr Bakker has not expressly raised any issue of prejudice to his case which might be caused should the ACT be given leave to inspect and use the AFP documents for the purposes of these proceedings, his objection can readily be understood in such terms.
The Tribunal is alive to Mr Bakker’s concerns and there is ample opportunity for him to be given opportunity to address any matter arising from the AFP documents in his written and oral evidence before any findings are made. Any alleged inaccuracies or misrepresentations in the AFP documents can be addressed in the hearing of Mr Bakker’s application. Insofar as Mr Bakker’s assertion of procedural unfairness is directed to use of the AFP documents by the ACT in preparation of its case, in the briefing of an expert witness for example, the Tribunal has powers under s 33 of the AAT Act which may be called upon to ensure the proceedings are conducted in a manner which is procedurally fair, or under s 35 of the AAT Act to prevent disclosure of information where there is reason to do so.
Mr Bakker’s objection to the ACT being given leave to inspect the AFP documents on grounds of procedural fairness is not upheld.
In conclusion, therefore, Mr Bakker’s objections are not upheld.
The ACT will be granted leave to inspect the Hobart Place documents, the Services Australia documents and the AFP documents forthwith.
Decision

Objections not upheld.

I certify that the preceding 39 (thirty-nine) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member.

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Associate
Dated: 30 August 2023

Application heard on the papers

Date final submissions received

13 August 2023

Application heard on the papers
Date final submissions received	13 August 2023