Booker and Comcare - [2008] AATA 827

Administrative Appeals Tribunal

DIRECTION AND REASONS FOR DIRECTION [2008] AATA 827

ADMINISTRATIVE APPEALS TRIBUNAL
No: 2007/6273

General Administrative Division

Re: ROBERT BOOKER
Applicant

And: COMCARE
Respondent

DIRECTION

TRIBUNAL: Deputy President P E Hack SC

DATE: 16 September 2008

PLACE: Brisbane

The Tribunal DIRECTS that:

Comcare has leave to inspect and copy the documents produced by Dr Robert Delaforce.

The applicant’s request to issue a summons to Comcare is refused.

.......................................................

Deputy President

CATCHWORDS

PRACTICE & PROCEDURE – summons documents – inspection – relevance of documents – documents found to be relevant to the application – issuing of summons – documents go only to credit – documents may not exist – summons refused

REASONS FOR DIRECTION

16 September 2008

Deputy President P E Hack SC

Introduction

Mr Robert Booker has an application before the Tribunal in which he seeks a review of a decision of the respondent, Comcare, made on 20 July 2007, to deny “present liability” to pay compensation on the basis that Mr Booker was not then suffering the effects of his compensable condition, anxiety state and bipolar disorder.
I am concerned with three matters:
a.Mr Booker’s application that the Tribunal should refuse access to Comcare to documents produced to the Tribunal in response to a summons directed to Dr Robert Delaforce, Mr Booker’s treating psychiatrist;
b.Mr Booker’s application for the issue of a summons directed to Comcare;
c.A requirement made by Comcare, apparently in reliance upon s 57 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act), that Mr Booker attend a medical appointment with Dr Jill Reddan, a psychiatrist, later this month.

The summons to Dr Delaforce

The summons was issued at the request of Comcare and required the production of:
“All medical records, reports, letters of referral, specialists’ reports, clinical notes, correspondence and treatment cards relating to Robert Booker …”
On 8 April 2008, on the return date of the summons, an order was made that Mr Booker have leave to inspect and copy the documents produced and, if he had any objection to Comcare inspecting or copying the documents, he was required to notify the Tribunal in writing within seven days after the date of the direction. Comcare’s right to inspect and copy was subject to any objection by Mr Booker.
Mr Booker objected within the time specified however it has taken more time than desirable to determine the objection, in part due to administrative oversight in the Tribunal and in part to Mr Booker’s absence overseas. The basis of Mr Booker’s objection, as articulated in his letter to the Tribunal of 10 April 2008 and in oral argument before me, was that the material had “no relevance” to the proceedings in the Tribunal. That contention was articulated in this way in the letter of 10 April 2008:
”My application before the AAT is to have the Comcare decision to cancel my entitlements overturned. Note the specific appeal, I have appealed a ‘decision’. I have not asked for a review of my…

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: [2008] AATA 827
Decision Date: 16 September 2008

CaseChat Overview and Summary

The case of Robert Booker against Comcare was heard before the Administrative Appeals Tribunal (AAT). Mr. Booker sought review of a decision by Comcare to deny compensation for his anxiety state and bipolar disorder, contending that he was suffering the effects of these conditions. The Tribunal was tasked with deciding on three key issues: Mr. Booker's objection to Comcare's access to documents produced by his psychiatrist, Dr. Robert Delaforce; his request to issue a summons to Comcare; and a requirement for him to attend a medical appointment with Dr. Jill Reddan.

Regarding the documents produced by Dr. Delaforce, the Tribunal noted that Comcare had the right to inspect and copy these documents, which were considered relevant to Mr. Booker's medical condition. Despite Mr. Booker's objections, the Tribunal ruled that the documents were necessary for the review process and thus denied his objection, allowing Comcare access to the documents. As for the summons to Comcare, the Tribunal dismissed Mr. Booker's request on the grounds that it would involve producing documents that only pertained to credibility and did not exist in the specified form. Finally, the Tribunal refrained from ruling on the necessity of Mr. Booker attending the medical appointment with Dr. Reddan but urged him to seek legal advice to avoid potential jeopardy to his case.

The Tribunal's decision granted Comcare access to the documents produced by Dr. Delaforce, refused Mr. Booker's request to issue a summons to Comcare, and advised Mr. Booker to seek legal counsel regarding the medical appointment requirement.

Orders