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:

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

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

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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

1. 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.

2. 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

1. 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 …”

2. 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.

3. 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 medical condition, merely appealed the decision made by Comcare upon the evidence Comcare based that decision on. The evidence that Comcare based that decision, is before the AAT”.

4. That contention, and the balance of Mr Booker’s letter, betrays a fundamental misapprehension about the nature of a review in this Tribunal and seems to confuse the merits review of this Tribunal with an appeal in the strict sense. Given the nature of the decision under review, Mr Booker’s medical condition is the subject matter of the proceedings; the way in which Comcare reached that decision is of no particular consequence to the conduct of merits review.

5. Given that Dr Delaforce was Mr Booker’s treating psychiatrist I would have thought the documents produced by him to be prima facie relevant to the issues in the proceedings. I overrule Mr Booker’s objection and will direct that Comcare have leave to inspect and copy the documents produced by Dr Delaforce.

The summons to Comcare

1. Mr Booker seeks the issue of a summons directed to Comcare for the production of:

   “From comcare computer records or files a list of all psychiatrists with phone numbers & addresses used by comcare in the last 10 years and the psychiatrists no longer acting for comcare and the reasons why they no longer act. A list of all clients of comcare by file reference number where a psychiatrist has been used with cross reference to AAT reference number where appropriate. The results of the psychiatrist examinations i.e. favourable to client or comcare for all the proceeding. With all the preceding for the psychiatrist “Morris” in my matter separated for comparison purposes.”

2. The reference to “Morris” is a reference to Dr Philip Morris, a psychiatrist whose reports were relied upon by Comcare in the making of the original determination. The note sent by Mr Booker in support of his request to issue the summons indicates that his intention in seeking the issue of the summons is “to discredit the evidence of Dr Morris by demonstrating bias and a history of bias by Comcare”.

3. The application for the issue of the summons fails at a number of levels. First, it would offend the ordinary rule that prevents the issue of a summons to produce documents that go only to credit. Moreover, insofar as it seeks to attack the “credit” of Comcare by suggesting bias on its part it is irrelevant. It may, arguably, be relevant and go to the weight of the opinion of an expert, if, for example, it could be shown that in cases such as the present the expert was only ever retained by one side or the other, but the summons sought here goes well beyond that. It seeks details of all psychiatrists used by Comcare in the past 10 years together with details of the applicants in each case.

4. There is the further difficulty which is that it is not apparent that the summons seeks the production of documents that exist. It seems to me that it requires Comcare to undertake considerable research to produce the documents that answer the description in the summons.

5. If Mr Booker wants to make a point that Dr Morris is only ever engaged by respondents or defendants (and I make it plain that I have no idea whether that is true or not) it is open to him to put that proposition to Dr Morris if Comcare relies upon his report and, if Dr Morris were to accept the proposition, it is open to Mr Booker to submit that his opinion ought be given less weight or no weight because of that.

6. I would refuse to issue a summons in the terms sought.

The appointment with Dr Reddan

1. The appointment in issue is scheduled for later this month. Mr Booker seems to want to argue that the requirement of Comcare for him to attend the appointment is “unlawful” as he is no longer an employee. As I sought to point out to Mr Booker in the course of the directions hearing, “employee” is defined in the SRC Act and it is that definition, rather than a popular conception of what an employee is, that will determine the issue. It is neither necessary nor appropriate for me to make a ruling on the lawfulness of the requirement to attend the medical appointment and I do not intend to do so. I would however strongly urge Mr Booker to seek legal advice before embarking upon a course that may (and I express no view on the matter) put the continuation of his proceedings in jeopardy.

I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC

Signed:         .............................................................................

Jacqueline Woods, Associate

Date of Hearing  11 September 2008
Date of Direction  16 September 2008
Applicant  Self-represented
Solicitor for the Respondent     Sparke Helmore