Carver and Comcare (Compensation) - [2019] AATA 1534

Carver and Comcare (Compensation) [2019] AATA 1534 (28 June 2019)
Division:GENERAL DIVISION
File Number(s): 2017/5362, 2017/6342 & 2017/6343
Re:Miranda Carver
APPLICANT

AndComcare
RESPONDENT

AndHobart Occupational Medicine
OTHER PARTY

DECISION
Tribunal:Ms S Taglieri SC, Member
Date:28 June 2019
Place:Hobart

Pursuant to regulation 13(7) of the Administrative Appeals Tribunal Regulation 2015 the Tribunal determines that Dr Sharman, as the Proper Officer of Hobart Occupational Medicine, is entitled to recover:
(a)Fees for appearing at the return of summons hearing on 26 February 2018 and complying with the summons, pursuant to regulation 13(3) in the sum of $380.
(b)An allowance pursuant to regulation 13(6), in the sum of $1,256.64 (upon providing evidence of payment to Dobson Mitchell Allport).

..................................[sgd]...................................
Ms S Taglieri SC, Member
PRACTICE AND PROCEDURE – summons – summons to third party to produce documents – amount of fees and allowances payable in relation to compliance with summons – reasonable expenses – payable for appearance at direction of Tribunal – payable for production of documents
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), ss 2A, 33, 40A, 67
Administrative Appeals Tribunal Regulation 1976 (Cth), regulation 16, Schedule 2
Administrative Appeals Tribunal Regulation 2015 (Cth), regulations 13, 14, 15
Safety, Rehabilitation and Compensation Act 1988 (Cth)
CASES
Bestt and Military Rehabilitation and Compensation Commission [2017] AATA 1235
Boyle and Commissioner of Taxation [2005] AATA 584; 87 ALD 377
Deposit & Investment Co Ltd v Peat Marwick Mitchell & Co (1996) 39 NSWLR 267
Frontier Assets Pty Ltd v Fishburn [2011] NSWSC 334
Mouat and Telstra Corporation Limited [2011] AATA 267
Pan Pharmaceuticals Ltd; Selim v McGrath [2004] NSWSC 129
Sullivan and Department of Transport [1979] AATA 170
Waind v Hill and National Employers’ Mutual General Insurance Association Limited [1978] 1 NSWLR 372
SECONDARY MATERIALS
Brown R A, Documentary Evidence in Australia (2^nd ed, LBC Information Services, 1996)
REASONS FOR DECISION
Ms S Taglieri SC, Member
28 June 2019
INTRODUCTION AND BACKGROUND

Applications were made to this Tribunal in respect of entitlements of Miranda Carver to receive compensation under the Safety, Rehabilitation and Compensation Act 1988.
It appeared to be common ground between the parties that Dr Peter Sharman, an occupational physician, was a treating doctor of Ms Carver in respect of the conditions for which she had made claims for compensation and which were the subject of the Tribunal applications. He was also regarded as the ‘The Proper Officer’ of Hobart Occupational Medicine, a medical practice of which he was a Director.
Ms Carver withdrew her applications on 10 September 2018 and ultimately no merits hearing was required. Before her withdrawal, Comcare (the Respondent) requested that the Tribunal issue a summons to ‘The Proper Officer, Hobart Occupational Medicine’. The summons was issued according to the usual practices in the Tribunal and was dated 28 November 2017 (the Summons).
Having received the Summons, Dr Sharman wrote to the Tribunal on 3 January 2018 and other times, raising concerns about the requirement for production of records.…

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.

Continue reading Carver and Comcare (Compensation)

Details

AGLC: Carver and Comcare (Compensation) [2019] AATA 1534
Case: [2019] AATA 1534
Decision Date: 28 June 2019

CaseChat Overview and Summary

This matter concerned an application by Dr Peter Sharman, who adduced evidence comprising his own oral evidence and that of Dr Thomson, a general practitioner. Dr Sharman also tendered several documents in support of his application. The Administrative Appeals Tribunal considered the evidence presented, including tax invoices, bundles of documents, correspondence regarding summons protocols, an opinion piece on court proceedings, and transcripts of previous Tribunal proceedings. The evidence of Dr Thomson, who had no direct involvement in Ms Carver's case, focused on his experience with file requests from insurance companies and his practice when served with subpoenas or summonses to produce documents.

The legal issues before the Tribunal included the proper approach for medical practitioners when faced with requests or summonses for patient records, the extent of a doctor's professional duty in such circumstances, and whether medical practitioners are generally aware of their rights to object to such requests. Specifically, the Tribunal considered Dr Thomson's evidence regarding his practice of discussing the implications of releasing records with patients and his belief that doctors have a professional responsibility to explain these implications. The Tribunal also examined Dr Thomson's opinion on whether doctors are aware of avenues to object to summonses for complete medical files.

The Tribunal considered the evidence of Dr Thomson, who testified about his extensive experience with legal requests for medical documents. He stated that when served with a summons, his practice was to discuss the implications with the patient, as he believed patients generally considered their files confidential and might be surprised by a compulsion to release them. Dr Thomson also expressed the view that it was a doctor's professional duty to explain the implications of consenting to the release of information. However, he conceded that this practice was variable within the medical profession and that, in his experience, doctors were not generally aware of avenues to object to a summons for a complete medical file.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Dr Sharman adduced evidence comprising of his own oral evidence and that of Dr Thomson, a general practitioner. Dr Sharman also tendered a number of documents in support of his application and the Tribunal considered the following exhibits:(a)Exhibit A1 – Tax invoice from Dr Peter Sharman and addressed to LSL Lawyers relating to Miranda Carver dated 26 July 2018;(b)Exhibit A2 – Bundle: document list from Dr Sharman and all documents listed therein;(c)Exhibit A3 – Email of 6 February 2019 from Kate Lynch, Administrative Appeals Tribunal to Dr Sharman, subject ‘Summons Protocol at the AAT’;(d)Exhibit A4 – Linkedin opinion piece by Nicholas Ford entitled 'The courts and us V1.3', published 25 March 2019;(e)Exhibit A5 – Transcript of Administrative Appeals Tribunal proceedings from 26 February 2018 before Deputy President Melick in the matter of Carver and Comcare (2017/5362, 2017/6342, 2017/6343, 2018/1178 & 2018/1473);(f)Exhibit R1 – Copy of letter dated 3 January 2018 from Dr Sharman to the Tribunal concerning summons to produce documents; and(g)Exhibit R2 – Letter from Dr Sharman to the Registrar of the Administrative Appeals Tribunal dated 5 February 2018.Evidence of Dr Thomson The substance of the evidence led from Dr Thomson was that he had no involvement in Ms Carver’s case but was experienced in dealing with file requests from insurance companies, as well as situations where he had been served with a subpoena or summons to produce documents. He stated that he had considerable experience with respect to legal requests but rarely had been exposed to subpoenas.[16][16] Transcript, 18 January 2019, p 29, line 25. In evidence in chief, Dr Thomson gave evidence about his practice when he received a request from a lawyer or insurance company to provide records relating to a patient and his practice pursuant to a summons. Dr Thomson stated that when served with a summons he would want to ‘talk to the patient about the implications’.[17] Dr Thomson also gave evidence about his approach to notetaking, the purpose of making a note and interpretation of his notes. He said that most patients believed that their file with a doctor was confidential and so it came as a surprise to them that he might be compelled or required to provide the file to others and a court.[18][17] Transcript, 18 January 2019, p Page 31, line 10.[18] Transcript, 18 January 2019, p 32, lines 4-10. Dr Thomson also considered that it was a responsibility or role of a doctor to explain to patients the implications of giving consent to release information and that this was part of a doctor’s professional duty.[19] However he conceded that the practice was variable and not all doctors in the medical profession would share his attitude.[20][19] Transcript, 18 January 2019, p 32, lines 22-39.[20] Transcript, 18 January 2019, p, line 43. When asked whether, in his experience, doctors were aware that avenues existed for them to object to a summons for a complete medical file, Dr Thomson stated no, he did not think so.[21] [21] Transcript, 18 January 2019, p, line 47.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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