Carver and Comcare (Compensation)
[2019] AATA 1534
•28 June 2019
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, 15Safety, 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 170Waind v Hill and National Employers’ Mutual General Insurance Association Limited [1978] 1 NSWLR 372
SECONDARY MATERIALS
Brown R A, Documentary Evidence in Australia (2nd 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. Dr Sharman’s communications with the Tribunal were treated as an objection to the production of documents. A return of summons hearing was convened before Deputy President Melick on 26 February 2018 to deal with the objections raised by Dr Sharman.
At the hearing referred to in the preceding paragraph Dr Sharman appeared on his own behalf and made various submissions as to his opposition to production of the entirety of documents referred to in the Summons. The Respondent was represented by a legal practitioner, Ms Watson, and Ms Carver was represented by Mr Ghaleb, her solicitor at the time.
Before Deputy President Melick, the substance of Dr Sharman’s submissions was essentially that which he had set out in a letter of 5 February 2018. He expressed concern about privacy, patient-doctor confidentiality and the effect of being compelled to produce the entirety of records on the treatment of the patient.[1]
[1] Transcript, 26 February 2018, p 2, lines 20-24.
In oral submissions before Deputy President Melick, Dr Sharman raised:
(a)Concerns about the negative effect from access by insurers to released confidential medical records and this being a matter of principle not just of concern to him but also the President of the Royal Australian College of General Practitioners;[2]
(b)The requirement to produce entire records of a patient meaning it is less likely that there will be frank and open discussions with the patient and it being tempting for him as a doctor not to record the discussions in the file, which is contrary to good medical practice principles;
(c)As it was becoming more common for his records to be summoned, it was getting to the point he would need to advise all his patients that his files may be subpoenaed or summoned, which in turn would affect their willingness to be totally open and frank, particularly where psychosocial factors were important;[3]
(d)The Respondent had not specified which records of his they required and he considered that the Respondent was on a fishing expedition;[4]
(e)The nature of his recordkeeping, which entailed electronic file and hardcopy file, that created a need to go through email and text records in addition to electronic and phone communications to ensure that everything required to be produced was in fact produced;[5]
(f)That as an occupational medicine practice, his practice was unique in that patients were referred to him for advice or opinions about the pros and cons of making workers’ compensation claims, not from a legal perspective but from a health perspective;[6]
(g)That he respected the court’s jurisdiction and the need to sometimes release an entire file but he had concerns about the practice of issuing summonses for the release of entire files to assist an insurer to brief an Independent Medical Expert (IME). He regarded this as unnecessary, undermining the confidence of patients in the confidentiality of their consultation and making it more difficult to work effectively as an occupational physician; and
(h)That he did not object to releasing specific information if properly identified as relevant to an IME assessment, that if he was directed to release the file he required guidance as to what documents he ought to include, and that he considered provision of the entire file wasteful of his time and paper.
[2] Transcript, 26 February 2018, p 3, lines 7-14.
[3] Transcript, 26 February 2018, p 3, lines 16-24.
[4] Transcript, 26 February 2018, p 3, line 30.
[5] Transcript, 26 February 2018, p 3, lines 40-48.
[6] Transcript, 26 February 2018, p 4, lines 4-20.
The Respondent’s representative was invited to make submissions and the Deputy President inquired whether the Respondent could limit the materials it required under the Summons.
The Respondent’s representative, in her submissions:
(a)Conceded there was some merit in the submission about a fishing expedition; and
(b)Explained the Respondent’s routine practice of seeking an entire record from a doctor was precisely the reverse of a fishing expedition.[7]
[7] Transcript, 26 February 2018, p 5, line 16 onwards.
The essence of the submission by the Respondent’s representative was the Respondent had no capacity to determine what was relevant until they saw all of the material.
Deputy President Melick raised with the Respondent’s representative that he saw some merit in Dr Sharman’s submissions, particularly in the context of medical files containing intensely personal information that may not be related in any way to the claim. The Deputy President asked for authorities that might assist him in determining the matter before him but the Respondent’s representative did not provide any.
Following discussion between the Deputy President and the Respondent’s representative about the principle of a summons needing to have a legitimate forensic purpose,[8] the Deputy President gave a preliminary view that the only practical way to deal with the matter before him was for him to look at the documents and discard those which he considered not to be relevant.[9]
[8] Transcript, 26 February 2018, p 6, line 18 onwards.
[9] Transcript, 26 February 2018, p 6, lines 42-43.
Ms Carver’s representative made no specific or additional submissions but accepted that the Deputy President’s practical solution was a pragmatic way forward.[10]
[10] Transcript, 26 February 2018, p 7, lines 20-21.
The Deputy President asked Dr Sharman to print his entire record and indicated he would review the documents before determining which documents, comprised of the summoned documents, would be made available for inspection by the parties.[11] Deputy President Melick identified that for the purposes of separating the documents that would be subject to inspection, he intended to apply the legitimate forensic purpose principle.[12]
[11] Transcript, 26 February 2018, p 7, line 44.
[12] Transcript, 26 February 2018, p 8, lines 5-8.
The Deputy President then indicated that he did not require production of emails nor text messages. The effect of Deputy President Melick’s request that Dr Sharman ‘print his complete file and provide it to the Tribunal’[13] appears to amount to a direction that Dr Sharman was to produce a paper file for the period 2008 to 2012/2013 and the electronic file for the period after that.[14]
[13] Transcript, 26 February 2018, p 7, line 40-45.
[14] Transcript, 26 February 2018, p 9.
Following the return of summons hearing, the Tribunal issued a list to Dr Sharman identifying those documents that had been removed by Deputy President Melick from the records produced. Both parties were given leave to inspect the reduced bundle of records.
On 26 July 2018 Dr Sharman wrote to the Respondent’s solicitors seeking reimbursement of reasonable expenses for compliance with the summons, referring to regulations 13, 14 and 15 of the Administrative Appeals Tribunal Regulation 2015 (the Regulation). The sum that Dr Sharman sought to be reimbursed was $6,061.47. This sum was comprised of various charges set out in a tax invoice dated 26 July 2018.[15]
[15] Exhibit A1.
On 3 September 2018 the Respondent’s solicitors wrote to Dr Sharman undertaking to pay the reasonable cost of producing 1038 pages of records in response to the summons. By reference to the obligations in regulation 13(7) of the Regulation, they agreed to pay $633.80, said to be an amount arrived at in accordance with the findings of the Tribunal in Bestt and Military Rehabilitation and Compensation Commission [2017] AATA 1235.
Dr Sharman was not satisfied by the sum offered by the Respondent’s solicitors and took the matter further, eventually making application to the Tribunal for a costs determination in respect of the costs for production of the records.
COSTS DETERMINATION HEARING
On 18 January 2019, the Tribunal conducted a hearing in respect of Dr Sharman’s application for a costs determination. Dr Sharman appeared on his own behalf while Mr Lehmann appeared for the Respondent.
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.
Dr Thomson was asked what advice he would give young doctors about whether a doctor could be held responsible if a file was produced under summons and there were adverse repercussions for the patient. He stated he would advise that it was possible the doctor could be held responsible if he or she had not objected when there was just cause to. However, under cross-examination Dr Thomson agreed that his answer involved giving a legal answer, when he did not know about the law.
Under cross-examination Dr Thomson maintained that, even though the patient’s authority was not required for release of materials under summons, he would still want to have a discussion with the patient to ensure he or she was informed.[22]
[22] Transcript, 18 January 2019, p 34, lines 13-23.
When the Tribunal enquired of Dr Thomson’s concerns relating to access to personal or private information about a patient and identified that the patient could object to inspection of the records, Dr Thomson conceded that the issue of personal information was the patient’s concern and not his.[23] However, he qualified this by stating that often he is an advocate for a patient in giving them some help about what they ought to do.
[23] Transcript, 18 January 2019, p 36, lines 23-24.
When the essence of Dr Sharman’s argument was put to Dr Thomson, namely that it is a professional responsibility of a doctor to undertake a risk assessment before producing an entire patient file under a summons, he replied that his concern and practice in that regard was mainly for the patient rather than it being a professional obligation.
In re-examination Dr Sharman explored the issue of whether a patient or others could understand the risks that might attach to a patient if confidential and private information was released. In the context of actual harm or the risk of harm to a patient themselves, Dr Thomson said he had not ever seen a situation like that.[24]
[24] Transcript, 18 January 2019, p 37, line 45.
Evidence of Dr Sharman
Dr Sharman gave evidence about the process he embarked on from the moment he was served with the summons and did so by reference to the tax invoice,[25] which was itemised and indicated each aspect of what he did. The effect of his evidence was that his time was engaged as follows:
[25] Exhibit A1.
(a)Considering what he was being asked to produce by reference to the wording in the summons;
(b)Identifying by reference to his practice’s recordkeeping systems what documents might exist that met the description in the summons;
(c)From those records, identifying documents that might be potentially harmful (which the Tribunal took to mean harmful to the psychiatric wellbeing of the patient if they were disclosed);
(d)Communicating with the Tribunal about what he was required to do and the concerns he had about producing the entirety of records;
(e)Meeting with Dr McArdle, another doctor in his practice who was also involved in Ms Carver’s treatment, to discuss her thoughts in relation to the Summons and whether there were any risks arising out of release of records;
(f)Communicating with a lawyer to seek legal advice;
(g)Communicating with his medical indemnity insurer;
(h)Further communicating with the Tribunal;
(i)Attending the return of summons hearing before Deputy President Melick on 26 February 2018; and
(j)Producing the materials pursuant to the direction received from Deputy President Melick on 26 February 2018.
In cross-examination, it was put to Dr Sharman that his concerns about production of the entire file and need to take advice were based on an ethical issue he had as a professional and that, as such, it was a matter involving a cost of being medical practitioner and a cost of his practice.[26] Whilst Dr Sharman accepted that the advice he received in Ms Carver’s case would be of general application, he saw the need to seek advice as arising from the service of the summons upon him, not as a general expense of his practice.[27]
[26] Transcript, 18 January 2019, p 56, lines 4-19.
[27] Transcript, 18 January 2019, p 56, lines 15-19.
Dr Sharman was asked to identify what the risk was to his patient of releasing the entire file. He stated it was risk of aggravation of her depression and worsening of her anxiety.[28] When asked whether that risk was related to release of the entire file or to specific documents, Dr Sharman stated that it related to release of the consultation notes because Ms Carver had previously expressed concerns about her privacy.
[28] Transcript, 18 January 2019, p 56, lines 22-23.
When asked whether he could have identified documents raising privacy concerns and put them in a sealed envelope, Dr Sharman stated that ‘it could be produced in a short frame of mind [sic]’.[29]
[29] Transcript, 18 January 2019, p 56, lines 44-46.
Mr Lehmann put to Dr Sharman that at no time had he identified a specific class or type of document that would give rise to a risk of harm to Ms Carver. Dr Sharman stated that although he did not list the documents specifically, he did identify them in a general way by description and in submissions at the hearing before Deputy President Melick.
Dr Sharman was cross-examined about his understanding of the reasons why Deputy President Melick removed some documents from those produced. He stated he believed the term used by the Registry staff was ‘relevance’ and that he had received a list of the excluded documents.
The Tribunal enquired of Dr Sharman whether he discussed receipt of the summons with Ms Carver. He stated that he thought he said to her ‘I don’t think this information should be released’ and that she had replied something along the lines of ‘good, I don’t want you to.’[30] When asked what the reference to ‘this information’ was in his discussion with Ms Carver, Dr Sharman stated ‘the whole file really.’
[30] Transcript, 18 January 2019, p 58, lines 10-14.
At the conclusion of his evidence under cross-examination Dr Sharman impressed the point that his approach to the Summons to produce in Ms Carver’s case was determined because of its unusual nature, meaning the length of the case, the nature of her condition and the circumstances in which she became unwell.
At the conclusion of Dr Sharman’s evidence, the Tribunal made directions adjourning the hearing and fixing a timetable for the parties to make further submissions. A direction was also made that the transcript of the return of summons hearing held on 26 February 2018 be provided to each of the parties.
The hearing resumed on 27 March 2019 and further submissions were received in writing and orally on behalf of both parties. The Respondent filed a written submission dated 4 March 2019 and Dr Sharman provided and tendered three further exhibits[31] and made oral submissions when the matter resumed for completion of the hearing.
[31] Exhibits A3, A4 and A5 referred to above in these reasons.
The submissions made on 27 March 2019 and in written submissions after the adjournment on 18 January 2019 did not materially alter the substance of the contentions by the parties or the evidence to be considered. Rather, they largely repeated and reiterated evidence already given/received and submissions made at the earlier hearing.
CONTENTIONS
Ultimately, the respective contentions of the parties can be distilled to the following.
Dr Sharman contends that the professional time a medical practitioner engages to respond to a summons to produce documents in the Tribunal should be reimbursed by the party requesting a summons or alternatively by the Commonwealth. This contention is based on the proposition that the value of a professional medical practitioner’s time when engaged in the tasks identified at paragraph 31 is a cost or expense incurred in producing summoned documents. A more fulsome expression of Dr Sharman’s contentions appear on the final page of Dr Sharman’s submission of 14 January 2019 under the heading ‘Requests of AAT’.
The Respondent, on the other hand, contends that in determining what costs should be paid by it to Dr Sharman for production of his records, the Tribunal must follow the established law[32] and must apply the Regulation.[33] The Respondent contends that the Tribunal ought not accept the contention that the medical practitioner’s professional time falls within the meaning of ‘reasonable expense’ in regulation 13(6) and further that regulation 13(3) has no operation in this instance.
[32] As set out fully in the written submissions made by the Respondent and dated 4 March 2019.
[33] Administrative Appeals Tribunal Regulation 2015 (Cth).
The Respondent also contends that the concept of ‘expense’ is a narrower meaning than ‘loss’ or ‘cost’ and the time engaged in deciding whether an objection ought to be made to production of records is not a cost of producing a thing within the meaning of the Regulation. The Respondent also made a catch-all submission that the costs claimed by Dr Sharman were, in any event, not reasonable.
PRINCIPLES OF LAW THAT NEED TO BE APPLIED
Section 40A of the Administrative Appeals Tribunal Act 1975 (the Act) empowers the issuing of a summons to either give evidence or produce documents/things or both.
Section 67(1) of the Act makes express provision for fees for complying with a summons:
Fees for compliance with summons
(1) A person who, under a prescribed provision of this Act or another enactment, is required to give evidence, or produce a document or give information, for the purposes of a proceeding before the Tribunal is to be paid, in accordance with the regulations, any fee or allowance prescribed by the regulations in relation to compliance with the requirement.
The fee to be paid must be in accordance with the regulations in relation to compliance with the requirement and refers to payment for three types of action that can be required by summons: a requirement to give evidence, a requirement to produce a document and a requirement to give information. In these proceedings the relevant regulations are in the Administrative Appeals Tribunal Regulation 2015 (Cth).
There appears to be some ‘disconnect’ between s 40A and s 67 of the Act. The types of requirement that may be in a summons issued by the Tribunal pursuant to s 40A includes reference to produce a ‘thing’ but s 67 does not. Conversely, s 67 refers to payment if required to ‘give information’, which is not mentioned in s 40A. This may be explained by drafting oversight or may have some other explanation, which was not immediately discernible.
The specific terms of s 67(1) of the Act make it plain that it is the fee or allowance prescribed by the Regulation and related to compliance with the requirement in the summons that is payable.
It appeared to be common ground between the parties that ‘Part 4 – Summons’ of the Regulation applies to the determination to be made, as both parties referred to these provisions.
Dr Sharman did not contend that the Tribunal had a wider or inherent power to make costs determinations in these circumstances. In any event, if he had done so that proposition would have been rejected, as the Tribunal is established by statute and can only exercise powers that have been given to it by the Act or the Regulation made under the Act.
In this case the requirement in the summons was expressed as:
YOU ARE REQUIRED to appear before the Administrative Appeals Tribunal at: 9:30 am 5 January 2018
…
AND to produce the following documents or things:
All files, including clinical notes, computerised records, records of treatment, notes of visits and interviews, patient’s notes, correspondence, medical assessments, investigations, referrals and patient history records relating to Miranda Carver …
The Tribunal was referred to a number of authorities by the Respondent to support its contention that an ‘expense’ in regulation 13(6) is a narrower construct than ‘loss’ or ‘cost’.
The Respondent sought to distinguish the principle that solicitors responding to a summons could recover a sum for ‘loss’ occasioned from a professional person obeying the summons on the basis of the solicitor’s charge out rate.[34]
[34] Deposit & Investment co Ltd v Peat Marwick Mitchell and Co (1996) 39 NSWLR 267.
The distinction is valid if documents are produced without attendance or appearance at the Tribunal. For example, if documents are merely copied and then posted. However, if the facts in any given matter establish that there was an appearance at a hearing because the Tribunal directs the person summoned to appear,[35] the distinction is not necessarily valid. In the latter case, when the person appears as directed and produces the documents, regulation 13(3) may also be applicable.
[35] Section 40A(3)(b) of the Act.
The Tribunal was also referred to Frontier Assets Pty Ltd v Fishburn [2011] NSWSC 334 as authority for the proposition that costs of challenging the validity of a subpoena or motion to set aside were not costs of compliance.[36] I agree with that authority but in the facts of this case, Dr Sharman did not seek to challenge the validity of the summons or apply to set it aside. Rather, he appeared to question the scope of the documents to be produced and objected to the impost of required compliance with the Summons. This conduct was then procedurally dealt with as an objection by the Tribunal.
[36] At [40].
Frontier Assets Pty Ltd v Fishburn is also relevant to the determination of the Tribunal in that it unequivocally restates established principle that the summonsing party is liable for reasonable loss and expense incurred in complying with a summons.[37] Although the Court did not specifically address the authorities referred to at [23] of its reasons, they are of potential relevance to the matter before me. In particular, whether the costs of advice on compliance with a summons are recoverable. Of relevance to the contentions of Dr Sharman is the reasoning in Pan Pharmaceuticals Ltd; Selim v McGrath [2004] NSWSC 129. At [40] the Court stated:
The extent to which a person subjected to subpoena should be given a right to recover costs of obtaining legal assistance in connection with compliance (including advice on matters of confidentiality) was the subject of comment by Young J in Triotas Pty Ltd v Rohn (NSWSC, unreported, 20 May 1993). His Honour expressed a tentative view that legal advice on confidentiality issues was “not in connection with complying with the subpoena, but rather in respect of the private rights which are threatened by the issue of the subpoena”. In Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 77, Levine J did not accept that approach as appropriate to the circumstances before him. He saw the subpoena as having “triggered, in my view, properly, considerations in relation to ‘private rights’ which could be compromised or affected by the issue of the subpoena constituting an order of the court”. Levine J accepted that the applicant before him (the subpoenaed person) was entitled to be recompensed for the obtaining of legal advice “in relation to what clearly were, I accept, complex and delicate questions in respect of privilege and confidentiality”.
[37] At [39].
FINDINGS OF FACT
Having carefully considered the evidence before me, I am satisfied that upon receipt of the Summons, Dr Sharman engaged in obeying the command set out in it. That is, he engaged in ascertaining what he was obliged to do to comply with the requirement in the Summons. As a failure to comply potentially brings serious consequences,[38] I am satisfied that it was reasonable for him to seek legal advice and that he did so because of being served with the Summons.
[38] Section 61 of the Act, creating an offence with is subject to penalty.
To the extent that Dr Sharman addressed his mind and time to what the Summons required him to produce and objected to production of some of the documents, I consider he was entitled to do so and I have not been persuaded that he acted unreasonably. Indeed, it appears that he followed the process open to him in the ‘Notice to a Person Summoned to Produce Documents’, which was sent to him under cover of letter dated 29 November 2017 from the Respondent’s solicitors.[39]
[39] Exhibit A2, document 1.
The Notice that he received relevantly states:
You are not required to attend the hearing unless:
·you want to make an application to the AAT (see below);
·another summons requires you to attend; or
·the AAT directs you to attend the hearing.
…
Objecting to the summons
If you want to object to producing any of the documents specified in the summons, or object to a party accessing any of the documents, you will need to apply to the AAT to make a decision about your objection.
Please contact the AAT as soon as possible and before the day you are required to attend at the AAT if you want to make an application.
Following the objection by Dr Sharman, the Tribunal appointed a return of summons hearing on 26 February 2018. Notices of the hearing were sent out to the parties who all appeared and participated in the hearing. At the conclusion of the hearing and the very same day, Dr Sharman complied with the Summons in accordance with directions he had been given by the Deputy President.
To the extent that Dr Sharman spent time engaging in the tasks referred to at paragraph 60 of these reasons and communicated with various parties, such as his Medical Indemnity Insurer and Dr McArdle, I consider that he did so because of his personal concerns and to garner support for them. While they may have been reasonable steps for him, I am not satisfied that they were for the purpose of complying with the requirement in the Summons.
The evidence of Dr Thomson displays that he held some similar concerns to Dr Sharman about the wide scope of requests received by doctors from insurers and solicitors. Dr Thomson conceded properly that concerns about privacy and confidential communications between the patient and doctor were matters of concern for the patient.
It is honourable that both Dr Thomson and Dr Sharman are sensitive to the impacts on patients by production of medical records but what steps they take in relation to notetaking, open communications and advising or warning a patient about their wellbeing and risks that may arise upon production of records under a summons is a matter for them as medical professionals carrying on their vocation.
There is, in my view, a distinction between what doctors are required to do to discharge their professional duty to patients or to practice according to standards expected by the Medical Board of Australia and that which is required by law when served with a summons.
DETERMINATION
Sections 40A and 67 of the Act each provide for different types of summons and s 67(1), together with Part 4 of the Regulation, provides for what is to be paid to the person summoned for compliance with it.
Regulation 13 draws a distinction by use of headings between fees and allowances for appearances (regulation 13(3) and 13(4)) and allowances for production of things (regulation 13(6)). The distinction in my view aligns with the different types of requirement that can be referenced in a summons issued pursuant to s 40A of the Act. That is, that a summons may relate to appearing only, producing only or both.
In the case of appearances required by a summons, the terms of regulation 13(3) make it clear that what is to be paid is commensurate to the amount of wages, salaries or fees that the person foregoes because of attendance before the Tribunal. This reflects the notion that it is the value of personal time, whether engaged by an employer or self-employed that is to be paid. Further, in the case of appearances required by a summons, regulation 13(4) provides for an allowance to compensate for travel costs incurred in appearing at the Tribunal and in compliance with the summons.
In relation to a summons requiring only production of a thing, regulation 13(6) specifies that it is only an allowance that is payable, which allowance is to be the ‘reasonable expenses’ of the person producing the thing to the Tribunal.
The ‘disconnect’ referred to in paragraph 49 of these reasons is complicated by the terms of the Regulation. Regulation 13(1) refers to fees and allowances for the purpose of s 67(1) in relation to compliance with a summons referred to in s 40A, but the Regulation does not mention ‘giving information’. A further complication is that regulation 13(6) refers to production of a thing but no express reference is made to production of a document.
I consider the ‘disconnects’ referred to in paragraph 49 and 71 are anomalies, likely arising from insufficient attention to legislative drafting when the relevant provisions were amended. This ought to be addressed in my view.
Regardless, what is payable to a person who receives a summons and complies with it, must be determined according to s 67 of the Act and the Regulation to which I have referred.
It is of importance that the summons issued and received in this matter was addressed to ‘The Proper Officer, Hobart Occupational Medicine’, Dr Sharman’s practice. The summons stated that ‘you are required to appear before the Administrative Appeals Tribunal at 9:30AM on 5 January 2018’ and ‘to produce the following documents or things’.
As the proper person who received the summons, before the time for compliance with the summons arrived, Dr Sharman communicated with the Tribunal and the Respondent’s solicitor raising his concerns about what he was required to produce. Consistent with the information in the Tribunal’s ‘Notice to a Person Summoned to Produce Documents’ this was treated as an objection to production of the summons documents. For reasons of timing and convenience, the Tribunal appointed a return of summons hearing before Deputy President Melick on 26 February 2018. It would seem that the date specified in the Summons for appearance, 5 January 2018 was administratively vacated.
Dr Sharman did not apply to set aside the Summons, nor did he refuse to comply with it. Instead, he appeared in the Tribunal as requested and later produced the documents referred to in the Summons.
The parties by their representatives also appeared pursuant to the listing by the Tribunal of the return of summons hearing and made submissions. Ultimately a pragmatic solution was devised to overcome what the Deputy President appeared to accept to be legitimate objections based on privacy and relevance.[40] Dr Sharman provided documents to the Tribunal in accordance with the Deputy President’s request on the same day as the hearing, being hardcopy records and electronic records that had been copied to a disc.
[40] Transcript, 26 February 2018, p 6, lines 1-12.
The process that the Tribunal adopted was materially consistent with the common practice in courts and other jurisdictions. That process required by law is usefully set out in Documentary Evidence in Australia by R. A. Brown at page 104. Referring to Waind v Hill and National Employers’ Mutual General Insurance Association Limited,[41] the author cites from the reasons for decision of Moffitt P at 381 and it is useful to set out that passage here:
As Jordan CJ pointed out in Small's case and, as appears in Burchard's case there are at least two steps in the procedure of having a third party bring documents to court, and in their use thereafter. Indeed, on a correct view, there are three steps. The first is obeying the subpoena, by the witness bringing the documents to the court and handing them to the judge. This step involves the determination of any objections of the witness to the subpoena, or to the production of the documents to the court pursuant to the subpoena. The second step is the decision of the judge concerning the preliminary use of the documents, which includes whether or not permission should be given to a party or parties to inspect the documents. The third step is the admission into evidence of the document in whole or in part …
[41] [1978] 1 NSWLR 372.
In the factual circumstances of this case, the third step described above in Moffitt P’s reasons for decision did not eventuate because Ms Carver withdrew her applications. However, the first and second steps did occur at the hearing on 26 February 2018 and shortly thereafter on the same day.
In the passage cited at paragraph 78, the person required to produce documents is referred to as a ‘witness’. There are a number of authorities in this Tribunal that do not treat a person summoned to produce documents as a witness.[42]
[42] See, for example, Boyle v Commissioner [2005] AATA 584 and Mouat and Telstra Corporation Limited [2011] AATA 267.
The Respondent’s contentions and submissions proceed on the assumption that only regulation 13(6) applies, because the Summons was one to produce documents alone. This position ignores what occurred, namely the listing of a return of summons hearing and the conduct of that hearing at which Dr Sharman appeared.
Although Dr Sharman had the option of merely producing the entirety of the records, he did not elect to do so. If he had elected to produce only, no doubt regulation 13(6) alone would apply to determine his entitlement. In that case he would only be able to recover allowances representing that person’s reasonable expenses of producing a thing. That might be the cost of a courier delivering the documents to the Tribunal registry or alternatively the cost of posting them. In cases where a hardcopy needed to be produced to the Tribunal because only electronic files were available, the photocopying expense or printing cost would also be a reasonable expense in my view.[43]
[43] Consistent with Bestt and Military Rehabilitation and Compensation Commission [2017] AATA 1235.
I consider it necessary to address whether Dr Sharman’s appearance before the Tribunal on 26 January 2018 was in compliance with the Summons and if so, whether he appeared and gave evidence within the meaning of regulations 13(3) and 13(4).
At the return of summons hearing on 26 February 2018, Dr Sharman appeared personally and did so because he was required to do so by the Tribunal.[44] He explained his objections to the terms of the Summons, provided information about how the records were maintained and expressed his concerns about the type of electronic record he should produce, as he identified texts and emails that may also be covered by the terms of the Summons. He stated he had endeavoured to bring as much of the documentation he had concerning Ms Carver in a practical sense, but because of the nature in which the records were stored (hardcopy and electronic) and the volume of the file, not all of the records were in fact with him at the hearing but a proportion were.[45]
[44] As provided in s 40A(3)(b) of the Act.
[45] Transcript, 26 February 2018, p 7, lines 23-26.
I am mindful of a line of authority to the effect that a person complying with a summons to produce documents is not a ‘witness’: see, for example, Mouat and Telstra Corporation Limited (Mouat)[46] and Boyle and Commissioner of Taxation (Boyle).[47]
[46] [2011] AATA 267.
[47] [2005] AATA 584.
The cases cited in the preceding paragraph were decided under different provisions and regulations to those now being considered.[48] No doubt the Tribunal was constrained by the wording of the statutory provisions at the time and the facts applicable in the cases before it. In any event, in Boyle there is reference to there being instances where a person summoned to produce documents alone may be a witness.[49]
[48] Specifically, regulation 16, Administrative Appeals Tribunal Regulation 1976 (Cth).
[49] See [21], referring to Re A Taxpayer and Commissioner of Taxation AAT 12219A.
Regulation 16, which applied before the current Regulation came into force in 2015, provided:
Witness expenses
A person summoned to appear as a witness before the Tribunal shall be paid such fees, and allowances for expenses, in respect of his attendance, in accordance with Schedule 2, as determined by the Tribunal or by a presidential member.
Schedule 2 in the Administrative Appeals Tribunal Regulation 1976 did not provide recompense for the factual circumstances considered in Mouat (where the documents referred to in the summons were merely sent to the summonsing party) and in Boyle (where the summons was set aside).
The difficulties identified at paragraph 20 of the Tribunal’s decision in Mouat, and also relevant in Boyle, have been addressed by the current Regulation as regulation 13(6) does provide for the reasonable expense of producing a thing.
As Dr Sharman was required to appear in the Tribunal,[50] and participated in the return of summons hearing, regulations 13(3) and 13(4) are engaged in my view. Although he did not give evidence on oath, it is quite apparent that he provided information orally about the nature of the records and his objections, but also complied with the Summons.
[50] Pursuant to s 40A(3) of the Act.
The Tribunal is able to inform itself otherwise than by taking evidence on oath. It can ‘inform itself in such manner as it thinks appropriate’ and is ‘not bound by rules of evidence’.[51] Oral information is fairly frequently received without the person appearing in the Tribunal being required to make an oath or affirmation. I am satisfied that when Dr Sharman appeared on 26 January 2018, he gave evidence as is contemplated by procedures under the Act.
[51] Section 33(1)(c) of the Act.
Based on the foregoing reasons the determination of the Tribunal is that Dr Sharman is entitled to recover the following:
(a)Fees and allowances for appearing at the return of summons hearing on 26 February 2018 pursuant to regulations 13(3) and 13(4). On the evidence before the Tribunal and, in particular the time recorded in the invoice (Exhibit A1), I can infer that Dr Sharman did forego fees for the duration of the time that he appeared before the Tribunal. In addition, it is likely that Dr Sharman incurred travel costs that day, but I am unable to make any specific finding as to this; and
(b)An allowance for the reasonable expenses he incurred in producing the documents he did on 26 February 2018.
By reference to the tax invoice (Exhibit A1) it appears Dr Sharman was at the hearing in the Tribunal for 45 minutes and his fee for that time was $380.00 based on his hourly rate of attendance.
In respect of the allowance due pursuant to regulation 13(6), there appear not to have been any photocopying or printing because Dr Sharman produced the original hard copy file and a disc with the electronic records copied to it. There is no evidence about the cost of the electronic disc and so no determination can be made about allowance for this expense.
The legal costs incurred of $1,256.64 for advice about compliance with the Summons in my view is recoverable as a reasonable expense pursuant to regulation 13(6) on this occasion.[52] However, I observe that as he now has legal advice about what is required by a summons to produce documents, if he incurs legal costs each time he receives such a summons, those costs are not likely to be reasonable.
[52] See Pan Pharmaceuticals Ltd; Selim v McGrath [2004] NSWSC 129.
All other items claimed in the tax invoice produced by Dr Sharman (Exhibit A1) do not, in the opinion of the Tribunal, fall within the meaning of fees and allowance for appearance or allowance for production of things within the Regulation and so are not recoverable.
To the extent that Dr Sharman has claimed fees or allowances in relation to communications between himself and Dr McArdle or the Tribunal, and for reviewing his files for the purposes of collating materials for the hearing on 26 February 2018, the Tribunal is not satisfied that he is entitled to recover any sum, as they do not fall within the terms of the Regulation.
In the circumstances of this case, as the summons in question was issued at the request of the Respondent, it is the Respondent who should pay the sum determined by the Tribunal to Dr Sharman, not the Commonwealth.[53]
[53] In accordance with regulation 14(1) of the Regulation.
There was an alternate submission by Dr Sharman about the application of regulation 14(1)(b) and that if the Respondent should not pay that which he claimed, the Commonwealth should. There is no merit in the submission as the Commonwealth is only required to pay in what I regard as very limited circumstances, such as those discussed in Sullivan and Department of Transport,[54] which do not apply here.
[54] [1979] AATA 170.
RELEVANT COMMENT
I consider it useful to make the following observations with a view to provide general guidance to persons in receipt of a summons to produce documents only.
A person summoned to produce documents only should, wherever possible, adopt the course of producing the documents described in the summons, using their reasonable endeavours.
Concerns about confidentiality or privacy of patient medical records are predominantly issues for the patient and not the doctor. No party referred the Tribunal to any authority for the proposition that a doctor owed a duty of care in relation to documents provided to a court or tribunal under compulsion of a summons or subpoena. Professional requirements imposed on doctors concerning recordkeeping can be satisfied by advising patients at the commencement of a treatment relationship that information collected by the doctor is compellable to production to courts and tribunals.
If a medical practitioner has particular concerns about the delicacy or sensitivity of information within a medical record, this alone would not justify non-compliance with a summons to produce documents. The preferable course in this situation is to separate those documents but still produce them with the balance of the documents, providing an explanatory statement about the concerns. The Tribunal will then consider that and act accordingly for the purposes of making an inspection order.
Whether medical records or documents are relevant to an issue in dispute or an issue to be decided, either directly or peripherally, by the Tribunal are not the concern to the doctor or person who maintains the record. The Tribunal is vested with the function of being the decision-maker on the review and has knowledge and expertise of the law and the issues before it. It alone has the function and power to determine relevance at the hearing stage of proceedings.
There are very few reasons recognised by law that excuse compliance with a summons to produce documents. If objection is to be taken to production of documents referred to in a summons, the grounds of objection should be clearly articulated and relate to the circumstances of the person maintaining/holding the records.
If a person summoned to produce documents does object and a return of summons hearing is necessary, a determination should be made formally in respect of objections taken. In appropriate circumstances reasons for the determination should be given.
In the event that a person summoned takes repeated objections to production of medical records on grounds that have little or no merit, they are unnecessarily delaying the review process of the Tribunal and putting parties to expense. This is clearly undesirable in view of the Tribunal’s objectives upon review set out in s 2A of the Act. The preferable course is for the person summoned to produce what they are required to produce to the best of their ability. If there is any doubt in their mind as to what falls within the description of documents referred to in the summons, a simple statement accompanying records that are produced can be made directing the Tribunal to the fact that some documents that might fall within the description referred to in the summons have not been produced.
A party requesting that the Tribunal issue a summons to produce documents has a responsibility to carefully express the description of the documents to be produced. Where the terms can include reference to periods of time, nature of injuries or conditions or otherwise diminish the burden of compliance on the recipient of the summons, that is to be encouraged.
I certify that the preceding 108 (one hundred and eight) paragraphs are a true copy of the reasons for the decision herein of Ms S Taglieri SC, Member
...............................[sgd]..................................
Associate
Dated: 28 June 2019
Date(s) of hearing: 18 January 2019 & 27 March 2019 Applicant: In person Counsel for the Respondent: Mr P Lehmann Solicitors for the Respondent: Lehmann Snell Lawyers
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