Chick and Comcare (Compensation) - [2020] AATA 2579

Chick and Comcare (Compensation) [2020] AATA 2579 (31 July 2020)
Division:General Division
File Number: 2019/5725
Re:Dana Chick
APPLICANT

AndComcare
RESPONDENT

AndHobart Occupational Medicine
OTHER PARTY

DECISION
Tribunal:A G Melick AO SC, Deputy President
Date:31 July 2020
Place:Hobart

The Tribunal determines that Dr Sharman, as the Proper Officer of Hobart Occupational Medicine, is:
a.Not entitled to recover costs of setting aside the summons; and
b.Entitled to costs of complying with the summons pursuant to s67(1) of the Administrative Appeals Tribunal Act 1975 and s13(7) of the Administrative Appeals Tribunal Regulations 2015.

............................[sgd]............................................
A G Melick AO SC, Deputy President
PRACTICE AND PROCEDURE – summons – summons to third party to produce documents – third party objects to supplying documents – whether costs are payable in relation to the summons objection and compliance with the summons – costs not payable for the setting aside of summons – costs payable for compliance with summons
Legislation
Administrative Appeals Tribunal Act 1975
Administrative Appeals Tribunal Regulations 2015
Cases
Carver and Comcare [2019] AATA 1534
Commissioner for Railways v Small (1938) 38 SR (NSW) 564
Frontier Assets Pty Ltd v Fishburn [2011] NSWSC 334
Hastings v March [2019] FCCA 2548
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
Pan Pharmaceuticals Ltd; Selim v McGrath [2004] NSWSC 129
REASONS FOR DECISION
A G Melick AO SC, Deputy President
31 July 2020
PREAMBLE

This is yet another matter in which Dr Sharman of Hobart Occupational Medicine complains about the use of summons by Comcare to gain access to records to which they are not entitled. See Carver and Comcare [2019] AATA 1534.
On previous occasions I have set aside those aspects of summons which I considered to be far too wide in accordance with the principles enunciated by Jordon CJ in Commissioner for Railways v Small (1938) 38 SR (NSW) 564.
One such example involved a catchall summons for all medical records relating to an Applicant who had suffered a frank injury with no suggestion of a psychiatric or psychological overlay. An examination of copious records running to over 600 pages resulted in the disclosure of approximately 50 pages relating to the frank injury.
I reiterate yet again that the principles set out below as summarized by Neville J at [16] of Hastings v March [2019] FCCA 2548 do not allow the use of such broad and, at times, oppressive summons/subpoenas:
In Hatton v Attorney-General (Cth) (“Hatton”), the Full Court set out general principles regarding the setting aside of a subpoena.[2] The Full Court followed what might be described as “standard and unchallenged” authority. For example, at [35] and [38], the Court said:
[35] …the existence of a power in this Court to set aside subpoenae seems to have long been assumed or accepted by this Court (see in this regard: Sharpe and Dalton (1990) FLC 92-167; Epstein [1993] FamCA 45; (1993) FLC 92-384; White and Tulloch v White (1995) FLC 92-640; Re Z (1996) FLC 92-694 at 83,240; and Relationships Australia v Pasternak (1996) FLC 92-699). However, the principles which should govern the exercise of the power have not, it would seem, to date been the subject of any extensive examination.
…
[38] In Waind and Hill, Moffitt P. (with whom Hutley and Glass JJA agreed) explained that there are three steps in the procedure of having a third party bring documents to court and in their use thereafter (at 381):
“As Jordan C.J. pointed out in Small’s case ((1938) [1938] NSW St Rp 29; 38 S.R. (N.S.W.) 564, at p. 574; 55 W.N. 215)and, as appears in Burchard’s case ([1891] 2 QB, 241, at pp. 247, 248) 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; or the use of it in the process of evidence being put before the court by cross-examination or otherwise. In these three steps the stranger and the parties have different rights and the function of the judge differs.”
BACKGROUND
A summons to Dr Sharman was issued on 3 December 2019 and served by letter dated 5 December 2019.
The summons required Dr Sharman to produce all records relating to the Applicant including the following:
Clinical notes, records, history, letters of referral, including all copies of reports to or from other medical practitioners, insurance companies and all other documents relating to examination and/or treatment, test results and reports in relation to any medical treatment for Dana Maree Chick.
Dr Sharman objected to producing any documents held by him and sought a direction that a summons issued to an Independent Medical Examiner (IME) is an abuse of process and should be set aside.
Dr Sharman also indicated that he intended to provide necessary medical information for the Tribunal’s consideration.
GROUNDS OF OBJECTION
On 24 January 2020 Dr Sharman provided a submission (‘Main Submission’) in which he indicated that the ground of his objection was that the summons was an abuse of process.
On 28 January 2020 Dr Sharman provided an additional submission (‘Requests of AAT’) in which he asked the Tribunal to determine that the summons ‘is unnecessary and an abuse of the summons process.’
The matter was heard on 30 January 2020 after which I made the orders set out at paragraph [26] below and indicated that I would give these expanded reasons at a later date.
SUBMISSIONS
Dr Sharman’s Submissions (with some editing) included:
I have never provided medical treatment for Ms Chick.
I prepared a report date 27 August 2018 as an Independent Medical Examiner (IME) at the request of her solicitors. The report has been delivered to Comcare.
My objection is that Comcare’s Summoning of my file is an “Abuse of Process” as I am an IME, not a treater in this matter. In my 25 years of working in this field and providing thousands of IME reports, I cannot recall ever having had my file summoned or subpoenaed.
Comcare have given no reason for requiring access to my file and there seems to be a pattern of Comcare repeatedly summoning my files without any real reason. I feel harassed and find the intrusion into my medical files distressing - as I have explained in the past it is like having a search warrant issued when you have done nothing wrong. I do not wish to provide assessments with a hostile insurer “looking over my shoulder”.
I had been scheduled to review Ms Chick at the request of her solicitors, but I have deferred that reassessment pending the outcome of my objection. If my “work-in-progress” file can be legally summoned by the hostile insurer it might change how I handle the assessment and what I record on the file. It might also have implications whether I stay involved in her case (or other Comcare cases, for that matter).
As the only remaining occupational physician in Southern Tasmania I have a very heavy workload of both paid and unpaid work and am trying to set up for a new doctor to train in my practice as well as set up a Foundation to provide funding for training and promote occupational medicine.
Dr Sharman also attached articles dealing with the undesirable impact on a doctor’s ability to properly treat patients if information provided to them could not remain confidential.
Although the summons is very wide, it is relevant that Dr Sharman appears to have had very little contact, if any, with the Applicant and has not been her treating doctor.
It is also relevant that, at this stage, Dr Sharman is seeking to have the summons set aside rather than objecting to producing some of the material demanded.
The Respondent's submissions included the following:
[10] A summons may be set aside, in whole or in part, at any time before production of the documents on the grounds of abuse of process.
[11] Dr Sharman is not arguing that the summons lacks a legitimate forensic purpose. He appears to concede that the summons is ‘intended to provide necessary medical information for the AAT’s consideration’. As his file relates to the applicant’s medical conditions, including the accepted injury, the documents are clearly relevant to the issues in dispute in the proceedings.
[12] Dr Sharman has provided a medical report and is being called to give evidence in this matter. The respondent is entitled to know the basis of his opinion. Dr Sharman concedes that it is appropriate for a summons to be issued to a doctor who has provided a medical report ‘to clarify the details provided by way of a solicitor’s letter of instruction’ (Main Submission at [8] of Facts). It is submitted that includes the documents on which that opinion is based, and the history obtained during any assessment of the applicant.
[13] The respondent has a duty to assist the Tribunal to come to the correct or preferable decision. In doing that the respondent is entitled to test the evidence of any witness called and, in the case of experts, the basis on which s/he came to the stated opinion.
[14] The letter requesting a report from Dr Sharman is not currently before the Tribunal and any other documents apart from those listed in his report which he may have received at the time the report was requested or at the time of his assessment/s of the applicant is not known. It is also not known how many times Dr Sharman has assessed the applicant or whether the history outlined in his report covers all matters raised during the course of his assessment/s.
…
[17] The summons has a legitimate forensic purpose as it goes to the basis on which Dr Sharman has formed his opinion.
‘Facts’ and Assertions raised by Dr Sharman
[18] Dr Sharman has made a series of statements he has labelled Facts and Assertions. None of the points raised in Dr Sharman’s ‘Facts’ or Assertions raise any legitimate ground to have the summons set aside.
…
Response to ‘Requests of AAT’
[22] Dr Sharman has asked the Tribunal to ‘recognise that Dr Sharman has attempted to keep to a minimum, delays, the amount of his professional time to submit an objection’. The respondent refers to the Tribunal’s decision in the matter of Carver and Comcare [2019] AATA 1534, which also related to an objection to summons made by Dr Sharman, and in particular to [107] where Senior Member Taglieri stated:
“In the event that a person summonsed 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.”
[23] The current objection to producing his file pursuant to a summons was lodged after the comments of Senior Member Taglieri in Carver and Comcare. It has necessarily had the effect of increasing the costs to the parties and delaying the review process.
[24] In relation to costs the respondent submits that the costs of challenging the validity of a subpoena or motion to set aside were not costs of compliance. In this matter Dr Sharman has sought to have the summons set aside and the costs of doing so do not form part of the costs of compliance.
[25] Regulation 13(6) of Administrative Appeals Tribunal Regulations 2015 specifies that an allowance is payable for production of a thing and the allowance is to be the reasonable expenses of the person producing the thing to the Tribunal. This does not include anything done in an attempt to have the summons set aside.
[26] Therefore the costs claimed by Dr Sharman do not form part of complying with the summons and are not properly payable.
[27] In the event that Dr Sharman produces his file he will be entitled to reasonable expenses for producing the file. This includes such expenses as photocopying or printing costs, if the file is in an electronic form, and postage or courier charges.
RELEVANT LAW
Legal principles relating to legitimate forensic purpose are set out a paragraph [4] above.
Section 40A of the Administrative Appeals Tribunal Act 1975 (the Act) provides:
40A Power to summon person to give evidence or produce documents
1.    For the purposes of a proceeding before the Tribunal, the President, an authorised member or an officer of the Tribunal may summon a person to do either or both of the following, on the day, and at the time and place, specified in the summons:
(a)appear before the Tribunal to give evidence;
(b)produce any document or other thing specified in the summons.
Note:          This section does not apply in relation to proceedings in the Social Services and Child Support Division, as a result of provisions in the enactments that authorise applications for reviews that will be heard in that Division.
2.    The President or an authorised member may refuse a request to summon a person.
Section 67(1) of the Act provides:
67(1) 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.
2.    Without limiting the matters that may be dealt with by regulations made for the purposes of subsection (1), the regulations may:
(a)prescribe circumstances in which a fee or allowance is not payable; or
(b)provide that a fee or allowance is to be paid:
(i)     if the requirement was made of the person at the request of a party to the proceeding—by the party; or
(ii)    by the Commonwealth.
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) (the Regulations).
Regulation 13 of the Regulations states:
Fees and allowances in relation to compliance with summons
1For subsection 67(1) of the Act, this section prescribes fees and allowances payable to a person in relation to compliance with the following summonses:
(a)a summons referred to in section 40A of the Act;
(b)a summons referred to in paragraph 363(3)(a) of the Migration Act 1958 ;
(c)a summons referred to in paragraph 427(3)(a) of the Migration Act 1958 .
2Fees or allowances are not payable to a person who is a party to the proceeding, unless the Tribunal orders otherwise.
Fees and allowances for appearance
3The fee payable to a person who is summoned to appear before the Tribunal to give evidence is:
(a)if the person is remunerated in his or her occupation by wages, salary or fees--the amount of wages, salary or fees that are not paid to the person because the person attends the Tribunal; or
(b)in any other case--a reasonable amount for each day on which the person attends the Tribunal.
4The allowances payable to a person who is summoned to appear before the Tribunal to give evidence are:
(a)a reasonable amount for travel between the person's usual place of employment or residence and the place where the person attends the Tribunal; and
(b)if the person is required to be absent overnight from the person's usual place of residence--a reasonable amount for meals and accommodation.
5However, a person is not entitled to an allowance for travel, meals or accommodation if the person is given the equivalent in kind (such as access to pre-paid travel, meals or accommodation).
Allowances for production of things
6For a summons referred to in section 40A of the Act, the allowances payable for a person who is summoned to produce something are the person's reasonable expenses of producing the thing.
Tribunal may determine fees and allowances if amount not agreed
7If a person was summoned at the request of a party to the proceeding, the person may apply to the Tribunal for a determination of the amount of fees or allowances payable under subsection (3), (4) or (6) in relation to compliance with the summons, if the person and the payer cannot agree on the amount.
8A person is not excused from complying with a summons only because the person thinks that an amount paid to the person under this section is not sufficient.
As noted by Member Tagleri SC at [48] of Carver and Comcare [2019] AATA 1534:
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.
Relevant to the determination of the Tribunal is Frontier Assets Pty Ltd v Fishburn [2011] NSWSC 334, in that it unequivocally restates established principles that the summonsing party is liable for reasonable loss and expense incurred in complying with a summons.
Also of relevance are the comments 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”.
LEGITIMATE FORENSIC PURPOSE
Dr Sharman had already provided an expert report which has been served upon the Respondent. The Respondent is entitled to know the basis for his opinions including all materials and information that may be relevant. See Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 and subsequent cases.
Accordingly, I found that there was a legitimate forensic purpose for the issuing of the summons referred to at para [6] above and I made the following orders:
1By close of business (5:00PM) Thursday 6 January 2020, Dr Peter Sharman is to provide to the Tribunal
(a)The letter of instructions from Slater and Gordon including any material attached thereto; and
(b)Any other material relied upon for the preparation of his report on the Applicant.
COSTS

As noted by Member Taglieri SC at paragraph [52] in Carver and Comcare [2019] AATA 1534, this Tribunal is established by statute and can only exercise powers that have been given by the Act or Regulations. No power is given to award costs pursuant to an application to set aside a summons.
Furthermore, although applying the NSW Uniform Civil Procedure Rules, I agree with the principles set out by Harrison J at [40] in Frontier Assets Pty Ltd v Fishburn[2011] NSWSC 334:
I do not consider that the loss and expense for which UCPR33.11 provides extends to include the costs associated with a challenge to the validity of the subpoena, or in this case the costs of the motion to set it aside. Costs of compliance can hardly include or incorporate the costs of litigation seeking to impugn or to challenge the very obligation to comply. Those costs must fall to be determined as part of the costs of the motion filed by Mr Wavish on 12 November 2010. However, I do not consider that the filing of the motion automatically had the effect that all or any costs incurred thereafter became costs in the motion as opposed to loss suffered and expense incurred in complying with the subpoena. Frontier and Mr Wavish were effectively corresponding on two fronts after 12 November 2010, sometimes attempting to resolve the issue of compliance with the subpoena and sometimes dealing with the motion to set it aside. Those efforts will have to be examined, with the costs and loss and expense apportioned accordingly.
Accordingly, I rule that Dr Sharman is not entitled to any costs of setting aside the summons.
However, having complied with the summons Dr Sharman is entitled to recover his costs pursuant to s 67(1) of the Act and s 13(7) of the Regulations in accordance with the law and principles set out at paragraphs [18]-[24] above.

I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of A G Melick AO SC, Deputy President

........................[sgd]..............................
Associate
Dated: 31 July 2020

Date of hearing:

Solicitor for the Applicant:

30 January 2020

Ms G Guinta

Solicitor for the Respondent: Ms N Richards