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…

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 Chick and Comcare (Compensation)

Details

AGLC: Chick and Comcare (Compensation) [2020] AATA 2579
Case: [2020] AATA 2579
Decision Date: 31 July 2020

CaseChat Overview and Summary

This matter concerned an objection by Dr Sharman to a summons issued to him requiring the production of all records relating to the applicant, Dana Maree Chick. Dr Sharman sought to have the summons set aside on the grounds that it constituted an abuse of process. The Deputy President of the Administrative Appeals Tribunal was required to consider the principles governing the issuance and setting aside of such summonses.

The primary legal issue was whether the summons issued to Dr Sharman was overly broad and oppressive, thereby constituting an abuse of process. This required the Tribunal to consider the established principles regarding the use of subpoenas and summonses in court proceedings, particularly in the context of third-party production of documents. The Tribunal also had to consider the relevant provisions of the *Administrative Appeals Tribunal Act 1975* and the *Administrative Appeals Tribunal Regulation 2015* concerning the power to summon and the payment of fees and allowances for compliance.

The Deputy President reiterated the principles established in *Hatton v Attorney-General (Cth)* and *Waind and Hill*, which outline a three-step process for the use of documents produced under a subpoena: compliance with the subpoena, the judge's decision on preliminary use, and admission into evidence. The Tribunal noted that summonses should not be used in a broad or oppressive manner. While the *Administrative Appeals Tribunal Act* grants the power to summon persons to give evidence or produce documents, the associated regulations specify fees and allowances for compliance, with exceptions for parties to the proceeding unless the Tribunal orders otherwise. The Tribunal's power to refuse a request for a summons was also noted.

The Deputy President ultimately dismissed Dr Sharman's objection. The Tribunal found that the summons was not an abuse of process, and Dr Sharman was required to comply with it. The Tribunal also made directions regarding the payment of fees and allowances for Dr Sharman's compliance with the summons.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

Section 40A of the Administrative Appeals Tribunal Act 1975 (the Act) provides:40A Power to summon person to give evidence or produce documents1. 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 summons1. 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 summons1For 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 appearance3The 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 things6For 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 agreed7If 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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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