De Bono v Baytech Traders Pty Ltd

[2020] VMC 2

IN THE MAGISTRATES’ COURT OF VICTORIA
AT MELBOURNE
WORKCOVER DIVISION OF COURT

Case No. K10607271  

BRYAN DE BONO	Plaintiff
v
BAYTECH TRADES PTY LTD	Defendant

MAGISTRATE:	M HOARE
WHERE HELD:	MELBOURNE MAGISTRATES COURT
DATE OF HEARING:	11 MARCH 2020
DATE OF DECISION:	19 MARCH 2020
CASE MAY BE CITED AS:	DE BONO V BAYTECH TRADERS PTY LTD
MEDIUM NEUTRAL CITATION:	[2020] VMC002

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CATCHWORDS – Workers Compensation – Termination of Claim for Weekly Payments and Medical and Like Expenses - Third Party Access to Centrelink Records – S. 207 of the Social Security (Administration) Act 1999 - S. 136 of the Magistrates Court Act 1989 - Civil Procedure Act 2010 – Workplace Injury Rehabilitation and Compensation Act 2013.

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APPEARANCES:	COUNSEL	SOLICITORS
For the Plaintiff	Mr P. Haddad	McCristal Injury Lawyers
For the Defendant	Mr B.R. McKenzie	Minter Ellison

Ruling

HER HONOUR

Introduction

1. The issue that arises for decision is whether the defendant  is entitled to access to the plaintiff’s Centrelink records in the context of workers compensation statutory benefits proceedings. The defendant seeks access by either:  the plaintiff being ordered to provide the defendant with a signed authority permitting access to the plaintiff’s Centrelink records; and/or by way of an order for discovery by the plaintiff for records relating to the plaintiff’s engagement with disability job/employment agencies, his applications for disability support pension; and receipt of Centrelink payments.

Evidence

2. In support of the application, the defendant relies upon affidavit of Ramanan Rajendran sworn 14 November 2019. The affidavit annexed an excerpt of transcript in related proceedings, the relevant Centrelink authority form to release personal information as well as correspondence between the solicitors for the respective parties and a proposed notice for discovery

Relevance and context of the records sought

3. As noted, the defendant’s request for access to the plaintiff’s Centrelink records is made in the context of a claim by the plaintiff for weekly payments of compensation (as well as medical and like expenses) under the Workplace Injury Rehabilitation and Compensation Act 2013. The plaintiff’s claim arises out of a back injury and consequential psychological injury sustained on 12 May 2011 in the course of his employment with the defendant. Weekly payments were terminated on the grounds that he had not made reasonable efforts to return to work in suitable employment at his place of employment.
4. As yet, at the request of the parties, the proceeding in this court has not been fixed for final hearing due in at least in part to the pending County Court judgement in respect of the plaintiff’s application for leave to bring a claim for common law loss of earning capacity damages following an appeal to the Supreme Court. The plaintiff has already been granted leave by the County Court to bring a claim for common law pain and suffering damages.
5. The defendant contends that the records sought are both relevant to the determination of this proceeding and of probative value. The defendant says the timespan for access to the records is in line with period of incapacity claimed by the plaintiff.
6. The affidavit exhibited an extract of the transcript of the plaintiff’s evidence given in his serious injury proceeding in the County Court on 31 October 2019 which was to the effect that the plaintiff has been involved with various disability agencies in relation to rehabilitation and that he receives payments by way of a New Start Allowance and Family Tax Benefit A.
7. The plaintiff via his solicitors has refused to comply with the defendant’s request to provide a signed authority nor has he consented to formal discovery in relation to Centrelink records and information.

Legislation

8. Section 207 of the Social Security (Administration) Act 1999 contains a general prohibition from production and disclosure, including to courts and tribunals, documents and information related to individuals to third parties other than or save for the proper administration of the Social Security law itself.
9. Section 208 of the Social Security Act contemplates authorisation of a person in the position of the plaintiff of the production of the information that is sought.
10. Given the plaintiff’s objection to such authorisation, this left open the question whether the plaintiff, as  the person entitled to the benefit of the prohibition, could be directed by order of this court to execute a document in the form of a request to Centrelink seeking the release of documents.
11. Section 136 of the Magistrates Court Act 1989 provides that the court may, except where otherwise provided by this or any other Act, give any direction for the conduct of the proceeding which it thinks is conducive to its effective, complete, prompt and economical determination.
12. Judicial powers of case management are also governed by section 47 of the Civil Procedure Act 2010 which provides that a court may give any direction or make any order it considers appropriate having regard to the interests of the administration of justice or in the public interest. The court’s power to further the overarching purpose as set out in section 7 of the Civil Procedure Act of facilitating just, efficient, timely and cost-effective resolution of the real issues in dispute is set out in section 9 of that Act. Objects to which the court shall have regard include: the just determination of the proceeding; the public interest in the early settlement of disputes and efficient use of judicial and administrative resources.

Authorities

13. Neither Counsel could refer me to authorities in which the prohibition in Section 207 has been considered in the context of claims for Victorian statutory compensation.
14. Relevant authorities relied upon by the defendant are:

·El-Helou v Smith [2009] NSWSC 741, a decision of the NSW Supreme Court.

·Habib v Radio 2UE Sydney [2011] NSWDC 41, a decision of the NSW District Court.

·Winfield v Jones [20110] SADC 24, a decision of the South Australian District Court.

15. Other cases that have considered the question of third-party access to an individual’s information are set out in El-Helou at paragraph 11.
16. The plaintiff referred me to the case of:

· Psalidis v JAM Group Super & Anor [2009] VSC 417, a decision of the Supreme Court of Victoria.

Analysis

17. Counsel for both parties provided helpful oral submissions in this matter.
18. As stated in Winfield-v-Jones at [46], the intention of the Australian Parliament in section 207 is abundantly clear. The section constitutes a blanket prohibition against the disclosure of confidential information provided by applicants for Social Security, save for the proper administration of the Social Security law itself.
19. Notwithstanding the prohibition, it is clear from the authorities cited by the defendant that courts can and do make orders requiring individuals to authorise disclosure of their Centrelink records to third parties.  In my view, given the differing jurisdictions and contexts in which third parties sought access to an individual’s records, these cases are of persuasive but not binding authority. El-Helou and Winfield involved claims for damages arising from motor vehicle collisions. Habib involved a defamation proceeding where imputation against the plaintiff specifically related to his eligibility for a Centrelink pension. In Psalidis, His Honour Justice Cavanough was concerned with limitations under the Health Records Act.
20. Whilst such orders can be made, it is undoubtedly so that they ought only be made if the documents so specified are, again as stated in Winfield at [51], directly relevant and there could be no prejudice to the plaintiff.
21. Whilst I accept the defendant’s contention that some parts of the plaintiff’s Centrelink records may be broadly relevant to the question of his capacity for employment, it is my view that compelling the plaintiff to authorise full disclosure to the defendant of the kind of confidential, personal information that his Centrelink records may potentially contain goes well beyond the scope of the issues in dispute in this case. I consider that any probative value of some of the potentially relevant information or documents is outweighed by prejudice to the plaintiff and by the level of intrusion that at such an order would permit. In weighing up the public interest considerations of administration of justice and efficiency of case management and the public interest consideration of protecting the confidential information of individuals, the latter is outweighed in this case in my view.
22. In the case of Psalidis, whilst His Honour Justice Cavanaugh was considering the Health Records Act, I am of the view that Act is analogous in nature to the Social Security Act, at least in so far as the respective Acts pertain to managing personal information of individuals. In that case, His Honour stated at [133] “any considerations of efficiency are outweighed by considerations arising from the apparent policy of the Act’. And, further on in [133], the legislation’s ‘tenor’ is quite opposed to private records of individuals being accessible by third parties, whether or not in the context of litigation – a comment that in my view applies equally to section 207 of the Social Security Act.
23. In this case, there can be no doubt the  plaintiff’s capacity for his pre-injury employment and for suitable employment are squarely in issue in the determination of this proceeding. At the ultimate hearing, findings as to the plaintiff’s capacity for work throughout the claimed period will rest predominantly on an assessment of the plaintiff’s oral evidence which will be tested by way of cross-examination, on the evidence of his treating medical practitioners and, as is the usual course in proceedings of this kind, medico-legal practitioners with specific expertise and experience in in vocational assessments and occupational medicine.
24. In the circumstances of this case, for the reasons I have outlined, I am not prepared to make an order requiring the plaintiff to execute a document authorising Centrelink to release of confidential documents to the defendant.
25. If I were inclined to make the order, I am not persuaded that it would be appropriate or permissible for me to do so relying on the power to give directions under section 136 of the Magistrates Court Act given that the power to give any direction is stated to be subject to where otherwise provided in this or any other Act. In relation to the court’s powers under the Civil Procedure Act, in my opinion it is a matter of weighing competing considerations on a case by case basis.
26. In the circumstances of this case, in my view, the objects of effective, complete, prompt and economical determination are outweighed both by the legislative intention of the express prohibition contained in section 207 and the potential prejudice to the plaintiff. Likewise, in my view, the objects and purposes of the Civil Procedure Act including interests in the administration of justice or in the public interest are outweighed by the public interest in adhering to the express prohibition contained in section 207.
27. At this stage of the proceeding, and where agreement has not been reached between the parties as to fixing for hearing of the matter now or subsequent to the outcome of the pending serious injury common law application,  I am also not prepared to make orders for discovery in the broad terms outlined in the three bullet-point paragraphs of the defendant’s proposed notice for discovery dated 14 November 2019.
28. As I indicated to the parties previously, income tax returns and PAYG certificates as well as certificates of capacity and medical evidence will have probative weight on the issues in dispute relating to the certainly somewhat lengthy timespan of the plaintiff’s claimed period of incapacity. It may also be that there is scope, once the parties are ready for the matter to be fixed for hearing, for the plaintiff to seek access to his own Centrelink records and for the parties to reach agreement in relation to informal discovery as to specific types of documents related to capacity for employment that may form part of the full Centrelink record.

Conclusion

29. I refuse to grant the defendant’s interlocutory applications for the reasons outlined.
30. I will hear from the parties in relation to any orders sought and in relation to the future conduct of the substantive proceeding.