Dimovski v WorkCover Authority of NSW
[2006] NSWADT 315
•09/11/2006
CITATION: Dimovski v WorkCover Authority of NSW [2006] NSWADT 315 DIVISION: General Division PARTIES: APPLICANT
Steve Dimovski
RESPONDENT
WorkCover Authority of NSWFILE NUMBER: 063178 HEARING DATES: 20/09/06 SUBMISSIONS CLOSED: 10/03/2006
DATE OF DECISION:
11/09/2006BEFORE: Montgomery S - Judicial Member CATCHWORDS: access to documents - adequacy of search - Freedom of Information Act - access to documents - adequacy of search MATTER FOR DECISION: Principal matter LEGISLATION CITED: Freedom of Information Act 1989
Workers Compensation Act 1987CASES CITED: B v Commissioner of Police, New South Wales Police Service [2000] NSWADT 168
Cianfrano v Director-General, Department of Commerce [2006] NSWADT 195
Hemeon v Commissioner of Police, New South Wales Police Service [2002] NSWADT 201REPRESENTATION: APPLICANT
RESPONDENT
In person
J McDonnell, solicitorORDERS: The decision under review is affirmed.
REASONS FOR DECISION
1 Mr Dimovski worked for the State Rail Authority and Rail Services Australia between 1990 and 1999. He commenced compensation claims against his employers in relation to work related injuries and subsequently settled those claims. He is pursuing payments that he says he has not received and is seeking to obtain documents that he hopes will assist him in that pursuit.
2 Mr Dimovski has sought a review of two decisions of the WorkCover Authority of NSW (“WorkCover”) in relation to applications by him for access to documents under the Freedom of Information Act 1989 ("the Act").
3 The first application requested:
4 The second application requested:
"Copy of all work injury's, and hearing loss claims, all settlements, court award's under my name (DOB = 14-06-53)".
5 In relation to the first application Mr Dimovski was advised by a determination dated 21 July 2005 that a search had identified that he had five claim records but that WorkCover does not receive or hold records of workers compensation claims but that licensed insurers hold them. It was suggested that Mr Dimovski contact the relevant insurers and his legal representatives in relation to claims, settlements and court awards and monies owed.
"'Copy of my file' to the date under my name = DOB - 14-06-53 = any information".
6 In a determination dated 10 August 2005 WorkCover identified 18 folios that were considered to fall within the scope of the second application. Of these, 14 folios were identified as exempt documents pursuant to clause 7 of Schedule 1 to the FOI Act being internal working documents created as part of WorkCover deliberations in forming responses to Ministerial inquiries on Mr Dimovski's behalf. It was determined that Mr Dimovski would be given all of the remaining identified documents.
7 By letter dated 25 August 2005 Mr Dimovski sought an internal review of WorkCover’s determinations relating to his applications. In particular, he stated that the determination of 21 July 2005 did not provide him with all the documents requested.
8 By letter dated 9 September 2005 Mr Dimovski was advised that the request for internal review of the first application was out of time. As to the second, WorkCover determined to give Mr Dimovski access to a further 8 of the identified documents but determined to withhold the remaining documents on the internal working documents exemption.
9 By letter dated 23 August 2005 Mr Dimovski wrote to WorkCover and requested in the following terms:
10 Mr Sam Jenkin, the A/Manager of WorkCover’s Executive and Ministerial Services Unit, determined that request on 6 October 2005 and advised Mr Dimovski that the Workers Compensation Commission held no records that relate to him and declined his request for amendment of documents.
"1. To correct my personal record for the file matter No 5887/01 to be put under my name, Steve Dimovski - D0B:14-06-53.
2. Copy of the all File Matter No 5887/01 including - copy of the settlement - dated on 16.01.03.
(a) You have put matter No 5887/01 under Steve Dimovski D0B: 17.06.47, which is incorrect. And some body from the commission mislead all information.
3. Copy of all information related to Matter No 5887/01.
4. Copy of any others Matters No hold under my name: DOB = 14.06.53 Steve Dimovski."
11 By letter dated 5 October 2005 Mr Dimovski wrote to WorkCover referring to a number of matters in the Compensation Court and the Workers Compensation Commission. He asserted that payments had not been made in relation to those matters and requested, amongst other things, a list of payments made by the Rail Infrastructure Corporation. WorkCover provided Mr Dimovski with a list of payments in response to that request.
12 By letter dated 28 October 2005 the Acting Director of WorkCover’s Communications Group wrote to Mr Dimovski in answer to the questions he had raised in his letter of 5 October 2005. She wrote:
13 In September 2005 Mr Dimovski also made a complaint to the Ombudsman with respect to WorkCover’s determination of his FOI applications. Following a recommendation by the Ombudsman under section 52A of the Act, WorkCover determined that access be given to all but one of the documents which had been withheld. That document was withheld on the basis of an exemption claimed pursuant to clause 7 of schedule 1 to the FOI Act. However, WorkCover provided it to Mr Dimovski on 6 June 2006, at the first planning meeting held in relation to this application. WorkCover also provided Mr Dimovski with five other documents that had been located after the original application had been determined. By letter dated 27 February 2006 the Ombudsman indicated to Mr Dimovski that he was satisfied that WorkCover’s redetermination was an appropriate response to his suggestion. The Ombudsman also advised Mr Dimovski that he would not pursue Mr Dimovski's complaint that WorkCover held further documents.
“I refer to our conversation of 5 October and your letter faxed to me on 7 October.
I understand that WorkCover has attempted to assist you with your concerns about your workers compensation claim on a number of occasions previously. We have communicated with both you and your insurer on a number of different occasions by telephone and passed onto you a list of payments made by RAIL INFRASTRUCTURE CORPORATION ('RIC') in relation to your claim.
Your fax raises a number of issues that I will address in the order that you have presented.
A. Matter number 573/01 was a claim by you with the NSW Compensation Court for a lump sum payment under s66 of the Workers Compensation Act 1987. This payment is your entitlement of permanent impairment for your lower back injury on 28 May 1998. You were awarded the sum of $12,900, however by law out of every lump sum payment made for compensation, the Health Insurance Commission ('HIC') requires that 10% be forwarded to them to cover any costs made for that injury under the Medicare Scheme. As a result $1,290 (10% of $12,900) was sent to the HIC and the remainder ($11,610) was paid to you in the form of a cheque, which was sent to you on 21 October 2002.
If you believe that you didn't receive any treatment under Medicare for this injury then you are entitled to make a claim to the HIC for refund of the money sent to them. Any claim for this money has to be made directly to the HIC and you can contact them on ph: 13 20 11. If your claim for a refund is successful you may also be entitled to claim for interest from HIC. You cannot claim for interest from the RIC as they were required by law to submit this payment to the HIC.
B. Matter number 5887/03 relates to a dispute lodged at the Workers Compensation Commission by another person - not you. This other person is also called Steve Dimovski who has a different date of birth, was employed by a different employer to yourself, lives in a different area, a different date of injury and whose type of injury was different to yours.
The matter (5887/03) is not your claim and is completely unrelated to your claim. Unfortunately the Workers Compensation Commission made an error and given you the details of the other Steve Dimovski's by mistake.
There is no money owing to you under this matter.
C. In relation to claim number 981471 RIC has advised us (WorkCover) that this claim number is related to an incident on 31 August 1998 in which you stated that you injured your left knee. RIC has advised that liability has been declined for this claim.
This claim number is not related to any claim for hearing loss lodged by you. Our records indicate that you have not lodged a claim for hearing loss. If you wish to make a claim for hearing loss based on the report provided by Dr Ghabriel you will have lodge a new claim with your former employer RIC. I have attached a claim form that RIG has provided so that you can lodge this new claim.
D. The entry dated 29/01/2003 on the list of payments for your claim was a mistake, the transaction of $58,361.86 didn't actually happen and this is not money that you are entitled to. The list of payments you have from RIG is a list of payments on a claim, it is not a transaction record of money going into and out of your account. No one was paid the money and no one returned money to RIC. The record was an error that was fixed to reflect nil (0) to avoid further confusion after you first raised the issue with WorkCover.
E. Your request for a further list of payments has to be made directly to RIC. WorkCover does not have the authority to make a Self-Insurer provide claim details. You may be able to seek further advice about obtaining personal information from the Federal Privacy Commissioner on 1300 363 992.
F. Any information about legal costs claimed by the Solicitors who were acting on your behalf would have to be requested from each Solicitor individually. The payment of legal fees to solicitors acting on your behalf is an additional expenses paid by the Workers Compensation Scheme, it is not taken out of any settlement figure you have been awarded and therefore not money that would ever be paid directly to you.”
14 At the planning meeting on 6 June 2006 I directed that Mr Dimovksi provide a statement to WorkCover setting out the basis of his belief that WorkCover held further documents that come within the scope of his applications. The parties were to meet following provision of that statement. Mr Dimovski wrote to WorkCover by letter dated 11 June 2006. His letter did not set out the basis of his belief that further documents existed, but sought copies of additional documents. A meeting between the parties that was held on 3 July 2006 did not resolve the issues raised by Mr Dimovski, however he was subsequently provided with further documents.
15 Mr Jenkin wrote to Mr Dimovski following the meeting 3 July 2006 and set out WorkCover’s position regrading other documents that Mr Dimovski asserted were within the scope of his application. His letter stated in part:
Issues
“In relation to your letter of 11 June 2006, I can advise you that matter numbers 5887/03, 1829/02 and 5601/05 (your letter suggested 6501/05) do not relate to you or your workers compensation claims, and therefore do not come within the scope of your freedom of information application.
These three matters (5887/03, 1829/02 and 5601/05) relate to the matter of Mr Steve Dimovski v Bullivants Pty Ltd. As you are aware, this is a different Steve Dimovski, with a different birth date. These files do not relate to you.
I note your request for copies of documents related to 0005731/01, 12334/00, 4619/99, 0060405/01 and 40787/00. Given the years indicated in these matter numbers, it is clear that these matters predate the existence of the Workers Compensation Commission, for which WorkCover undertakes freedom of information services and which commenced operations from January 2002.
Based on the documentation provided by you at our meeting of 3 July 2006 and those discussions, it is clear that matters 0046419/99, 0032677/99, 0060405/01 and 0040787/00 relate to actions undertaken on your behalf before the Workers Compensation Resolution Service, which operated in tandem with the Compensation Court of New South Wales before these bodies were replaced by the Workers Compensation Commission.
While WorkCover does in fact hold a range of Workers Compensation Resolution Services records, and following the provision of further information on 3 July 2006 additional searches were undertaken on your behalf, WorkCover has been unable to locate documents held by it with respect to matters 0046419/99,0032677/99 and 0060405/01.
WorkCover has however been able to locate reference to matter 0040787/00 and retrieval action has been commenced with respect to this file. Upon successful retrieval, documents from this file associated with your freedom of information application will be made available to you.
The other matter numbers you have listed may or may not relate to matters heard before the Compensation Court of New South Wales. The District Court is the contact point for searching and accessing documents relating to Compensation Court proceedings. In this regard, you may wish to contact Ms Mary O'Connell at the District Court by telephone on 9377 5454 to discuss making an application to the Court for access to documents held by it.
All documents held by WorkCover relating to your claim and actioned by Ms Marie Kanyaro, Ms Joanne Webber and Ms Loretta Karazinov, both pertaining to Mr Peter Tisano of Rail Infrastructure Corporation and otherwise, have been made available to you as per items 1-3 above.
Documents relating to your Interpreter Payments Assistance Scheme application have previously been provided to you.
Finally, in relation to you request for documentation connected to your hearing loss claim, it is important to note that in general, documentation relating to individual claims is held by the Scheme agent or self/specialised insurer managing the claim. WorkCover will usually hold copies of documents provided to it or obtained by it in the course of fulfilling its regulatory and investigatory functions. With this in mind, I suggest that you contact the insurer or Scheme agent managing your claim for documentation in this regard.
To obtain access to any documentation that post-dates your application of mid-2005, I would encourage you to make a further application under the Freedom of Information Act 1989.”
16 The issue requiring determination in this case is whether WorkCover has provided all documents that fall within the scope of Mr Dimovski’s application.
WorkCover’s case
17 Mr McDonnell submits that, where an agency asserts, as here, that it has no further documents, the Tribunal has no jurisdiction to review the matter. This is an argument that was argued and ultimately rejected in Cianfrano v Director-General, Department of Commerce [2006] NSWADT 195. That decision is the subject of an appeal.
18 WorkCover’s alternative argument is that although WorkCover has the onus of establishing exemptions, Mr Dimovski bears the onus in a case such as this where he asserts that the agency holds further documents. Mr McDonnell submits that despite being invited by the Tribunal to do so, Mr Dimovski has failed to discharge his onus. He relies on the decision of the Tribunal’s President in Cianfrano where he stated at paragraph [69]:
19 Mr Jenkin provided a statement and appeared at the hearing and was subjected to cross-examination. He provided a detailed account of the steps taken in trying to locate documents to satisfy Mr Dimovski’s request. His evidence is consistent with the contents of the letter that he sent to Mr Dimovski following the meeting 3 July 2006.
“69 An applicant, it seems to me, must put some credible material or submissions before the Tribunal which persuades the Tribunal that an arguable case of that kind exists. It cannot be enough that the applicant merely asserts a non-compliance of the kind to which s 24(2) is addressed. It is not enough for an applicant simply to base the assertion on a deep-seated distrust of the agency. Care must be exercised in putting the agency to the cost and effort of making further searches or putting on affidavit evidence.”
20 Mr Jenkin stated that WorkCover has made inquiries with the Registry of the Workers Compensation Commission in relation to matter number 1850/03 and that the Registry of the Workers Compensation Commission advised that they do not hold any files relating to this matter number.
21 WorkCover submits that Mr Dimovski has not discharged the onus of providing the Tribunal with credible material or submissions that there is an arguable case that the agency has failed to properly search for the document falling within the scope of his request. That is the conclusion to which the Ombudsman came and the Tribunal is entitled to dismiss Mr Dimovski's application without considering the evidence put forward by WorkCover.
22 Alternatively, if the Tribunal does not accept this submission, WorkCover submits that the Tribunal ought to conclude that these are not reasonable grounds to believe that the requested documents exist and are documents of the agency.
23 WorkCover has provided to the Tribunal, on a confidential basis, the files that are held in its possession, which it asserts relate to a different Steve Dimovski, with a different birth date. Those files are numbered 5887/03, 1829/02 and 5601/05. As indicated in the passages quoted above, WorkCover maintains that each of those files relate to the matters between a different Steve Dimovski and Bullivants Pty Ltd and do not relate to Mr Dimovski. WorkCover invited me to examine those files and to ascertain whether I agree with WorkCover’s assertion.
Mr Dimovski’s case
24 Mr Dimovski provided a detailed statement which he contends supports his assertion that WorkCover should have other documents that fall within the scope of his request and which have not been given to him.
25 Mr Dimovski’s statement is extremely difficult to follow. It sets out a chronology of events in relation to various claims that he brought against his former employers and the difficulties that he has experienced in prosecuting those matters and enforcing orders in his favour. Most of the material that he has annexed to his statement appears to have little if any relevance to these proceedings. At best it establishes that claims were bought and therefore files would have been created with respect to those claims.
26 Of the files that he has identified as relating to his matters, which he says should be held by WorkCover, WorkCover says that it has been unable to locate documents with respect to matters 0046419/99, 12334/00, and 0060405/01. Mr Dimovski asserts that WorkCover should hold those files and that there has been a cover-up within WorkCover and a deliberate attempt to prevent him from accessing those documents.
27 It seems that he has attempted to investigate the cause of the problems in enforcing his orders and that during his investigations he learned of the existence of additional files: Workers Compensation Commission Matter numbers 1829/02; 5887/03 and 5601/05. He contends that these files relate to him and requests that he be given access to them. He gave evidence with respect to discussions that he had with the other Steve Dimovski and lawyers acting on behalf of the other Steve Dimovski. From those discussions he concluded that the files that WorkCover say relate to the other Steve Dimovski in fact relate to him.
28 Mr Dimovski submits that WorkCover has been able to locate other files from the same source as those that it says it can’t locate and therefore it should be able to locate the rest of the files. He says that the search was inadequate and should be carried out more thoroughly.
Findings and Decision
29 The principal issue in this matter is whether the search undertaken by WorkCover was sufficient. I do not agree with Mr McDonnell’s submission that the Tribunal has no jurisdiction to review the matter. This is an argument was rejected in Cianfrano and in the circumstances I propose to follow that decision.
30 In the alternative, WorkCover asserts that it has undertaken a thorough search for the documents that Mr Dimovski is seeking and that if they were held by the agency they would have been located. Mr Jenkin stated that WorkCover has no reason to withhold the documents and would have provided them to Mr Dimovski if they were found.
31 Mr McDonnell relies on the decision of the Tribunal’s President in B v Commissioner of Police, New South Wales Police Service [2000] NSWADT 168 where he stated at paragraph [13]:
32 The Tribunal has considered what constitutes a sufficient search in a number of cases. In Hemeon v Commissioner of Police, New South Wales Police Service [2002] NSWADT 201 the Tribunal’s President stated at [18] –[19]:
“13 The key issue for the Tribunal was whether the conclusion that these three officers had reached, that the agency did not hold any documents relating to the applicant other than the ones released (both unrelated to the events of 1974), was sound. If so, it would be open to the Tribunal to conclude that there were no other documents held by the agency in relation to the request, that the request had been met and consequently there was no basis for the application for review.”
33 This Tribunal has followed that approach consistently.
“18 The approach to be taken by the Tribunal in addressing that issue is dealt with in Shepherd and Department of Housing, Local Government & Planning [1994] QICmr 7 (18 April 1994); (1994) 1 QAR 464; applied in Ainsworth and Criminal Justice Commission; A and B (third parties) [1999] QICmr 10 (17 December 1999) and B -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 168.
19 In Shepherd the Queensland Information Commissioner said at [19] the questions for consideration were:
‘(a) whether there are reasonable grounds to believe that the requested documents exist and are documents of the agency (as that term is defined in s.7 of the FOI Act); and if so,
(b) whether the search efforts made by the agency to locate such documents have been reasonable in all the circumstances of a particular case.’”
File No.s 0046419/99, 12334/00, and 0060405/01
34 Mr Dimovski asserts that WorkCover should hold these documents and he alleges a cover-up. In contrast, WorkCover submits that there are no reasonable grounds to believe that the requested documents exist and are documents of the agency.
35 On the evidence before me I agree with Mr Dimovski that the documents that he is seeking would normally fall within the category of documents held by WorkCover. However, I accept Mr Jenkin’s evidence in regard to the attempts taken to locate the files and in my view there is no evidence to support the allegation of a cover-up.
36 In my view, the search efforts made by the agency to locate the documents are reasonable in all the circumstances.
File No.s 1829/02; 5887/03 and 5601/05
37 WorkCover provided these files to the Tribunal, on a confidential basis, and I have examined them to ascertain whether I agree with WorkCover’s assertion that the files relate to another Steve Dimovski. I agree with WorkCover’s assertion that each of those files relates to matters between a different Steve Dimovski and Bullivants Pty Ltd. In my view there is no doubt that these files do not relate to Mr Dimovski. They therefore do not fall within the scope of his application and should not be provided to him.
Conclusion
38 On the evidence provided on behalf of WorkCover I am satisfied that the search it has undertaken was sufficient. I do not think that WorkCover should be required to carry out any further search in the matter. Accordingly it is my view that the decision that has been made is the correct and preferable one and therefore I will affirm that decision.
39 While it is my view that the majority of the issues that Mr Dimovski raised are not matters that fall for determination n this matter, I note that the letter dated 28 October 2005 from the Acting Director of WorkCover’s Communications Group to Mr Dimovski appears to provide a reasonable answer to most of those issues. The letter that Mr Jenkin wrote to Mr Dimovski following the meeting 3 July 2006 appears to provide a reasonable answer to the rest of those issues.
Order
The decision under review is affirmed.
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