Dong and Comcare (Compensation)

Dong and Comcare (Compensation) [2023] AATA 4206 (20 December 2023)
Division:GENERAL DIVISION
File Number(s): 2023/5175
Re:Ai Ngoc Thi Dong
APPLICANT

ComcareAnd
RESPONDENT

DECISION
Tribunal:Mr S. Webb, Member
Date:20 December 2023
Place:Canberra

Objections not upheld.

………………………………………….
Mr S. Webb, Member
Catchwords
PRACTICE AND PROCEDURE – psychological injury compensation claim – summons –treatment records – objection to inspection – relevant principles – obligation to ensure each party is given a reasonable opportunity to present their case – apparent relevance to statutory questions – legitimate forensic purpose – objections not upheld
Legislation
Administrative Appeals Tribunal Act 1975 ss 33, 35, 39, 40A, 40B
The Health Records Act (Privacy and Access) 1997 (ACT) s 6
Privacy Act 1988 Schedule 1—Australian Privacy Principles
Safety, Rehabilitation and Compensation Act 1988 ss 5A, 5B, 14
Cases
Hearne v Street [2008] HCA 36
Lakatoi Universal Pty Limited and Ors v Walker and Ors [1998] NSWSC 470
Martinovic v Australian Capital Territory [2021] AATA 3435
Power v Comcare [2015] FCA 1502
South Pacific Hotel Services Inc v Southern Pacific Hotel Corporation Ltd [1984] 1 NSWLR 710
REASONS FOR DECISION
Mr S. Webb, Member
20 December 2023

Ai Ngoc Thi Dong claimed compensation for an alleged injury in her employment by the Department of Defence. Comcare decided to refuse the claim. This decision was affirmed on reconsideration. Ms Dong applied for review by the Tribunal.
In the course of the resulting proceedings, Comcare requested the Tribunal summons records from the Kambah Medical Centre (Kambah MC) and Gateway Home Psychology (Gateway).
On 13 October 2023, the Tribunal granted leave for Ms Dong to inspect documents produced by Kambah MC and for Comcare to inspect the documents thereafter, subject to objection.
On 27 October 2023, the Tribunal granted leave for Ms Dong to inspect documents produced by Gateway and for Comcare to inspect the documents thereafter, subject to objection.
In each case, Ms Dong objected to Comcare being granted leave to inspect parts of the documents produced. It is Ms Dong’s objection which is the subject of this interlocutory decision.
The objection
On 26 October 2023, Ms Dong lodged the following objection in respect of Comcare inspecting documents produced by Kambah MC:
1. Page 23/193, please omit the underlined and bolded sections as they relate to the
privacy of my family members.
…
2. Page 24/193, please omit the underlined and bolded sections as they relate to the
privacy of my family members.
…
3. Page 25/193, please omit the underlined and bolded sections as they relate to the
privacy of my family members.
…
4. Page 27/193, please omit the underlined and bolded section as it relates to my
privacy.
…
5. Page 28/193, please omit the underlined and bolded sections as they relate to the
privacy of my family members and myself.
…
6. Page 30/193, please omit the underlined and bolded section as it relates to the
privacy of my family members.
…
7. Page 33/193, please omit the underlined and bolded sections as they relate to the
privacy of my family members.
…
8. Page 34/193, please omit the underlined and bolded sections as they relate to the
privacy of my family members.
…
9. Page 35/193, please omit the underlined and bolded sections as they relate to the
privacy of my family members.
…
10. Page 47/193, please omit the underlined and bolded sections as they relate to the privacy of my family members.
…
11. Page 105/193, please omit the letter from Dr Alastair Taylor of CAPS Clinic in March 2011 as it has nothing to do with Comcare and it relates to my privacy.
12. Page 175/193 (duplicate page 177/193), letter from treating Clinical
Neuropsychologist Lainie Hart in May 2020, regarding my husband chronic health and my son’s mental health which relates to my husband and my son’s privacy.
…
13. Page 179/193, letter from treating Clinical Neuropsychologist Lainie Hart in June
2020, regarding my husband chronic health and my son’s mental health which relates to my husband and my son’s privacy.
…
14. Page 186, 187, 188 & 189/193, please omit the underlined and bolded sections as they relate to the privacy of myself and my family members.
…
14. Page 69 & 70/165, please omit the pages as they relate to the privacy of myself.
…
15. Page 72 & 73/165, please omit the pages as they relate to the privacy of myself.
…
16. Page 100/165, please omit the underlined and bolded sections as they relate to the privacy of myself and my family members.
…
17. Page 106/165, please omit the underlined and bolded sections as they relate to the privacy of myself.
…
18. Page 108/165, please omit the underlined and bolded sections as they relate to the privacy of myself.
Ms Dong highlighted the specific parts of the documents she objected to Comcare inspecting. The highlighted text refers to Ms Dong’s family members and traumatic experiences in her past.
On 29 October 2023, Ms Dong added the following objections to Comcare inspecting documents produced by Kambah MC:
1. Page 44/193, please omit the bolded and underlined section as it relates to the privacy of my family members.
…
2. Page 177/193, please omit the bolded and underlined section as it relates to the privacy of my family members.
…
Ms Dong highlighted the specific parts of the documents she objected to Comcare inspecting. The highlighted text refers for Ms Dong’s family members.
On 12 November 2023, Ms Dong objected to Comcare inspecting parts of documents produced by Gateway:
In regards to the summonsed material produced to the Tribunal by Gateway Psychology, I would like to object the access to several paragraphs of pages 52, 55, 56, 57, 58, 59, 61, 62.
Ms Dong circled the particular paragraphs on copies of the handwritten clinical notes Gateway produced. The circled text refers to Ms Dong’s family members.
Submissions
On 23 November 2023, Comcare pressed for unredacted access to inspect the documents produced by Kambah MC and Gateway. Comcare asserts the entire clinical records produced are adjectivally relevant to matters the Tribunal must decide in Ms Dong’s case. This is because the records are likely to contain information about factors affecting Ms Dong’s health before and after she suffered the alleged injury and factors which may have contributed to the onset or aggravation of the ailment. In Comcare’s submission, the relevance of particular information in the clinical notes is a matter for expert assessment when formulating an opinion about the nature and factors which contribute to Ms Dong’s alleged injury.
Ms Dong presses her objections. She asserts the highlighted information she objects to Comcare inspecting in the Kambah MC materials contains private information about “my siblings’ illness, my son’s behaviour, my husband’s illness, my parent’s marriage, my mum’s illness and my own surgeries” which is not relevant to her claim. She raises similar arguments in respect of the circled information in the Gateway materials “based on the privacy of my parents, my sister, my brother, my husband and my son” as the information refers to “my siblings’ illnesses, my husband’s illness, my mum’s illness, and my son’s behaviour”.
Principles
The summons power of the Tribunal in s 40A of the Administrative Appeals Tribunal Act 1975 (AAT Act) is for the purposes of a proceeding before the Tribunal and the related power under s 40B(1) to grant leave to inspect a document produced under summons is in relation to the proceeding.
This is important for two reasons.
Firstly, documents produced to the Tribunal under a summons cannot be used for any purpose other than the proceeding.[1] A person who obtains access to documents produced by compulsion under summons has a legal obligation not to use the documents for any purpose other than the proceedings in which they are produced.[2] The obligation, which is also referred to as an implied undertaking, is dealt with in Part 5 of the Tribunal President’s General Practice Direction issued on 28 February 2019.
[1] AAT President’s General Practice Direction, 28 February 2019, Part 5.
[2] Hearne v Street [2008] HCA 36, per Hayne, Heydon and Crennan JJ at [105]-[109].
Secondly, this case involves disputation about factual matters arising from Ms Dong’s claim. The Tribunal will be required to make factual findings drawn from relevant probative materials placed before it by each party. In satisfaction of s 39(1) of the AAT Act, and for reasons of procedural fairness, each party must be given a reasonable opportunity to prepare and present their case on the basis of relevant materials. The question of relevance will be determined by the Tribunal when admitting documents into evidence at the hearing of the application. At this early stage of the review proceedings, the relevance of documents produced under summons has not yet been determined and must be approached adjectivally, on the basis of apparent relevance. It is in from materials of apparent relevance each party may construct an evidentiary mosaic in support of their case.[3] It is for these reasons a party may be granted leave to inspect a document produced to the Tribunal for the purposes of the proceedings where the document is apparently relevant to issues the Tribunal must decide or where the document may serve a legitimate forensic purpose in the proceedings.
[3] Lakatoi Universal Pty Limited and Ors v Walker and Ors [1998] NSWSC 470 at 497.
The threshold of apparent relevance was discussed in Martinovic and Australian Capital Territory[4]:
23. The test of apparent relevance involves two considerations:
(a) whether there is a real possibility that the documents could reasonably be expected to throw light on some of the issues in the principal proceedings and may assist in the resolution of the issues in the proceedings; and
(b) whether there is reason to suppose that the documents will be capable of being used as evidence or for a legitimate forensic purpose in cross-examination, such that, when viewed realistically, the documents sought have a bearing on an issue which is not unreal, fanciful or speculative, or that the material sought is reasonably likely to add in some way to the relevant evidence in the case, or that it be “on the cards” that the documents sought will materially assist the party at whose request the subpoena has been issued.[5]
[5] Ibid at [23].
Considering such matters, as Clark J observed in South Pacific Hotel Services Inc v Southern Pacific Hotel Corporation Ltd[6] there is a:
“...need to balance the reasonableness of the burden imposed upon the recipient and the invasion of his private rights with the public interest in the due administration of justice and, in particular, that all material relevant to the issues be available to the parties to enable them to advance their respective cases. There is, in every case, a clash between these competing interests and whilst the balancing exercise to which I have referred must be carried out, it is the latter interest which is predominant.”[7]
[6] [1984] 1 NSWLR 710.
[7] Ibid at 719.
No doubt, medical and psychological treatment records contain private and sensitive information about the person’s experiences, symptoms, and treatments, as well as information about family members. The motivation to protect such records from disclosure to an employer or to an insurer can readily be understood as exposure of such private information may be potentially damaging, compromising or embarrassing to the person or to any family members. But an objection raised on such grounds may not be upheld if the information or the document is at least of apparent relevance to the issues the Tribunal must decide.
Consideration
Ms Dong’s claim must be decided under the injury provisions of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act). Under s 14, her entitlement to compensation turns on the existence of an injury as defined in s 5A which results in impairment or incapacity for work for which Comcare is liable. In the circumstances of her claim, the kind of injury alleged arises under the definition of disease set out in s 5B:
(1) In this Act:
disease means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
significant degree means a degree that is substantially more than material.
As can be seen, any predisposition or other matters affecting Ms Dong’s health, including her psychological health, may be taken into account. The word ‘may’ in this context has been understood as directive, such that the Tribunal shall take such matters into account.[8]
[8] Power v Comcare [2015] FCA 1502 at [94].
Ms Dong should expect her compensation claim to be thoroughly investigated and decided on the basis of relevant information. The relevance of the controversial information in the clinical notes produced by Kambah MC and Gateway may not be apparent when viewed subjectively, without the benefit of legal or expert medical opinion. For example, while information relating to past trauma may be deeply private and subjectively not relevant to Ms Dong’s claim, when viewed objectively the information may shed light on factors which contributed to the claimed injury, including the onset of related psychological symptoms, or Ms Dong’s susceptibility to such symptoms, years later. Similarly, information about the health or behaviour of an immediate family member might not subjectively appear to be relevant but, when viewed objectively in reference to the statutory questions raised by Ms Dong’s claim, the information might illuminate factors which contributed to Ms Dong’s state of mind and the onset of symptoms of the psychological ailment for which she has claimed compensation.
With regard to Ms Dong’s assertions of privacy, it is germane to briefly refer to privacy protections in the ACT in respect of medical records. The Health Records Act (Privacy and Access) 1997 (ACT) (ACT Health Records Act) sets out privacy principles applicable to a person’s health records. Under s 6, contravention without lawful authority, including a law of the Commonwealth, is not permitted. Principles 9 and 10, which limit the use and disclosure of health records, are expressly subject to a law of the Commonwealth. As the summons provisions in s 40A and s 40B of the AAT Act are laws of the Commonwealth, compliance with a summons would not unlawfully contravene the ACT Health Records Act.
Under complementary provisions of the Privacy Act 1988 (Cth) (Privacy Act) and the Australian Privacy Principle 6, the use or disclosure of personal information of a person for another purpose is not permitted by operation of s 6.1 of Part 3, Schedule 1 unless, under s 6(2)(b), the use or disclosure of the information is required or authorised by or under an Australian law or a court/tribunal order. Consequently, where inspection of personal information is authorised by order of the Tribunal under s 40B of the AAT Act, s 6.1 of Privacy Principle 6 does not apply.
Considering these matters, I am satisfied there is a real possibility the information Ms Dong seeks to protect in the documents produced by the Kambah MC and Gateway will shed light on factors which may have causally contributed to the ailment for which she has claimed compensation as an injury. I am also satisfied the information is likely to serve a legitimate forensic purpose, including briefing medical experts who may be called to give evidence.
For this reason, Ms Dong’s objections are not upheld. Comcare is granted leave to inspect the unredacted documents produced by Kambah MC and Gateway.
With regard to the privacy issues Ms Dong has raised in respect of her private information and the private information of or about family members, it is open for her to seek orders under s 35 of the AAT Act to prevent wider disclosure or publication of the information she objects to Comcare inspecting. Should such an application be made, it will be decided on the merits.
Interlocutory decision
Objections not upheld.

I certify that the preceding 29 (twenty-nine) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member.

........................................................................
Associate
Dated: 20 December 2023

Date final submissions received:

29 November 2023

Applicant:
Self-represented

Solicitor for Respondent: Ms Monica Macor, Sparke Helmore Lawyers

[4] [2021] AATA 3435.

[2023] AATA 4206

20 December 2023

Key Legal Topics

Areas of Law

Employment Law

Administrative Law

Statutory Interpretation

Legal Concepts

Procedural Fairness

Discovery

Statutory Construction

Appeal

Standing

Judicial Review

Date final submissions received:	29 November 2023
Applicant:	Self-represented
Solicitor for Respondent:	Ms Monica Macor, Sparke Helmore Lawyers