DVFW and Comcare (Compensation)
[2022] AATA 2126
•24 June 2022
DVFW and Comcare (Compensation) [2022] AATA 2126 (24 June 2022)
Division:GENERAL DIVISION
File Number(s): 2021/3339
Re:DVFW
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Deputy President B W Rayment OAM QC
Date:24 June 2022
Place:Sydney
The Tribunal gives directions as set out in paragraphs 9 and 10 of its reasons for decision.
.......................[sgd].................................................
Deputy President B W Rayment OAM QC
CATCHWORDS
Practice and procedure – applicant unable to view summons material to avoid reliving trauma – independent lawyer to review for legal professional privilege
CASES
Re KLGL, QCYY and Australian Prudential Regulation Authority [2008] AATA 452
REASONS FOR DECISION
Deputy President B W Rayment OAM QC
24 June 2022
The applicant and the respondent are at issue on the appropriate quantity and regularity of Psychotherapy treatment she requires for her accepted condition.
The applicant objects to the summonses which the respondent has issued, and objects to the respondent having access to such documents as have been produced.
The summonses cast a wide net, and are hard to relate to the issues in dispute on their face. A partial examination by me of some of the documents produced suggests to me that they will never be deployed in the case.
Two of the persons summonsed have produced nothing and one, Dr Heard has urged the Tribunal to set aside the summons addressed to him on grounds relating to the applicant’s mental health.
The usual practice of the Tribunal in a Comcare case is to allow the applicant first access to documents produced under summons issued by the respondent.
The applicant is self-represented and during an interlocutory hearing she informed me that she may be forced to relive trauma she once suffered from if she reads such documents to see whether she should object to access.
For that reason I will not make directions requiring the applicant to read all the documents produced.
Instead I have decided to follow the procedure of allowing first access to the documents produced to the respondent on certain terms.
In the first place, I will direct the respondent in its examination of the documents produced to have a qualified lawyer not involved in the review determine whether there are any documents produced which are legally privileged, and to segregate those documents, and identify them to the Tribunal so they may be returned by the Tribunal.
Secondly, I direct the respondent to create a subset of the documents produced which have adjectival relevance to the issues arising on the review, in the sense of that expression described by Senior Member Taylor in Re KLGL, QCYY and Australian Prudential Regulation Authority [2008] AATA 452; 104 ALD 433. For example, such documents may be useful to any expert witness to be qualified by the respondent or which may be deployed in the case, bearing in mind the issues arising. The balance of the documents are then to be segregated and not utilised by the respondent in the case without further order of the Tribunal.
I expect that the respondent will be sensitive to the applicant’s mental health concerns and the Tribunal may give further direction later in this review to seek to ensure that the no injury is caused to the applicant as a result of this review itself.
I gather that the respondent has a copy of Mr Heard’s email to the Tribunal. Dr Suman has not responded to the summons issued to him.
I have decided not to set aside the summonses and require them to be framed in narrower terms, because the summonses have already been answered, and because answering a more confined form of summons may occasion real difficulty for the staff of the doctors in answering a more specific from of summons.
I make direction as specified in these reasons.
I certify that the preceding 14 (fourteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment OAM QC
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Associate
Dated: 24 June 2022
Date(s) of hearing: 24 September 2021 Applicant: In person Solicitors for the Respondent: Sparke Helmore Lawyers
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