Flanagan and Comcare
[2011] AATA 446
•27 June 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 446
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/2081
GENERAL ADMINISTRATIVE DIVISION ) Re Patrick Flanagan Applicant
And
Comcare
Respondent
DECISION
Tribunal Deputy President J W Constance Date27 June 2011
PlaceMelbourne
Decision 1. Within 14 days of the making of this direction the applicant apply to the appropriate government department or agency to obtain copies of the records relating to the social security benefits received by him and referred to in paragraphs 30, 31 and 32 of his statement made 22 October 2010 and filed in these proceedings;
2. the applicant shall provide to the Tribunal a copy of all documents obtained by him in accordance with the preceding direction within 7 days of receiving the documents;
3. unless the Tribunal directs otherwise the applicant shall provide to the respondent a copy of the documents within 21 days of receiving the documents.
....l..(sgd J W Constance)......
Deputy President
COMPENSATION – power of the Tribunal to direct the applicant to produce documents not in his possession in preparation for hearing - Administrative Appeals Tribunal Act 1975 (Cth) s 33(2A) – direction in personam - Social Security (Administration) Act 1999 (Cth) s 207 - Comcare v Maganga (2008) 101 ALD 68; [2008] FCA 285
Held: The Tribunal has the power to direct the applicant to provide documents not in his possession.
Administrative Appeals Tribunal Act 1975 (Cth) ss 33(1)(a), 33(1AA), 33(2A), 35 and 37
Social Security (Administration) Act 1999 (Cth) s 207
Comcare v Maganga (2008) 101 ALD 68; [2008] FCA 285
Merkuloff and Yalisheff [2003] NSWSC 1183
Rayson and Repatriation Commission (2008) 109 ALD 137; [2008] AATA 1063
Rayson and Repatriation Commission (2009) 109 ALD 168
Re Seghini and Telstra Corporation Limited (1997) 44 ALD 711
REASONS FOR DECISION
27 June 2011 Deputy President J W Constance
BACKGROUND
1. Mr Flanagan injured his back in 1975. Comcare accepted liability to compensate him in respect of this injury and has paid various treatment expenses incurred from time to time.
2. On 1 October 2009 Comcare decided that at that time it had no liability to continue to compensate Mr Flanagan for expenses incurred for treatment of his back condition. The basis for this decision was that the condition then being treated was not the 1975 injury but a condition which had arisen subsequently. Comcare affirmed this decision on 29 April 2010.
3. Mr Flanagan has applied to the Tribunal for a review of the decision of 29 April 2010. This application is in the process of being prepared for hearing.
4. As part of the preparation for hearing Mr Flanagan has provided to the Tribunal and to Comcare a statement made by him on 22 October 2010. In the statement he recounts the circumstances of his 1975 injury and his subsequent employment and treatment for the injury. The statement reads in part:
30. I was receiving a benefit from the Department of Social Security and in 1984 …I decided that we should all move to Melbourne for the work opportunities. I recall trying for a bus driver’s job but when I had to explain my health problems with the back and sciatica I was told I wouldn’t get the job.
31. I remained on benefits…
32. In about 1988 my pension was altered by the Department of Social Security to an Invalidity Pension and that continued until I turned 65 years of age in 2005 when I was then transferred to the Age Pension.
5. As part of its preparation for hearing Comcare has applied to the Tribunal for a direction that Mr Flanagan obtain and provide to the Tribunal and to Comcare copies of records held by Centrelink in relation to the social security benefits received by Mr Flanagan. These records are not in Mr Flanagan’s possession and he opposes the making of the direction sought.
ISSUES FOR DETERMINATION
6. Two issues arise for determination:
1.Does the Tribunal have the power to direct Mr Flanagan to obtain copies of documents not in his possession?
2.If so, should the Tribunal exercise this power?
COMCARE’S ARGUMENT
7. It was argued on behalf of Comcare that by referring to the receipt of social security benefits in his statement, Mr Flanagan has put his receipt of benefits in issue in the proceedings. Comcare argued that as a consequence of having done this Mr Flanagan should be directed to obtain a copy of the records and provide them to the Tribunal and to Comcare. Comcare has gone so far as to provide Mr Flanagan with a completed application form to assist him to apply for the records under the Freedom of Information Act 1982 (Cth).
MR FLANAGAN’S ARGUMENT
8. Mr Flanagan argued that the Tribunal does not have the power to direct a party to take steps to obtain documents not in his or her possession as to do so would be to make an in personam order. It was argued that this is a power which may be exercised by the courts, but not by this Tribunal.
CONSIDERATION
Does the Tribunal have the power to direct Mr Flanagan to obtain, and provide to the Tribunal and to Comcare, copies of documents not in his possession?
9. Counsel for Mr Flanagan referred me to the decision of the Supreme Court of New South Wales in Merkuloff and Yalisheff [1]. In that matter the defendant sought an order to compel the plaintiff to obtain records held by Centrelink, just as Comcare seeks in relation to Mr Flanagan. The Court held that it did have the power to make the order sought and described it as an in personam order.
[1] [2003] NSWSC 1183.
10. The power of the Tribunal to give directions is contained in section 33 of the Administrative Appeals Tribunal Act 1975 (Cth).
11.Subsection 33(1)(a) provides:
s 33 Procedure of Tribunal
(1) In a proceeding before the Tribunal:
(a) the procedure of the Tribunal is, subject to this Act and the regulations and to any other enactment, within the discretion of the Tribunal.
12.Subsection 33(2A) provides:
Types of directions
(2A) Without limiting the operation of this section, a direction as to the procedure to be followed at or in connection with the hearing of a proceeding before the Tribunal may:
(a) require any person who is a party to the proceeding to provide further information in relation to the proceeding; or
(b) require the person who made the decision to provide a statement of the grounds on which the application will be resisted at the hearing; or
(c) require any person who is a party to the proceeding to provide a statement of matters or contentions upon which reliance is intended to be placed at the hearing.
13. As can be seen from the provisions referred to, the power of the Tribunal to make directions as to the procedure to be followed in preparing a matter for hearing is within the discretion of the Tribunal and is not limited by the terms of sub-section 33(2A). There is nothing in the Act to prevent the Tribunal from making directions to a person which require that person to take specified action. The Tribunal makes directions in almost all matters requiring an individual to do certain things such as the provision of a statement by the individual, the obtaining and provision of statements from others and the obtaining and provision of medical reports. Many of these directions require the person directed to provide documents not in his or her possession at the time the direction is made.
14. I do not agree that the power of the Tribunal should be limited because the power which it is sought to have exercised in this application can be described as a direction in personam. Butterworths Australian Legal Dictionary defines in personam as “an action or right of action against a specific person.” I am not aware of any situation in which the Tribunal exercises powers other than in personam. There is no justification for limiting the powers of the Tribunal in the manner proposed on behalf of Mr Flanagan. To do so would be to limit the power given by sub-section 33(2A) to directing a party to provide such further information as is in that party’s possession.
15. I find support for the conclusion I have reached in the decision of the Tribunal in Rayson and Repatriation Commission.[2] I note also that in Re Seghini and Telstra Corporation Limited [3] the Tribunal said:
[2] (2008) 109 ALD 137; [2008] AATA 1063.
[3] (1997) 44 ALD 711, 712.
There may be cases where it would be appropriate for the Tribunal to direct an applicant to take some simple reasonable step to gain possession of documents under the applicant’s control and to provide those documents to the Tribunal.
Should the Tribunal exercise the power to direct Mr Flanagan to obtain, and provide to the Tribunal and to Comcare, copies of the documents held by Centrelink in relation to social security benefits paid to Mr Flanagan between 1975 and 2005?
16. The usual course for a party who seeks the production of documents which the other party is unable or unwilling to supply is to request the Tribunal to issue a summons for the production of those documents to the person or organisation who has control of them. However this course is not available to Comcare by reason of the provisions of section 207 of the Social Security (Administration) Act 1999 (Cth).
17.Section 207 provides:
Protection of certain documents etc. from production to court etc.
An officer must not, except for the purposes of the social security law or the Farm Household Support Act 1992, be required:
(a)to produce any document in his or her possession; or
(b)to disclose any matter or thing of which he or she had notice;
because of the performance or exercise of his or her duties, functions or powers under the social security law or the Farm Household Support Act 1992, to:
(c)a court; or
(d)a tribunal; or
(e)an authority; or
(f)a person;
having power to require the production of documents or the answering of questions.
18. It is clear that the intention of Parliament was that information, such as that which Comcare seeks in this application, is protected from disclosure to the Tribunal in response to a summons and/or questions directed to an officer of the Department. However the Act does not limit the use which a person may make of his or her own information obtained by that person.
19. Two factors suggest that the Tribunal should look very carefully at the circumstances of a party before directing him or her to provide information such as is in question here. The first is that the above provision itself indicates that such information should not be readily available to the Tribunal without the consent of Mr Flanagan. This consent is not forthcoming. The effect of the direction sought is to overcome the protection afforded by the Social Security (Administration) Act despite Mr Flanagan’s unwillingness to consent to the process.
20. The second factor to consider is that the Administrative Appeals Tribunal Act does not place on an applicant the same obligation to assist the Tribunal as is placed on a decision-maker whose decision is under review. Section 33(1AA) of the Administrative Appeals Tribunal Act provides that:
Decision-maker must assist Tribunal
In a proceeding before the Tribunal for a review of a decision, the person who made the decision must use his or her best endeavours to assist the Tribunal to make its decision in relation to the proceeding.
In addition the decision maker is required to lodge with the Tribunal copies of all documents that are relevant to the review of the decision by the Tribunal and that are under the person’s possession or control.[4]
[4] Administrative Appeals Tribunal Act1975 s 37.
21. There is no provision in the Act placing similar obligations on the applicant.
22. The test which should be applied in determining whether a party should be required to provide documents to the Tribunal is the same as that applied to determine what material may be summonsed and inspected.[5] That test was stated by the Federal Court in Comcare v Maganga [6] in the following terms:
…the test of relevance is whether the documents relate to the proceedings such that there is a real possibility that they may assist in the resolution of issues in the proceedings.
Further, the test of relevance for the purpose of inspection is not confined to whether the documents in question will or may establish an inconsistent statement by a witness giving evidence in the proceedings or whether the documents themselves will prove a fact in issue. The court may allow documents to be inspected if they are apparently relevant or are on the subject matter of the litigation…or if they might be used for a legitimate forensic purpose in cross-examination…
[5] Rayson and Repatriation Commission (2009) 109 ALD 168,190.
[6] (2008) 101 ALD 68, 76 at [37]-[38]; [2008] FCA 285.
23. In this application Mr Flanagan has referred to his receipt of social security benefits in his statement and again in the Statement of Facts, Issues and Contentions filed on his behalf. Mr Flanagan has been legally represented throughout these proceedings. While these documents do not state clearly the nature of these benefits, it should be assumed that the solicitors representing Mr Flanagan would not have included the statements relating to the benefits unless this information was relevant to the issues before the Tribunal. This being so the test of relevance set out in the Maganga decision is satisfied. On the limited information before the Tribunal, the documents relating to the benefits received by Mr Flanagan apparently are relevant to the ongoing nature of the injury suffered in 1975 and/or may be legitimately used in cross-examining Mr Flanagan at the hearing.
24. Taking into account the various considerations to which I have referred I have decided that this is a matter in which directions should be made.
25. Having decided that Mr Flanagan should be directed to obtain the relevant documents and to provide copies to the Tribunal, he should not be directed to immediately provide copies to Comcare. It may be that there is material in the documents in respect of which Mr Flanagan may be entitled to apply for a direction restricting disclosure in accordance with section 35 of the Administrative Appeals Tribunal Act. To enable Mr Flanagan to make the necessary application to the Tribunal should he wish to do so, I will direct that there be a delay before he is required to provide copies of the documents to Comcare.
DIRECTIONS
26. The following directions will be made:
1.within 14 days of the making of this direction the applicant apply to the appropriate government department or agency to obtain copies of the records relating to the social security benefits received by him and referred to in paragraphs 30, 31 and 32 of his statement made 22 October 2010 and filed in these proceedings;
2.the applicant shall provide to the Tribunal a copy of all documents obtained by him in accordance with the preceding direction within 7 days of receiving the documents;
3.unless the Tribunal directs otherwise the applicant shall provide to the respondent a copy of the documents within 21 days of receiving the documents.
I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President J W Constance
Signed: ....(sgd K Peterson)....................
K Peterson, AssociateDate of Directions Hearing 29 April 2011
Date of Decision 27 June 2011
Counsel for the Applicant Mr M Carey
Solicitor for the Applicant Clark Toop & TaylorSolicitor for the Respondent Mr S Krauss
Australian Government Solicitor
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