Franklin and John Holland Pty Ltd (Compensation)
[2025] ARTA 201
•31 January 2025
Franklin and John Holland Pty Ltd (Compensation) [2025] ARTA 201 (31 January 2025)
Decision and Reasons for Decision
Applicant/s: Darren Franklin
Respondent: John Holland Pty Ltd
Tribunal Number: 2024/2288
Tribunal: General Member D Stevens
Place: Sydney
Date: 31 January 2025
Decision:Pursuant to section 78(6) of the Administrative Review Tribunal Act 2024, the following materials produced by Comcare in response to a summons issued in this matter by the Administrative Appeals Tribunal on 7 August 2024 may not be inspected or copied by the applicant:
a. paragraphs 5-9, 16 and 17 of the document headed “Inspector report” dated 15 March 2022; and
b. the entirety of the 4-page document headed “Inspector Report” dated 18 May 2022.
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Statement made on 31 January 2025 at 4:28pm. General Member D Stevens
Catchwords
SUMMONS – workers compensation –- Comcare – inspection of summonsed material –- relevance – request to inspect summonsed material refused.
Legislation
Administrative Review Tribunal Act 2024
Cases
Martinovic and Australian Capital Territory (Compensation) [2021] AATA 3435 (27 September 2021)
Medtest Pty Ltd and Medicare Participation Review Committee and Anor [2003] AATA 983 (15 September 2003)
ZFCC and Comcare (Compensation) [2018] AATA 1358 (22 May 2018)
Statement of Reasons
The application
The matter before me is an objection on behalf of the respondent to the applicant being allowed to inspect certain materials produced by Comcare in response to a summons to produce documents issued by the Administrative Appeals Tribunal (AAT) in this matter.
Pursuant to section 78(6) of the Administrative Review Tribunal Act 2024 (the Act), as a result of this objection I must decide whether the documents may be inspected by a party to the proceeding.
Applicable Legislation
Section 74 of the Administrative Review Tribunal Act 2024 (the Act) provides:
(1) If the Tribunal has reasonable grounds to believe that a person has information, or a document or thing, relevant to a proceeding in the Tribunal, the Tribunal may, in writing, summon the person to do either or both of the following, on the day, and at the time and place, specified in the summons:
(a)appear before the Tribunal to give evidence;
(b)produce any document or thing specified in the summons.
Section 78 relevantly provides:
(4) The person required to produce the document or thing, or any party to the proceeding, may give the Tribunal notice that the person or party objects to the document or thing being inspected or copied.
(5)A notice under subsection (4):
(a) may be made in writing or in any other manner specified in the practice directions; and
(b) must contain reasons for the objection.
(6) If a notice is given under subsection (4), the Tribunal must decide whether the document or thing may be inspected or copied by a party to the proceeding.
Background
On 25 November 2023, the respondent advised the applicant that they “accepted liability to pay [the applicant] workers’ compensation for the additional psychological condition, such that liability has been accepted for ‘Electrocuted L facial injury dermal burn and anxiety and depression’ sustained on 23 September 2021”1 (the incident). In their determination of 29 January 2024, the respondent “determined that you were not presently entitled to compensation … including because the evidence before the determining delegate indicated that you ceased to suffer the effects of the compensable injury”2 (the determination). Following a request for review, on 18 March 2024, the respondent affirmed the determination of 29 January 2024, “which found that there was no present liability to pay compensation to [the applicant] for medical treatment and incapacity … in respect of the compensable injury”.3
In affirming the determination, the respondent stated they “agree(d) with the determining officer that the opinion of Dr Kar is to be preferred over the opinion of the other reporting medical practitioners”.4 Dr Kar, a psychiatrist, assessed the applicant at the respondent’s
1 Letter from respondent to applicant, 18 March 2024, Statement of Reasons paragraph 5.
2 Letter from respondent to applicant, 18 March 2024, Statement of Reasons paragraph 6.
3 Letter from respondent to applicant, 18 March 2024.
4 Letter from respondent to applicant, 18 March 2024, Statement of Reasons paragraph 38.
request by videoconference on 7 November 2023, and provided a report on the same day. The respondent notes “Dr Kar’s opinion is that you do not have PTSD or any psychological condition presently, work-related or otherwise, and so having regard to Dr Kar’s opinion I cannot be satisfied that you suffer the effects of the compensable injury, such that I find you presently have no need for medical treatment and are not incapacitated for work as a result of the compensable injury and John Holland is not presently liable to pay you compensation”.5
The summons
The summons was issued on 7 August 2024. It required Comcare to produce the following materials in relation to an incident involving the applicant which occurred on 24 September 20216:
i. An unredacted and complete copy of the authorised Inspector’s Report dated 15 March 2022 into the Incident.
ii. Unredacted and complete copies of all witness statements obtained into the Incident, including but not limited to, witness statements provided in response to s155 of the Workplace Health and Safety Act notices.
iii. An unredacted and complete copy of the Verification Inspector’s Report into the Incident, dated 23 May 2022.
iv. An unredacted and complete copy of the authorised Inspector’s notes into and related to the incident.
Comcare produced documents to the AAT Registry in response to the summons under cover of letter dated 27 August 2024.
Objection by the respondent
The respondent objects to the applicant inspecting or copying the following documents on the basis that they are not relevant to the issues before the Tribunal:7
5 Paragraph 41.
6 This appears to be a typographical error, as the incident occurred on 23 September 2021
7 Email from the respondent’s representative to AAT Registrar, copied to applicant’s representative, dated 27 September 2024.
i.Paragraphs 5-9, 16 and 17 of the Comcare report dated 15 March 2022;
ii.The inspector report dated 18 May 2022 in its entirety.
Issues in the substantive matter
The question of relevance raised by the respondent depends on the issues between the parties in the substantive matter, hence my setting out the background above. My understanding is that it is agreed between the parties that the incident of 23 September 2021 did indeed occur; this caused the applicant to be injured at work; and there was a compensable injury. The issues of contention between the parties are around whether at the time of the determination and afterwards there was any ongoing effect of the compensable injury, including whether the applicant has PTSD or any psychological injury. In particular, the applicant takes issue with aspects of Dr Kar’s report,8 and the extent of the reliance placed on that report in making both the determination and the reviewable decision.
Case law
At hearing, only one authority was raised. The applicant’s representative specifically referred to a decision of the AAT, Martinovic and Australian Capital Territory (Compensation) (Martinovic).9 The respondent’s representative did not disagree with the description of the appropriate test enunciated in that case, as set out by the applicant:
A Tribunal summons must be for a legitimate forensic purpose. In order to establish a legitimate purpose, it is not necessary to establish that the material sought has substantial relevance to the issues that must be decided in the proceedings. Nevertheless, the material sought must have apparent or adjectival relevance to the issues in the principal proceeding.10
Further,
The threshold of apparent relevance that applies to materials produced under summons is somewhat broader than the relevance threshold that applies when considering the admission of evidence. Whether the materials have apparent or adjectival relevance is a matter to be assessed against the substantive issues to be
8 Independent Psychiatric Examination and Report by Dr Prabal Kar, 7 November 2023, T 523.
9 [2021] AATA 3435 (27 September 2021).
10 Paragraph 14.
decided in the proceedings and the purposes to which the materials may legitimately be put in the proceedings.11
There is of course a myriad of authority on issues relating to subpoenas and summonses from all courts and tribunals in Australia. I shall note two AAT decisions. The first is Medtest Pty Ltd and Medicare Participation Review Committee and Anor12, where in circumstances where production was not oppressive, the then President of the AAT stated “it seems to me to be desirable that all the material which the applicant may wish to put before the Tribunal shall be available to the applicant for that purpose. The Tribunal can rule on ultimate issues of relevance at the time the material is sought to be tendered”.13
The second is ZFCC and Comcare (Compensation),14 where the then Deputy President stated:
Even when the content of a particular record is fully comprehensible, the relevance of that content to the issue before the Tribunal may not be readily apparent. A member of the Tribunal lacking medical qualifications, as most of us do, is ill- equipped to determine the possible relevance of particular medical records to a particular claimed condition.15
Hearing
The application was heard before me on 4 November 2024. The applicant was represented by Mr Lehmann of Gerald Malouf Partners. The respondent was represented by Ms Bortone of Sparke Helmore Lawyers.
At hearing, Ms Bortone referred to her email of 27 September 2024 which set out the materials which are the subject of the respondent’s objection. She noted the applicant’s position, set out in their email of 30 September 2024, was that the applicant be provided with unredacted copies of all of the materials so that they could consider whether they press for materials to be admitted into the proceedings. She stated, consistent with her email of 30 September 2024, that this would be inconsistent with the Tribunal’s usual course in such
11 Paragraph 29.
12 [2003] AATA 983 (15 September 2003).
13 Paragraph 6.
14 [2018] AATA 1358 (22 May 2018).
15 Paragraph 14.
a case. Ms Bortone put to me that on my examination I would see that the documents are not relevant. She said that while the applicant says that matters relating to the circumstances giving rise to the claim are relevant, these records do not go to the issue before the Tribunal.
Mr Lehmann said that the applicant was at a disadvantage in arguing the matter without being able to consider the documents. He raised that substantial relevance is a matter to be decided in the substantive proceedings, and referred to the decision in Martinovic, as per paragraphs 13 and 14 herein, submitting that at this stage it is a question of whether there is apparent or adjectival relevance, whether there was real possibility that material could reasonably throw light on the issues and may assist, and that if there was a reason to suppose that the materials were so capable, then they have apparent relevance. He said that the respondent sought to minimise the event that led to the claim, saying it was not likely that it caused psychological injury.
Ms Bortone said that she took no issue with the submissions regarding relevance, and agreed that the applicant was at a disadvantage in not having seen the materials, saying that this was the proper course. She again stated that the documents had no relevance to the particular issues that the Tribunal was to consider.
Post-hearing
The objection of the respondent includes the applicant inspecting or copying “the inspector report dated 18 May 2022 in its entirety”. The bundle of documents produced by Comcare in response to the summons includes a 4-page document headed “Inspector Report”, dated 18 May 2022, and signed on 23 May 2022. For abundance of caution, I had a Tribunal officer contact the parties by email on 3 January 2025 and then again on 16 January 2025 to confirm that this was the document in question; that the objection was to these 4 pages; and that none of the other pages may be considered to be an attachment to the report, and thereby caught by the objection. To date, there has been no response to these emails. I have taken the position that relevantly, the respondent’s objection to the applicant inspecting or copying the inspector report dated 18 May 2022 in its entirety is an objection to the applicant inspecting or copying those 4 pages.
Consideration – the issue of relevance
I have read the materials in respect of which the objection is raised. Given its importance to both the determination and the reviewable decision, and the issue of relevance raised before me, I have also read the report of Dr Kar.
From her submissions at hearing, her emails, and my perusal of the Tribunal file, I understand that Ms Bortone’s objection is on the basis that, put roughly, the issues for consideration by the Tribunal have been narrowed. There is no argument that the incident occurred, nor that the applicant suffered physical injury. There is no dispute over liability such that would require the Tribunal to consider an investigation report so as to apportion blame in assessing responsibility. It is the incident rather than the technical cause of the incident as revealed by an investigation which would be the causal factor in relation to any psychological harm.
There is no submission that all material around the incident itself is irrelevant. The case of ZFCC and Comcare related to medical evidence and the difficulties that a non-medically trained Tribunal member may have in determining its relevance to a particular medical condition. While this matter does not involve medical evidence, the remarks of the Deputy President in that matter are apposite here. For example, it is difficult to know in advance the relevance of evidence regarding trauma, to questions of post-traumatic stress.
In the “reasons for the request” of their “Request to Issue Summons” signed on 23 July 2024, the applicant states “the Respondent relies squarely on the opinion of Dr Prabal Kar (psychiatrist and IME) in his medical report dated 7 November 2023”.16 They note common ground between the parties, for example “It is an uncontested fact, that the claimant was exposed to a high voltage electrical charge on 23 September 2021 during the course of his employment with John Holland. Safework NSW reported charge consisted of 1,000 volts of electricity”.17
The applicant further states
16 Paragraph 2.
17 Paragraph 5(i).
Dr Kar concluded that the injurious event did “not meet Criterion A for DSM-V Post Traumatic Stress Disorder which requires ‘exposure to actual or threatened death, serious injury.”
Dr Kar concluded that, “Mr Franklin was not exposed to actual or threatened death. He had received an electric shock but with no serious or permanent physical injuries”.
Dr Kar considered the injurious event did not qualify as a “stressful event or situation of an exceptionally threatening or catastrophic nature, which [was] likely to cause pervasive distress in almost anyone”.18
Accordingly, notwithstanding the narrowing of issues in this matter, given the reliance on and the importance of Dr Kar’s report in relation to the reviewable decision and the issues which remain between the parties, contextual material contained within the bundle of documents produced by Comcare which relate to the trauma experienced by the applicant as a result of the incident is of adjectival relevance, and meets the test set out in Martinovic and elsewhere. Similarly, there appears to remain some dispute as to the seriousness of the incident, the resolution of which may be assisted by portions of the materials produced by Comcare which relate to that.
I have reviewed the materials in respect of which the objection is raised with these points in mind, including the issues raised in respect of Dr Kar’s report.
With respect to the document headed “Inspector report” dated 15 March 2022 (with the date 14 March 2022 struck through), I uphold the objection to the applicant inspecting or having access to paragraphs 5-9, 16 and 17, on the ground of relevance. These paragraphs deal with issues of managerial responsibility, compliance, liability, and subsequent technical response, rather than the nature and seriousness of the incident. In terms of ZFCC and Comcare, and the ability of a non-medically trained Tribunal Member to determine relevance in relation to a medical condition, these paragraphs do not contain anything related to any assessment of the applicant, nor do they relate to the experience of the applicant during or after the incident.
With respect to the 4-page inspector report dated 18 May 2022, I uphold the objection to the applicant inspecting or having access to those 4 pages. They relate to the actions undertaken by the inspector, and technical steps taken to reduce future risk. They do not
18 Paragraph 3.
relate to the nature and seriousness of the incident, nor to any assessment of the applicant, nor to the experience of the applicant during or after the incident.
Conclusion
Pursuant to section 78(6) of the Act, for the reasons set out above, the Tribunal has decided that the following materials produced by Comcare in response to a summons issued in this matter by the Administrative Appeals Tribunal on 7 August 2024 may not be inspected or copied by the applicant:
(a)paragraphs 5-9, 16 and 17 of the document headed “Inspector report” dated 15 March 2022; and
(b)the entirety of the 4-page document headed “Inspector Report” dated 18 May 2022.
Date(s)of hearing: 4 November 2024 Datefinalsubmissionsreceived:
30 September 2024
SolicitorsfortheApplicant:
Mr C Lehmann, Gerald Malouf & Partners
SolicitorsfortheRespondent:
Ms A Bortone, Sparke Helmore Lawyers
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