Gadzikwa and Comcare (Compensation)
[2020] AATA 631
•18 March 2020
Gadzikwa and Comcare (Compensation) [2020] AATA 631 (18 March 2020)
Division:GENERAL DIVISION
File Number: 2018/2099
Re:TAWANDA GADZIKWA
APPLICANT
COMCAREAnd
RESPONDENT
INTERLOCUTORY DECISION
Tribunal:Member K. Parker
Date:18 March 2020
Date of written reasons: 20 March 2020
Place:Melbourne
The Tribunal refuses to issue the summonses requested by the Applicant in respect of the four people and documents as identified in his submission dated 22 December 2019.
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Member K. Parker
Catchwords
PRACTICE AND PROCEDURE – request by applicant for issuing of summonses for identified people to appear to give evidence and for the production of identified documents – Comcare opposed the issuing of the summonses – whether the evidence expected to be given by those people and the identified documents would assist in the review of the decision and determination of the principal application – principal application involves review of decision by Comcare to refuse an extension of time to allow the applicant to request reconsideration of Comcare’s decision to deny liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988 in respect of a claimed injury – summons refused
Legislation
Administrative Appeals Tribunal Act 1975
Administrative Appeals Tribunal Regulations 1995Safety, Rehabilitation and Compensation Act 1988
Cases
Comcare v Willems (1996) 43 ALD 253
Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344
REASONS FOR INTERLOCUTORY DECISION
Member K. Parker
20 March 2020
This application was listed for a telephone directions hearing on 18 March 2020. At this telephone directions hearing, Mr Gadzikwa requested that the Tribunal issue summonses for the production of certain documents and to require four identified people to attend the substantive hearing of this application. Comcare opposed the issuing of the summonses.
Mr Gadzikwa did not lodge any proposed summonses in the form approved by the President of the Administrative Appeals Tribunal under s 7(1) of the Administrative Appeals Tribunal Regulations 1995 (Cth) (Regulations). Instead, he informed the Tribunal that he had specified the identity of certain people and documents he wanted the Tribunal to summons in his written submission dated 22 December 2019 (Mr Gadzikwa’s Submission).
In Mr Gadzikwa’s Submission, the following four people were identified by Mr Gadzikwa:
(a)Ms Anna Teofilovic (the delegate who made the reviewable decision the subject of this application) so that “she could be examined about her rationale for making that decision”;
(b)Ms Alyssah Yasmin and Ms Maria Sindoni of Allianz “as witnesses to explain why Allianz had declined to provide a respondent statement and explain how information on it’s [sic] files came to be redacted and how the Vault system Allianz used to upload documents functions”; and
(c)Dr Chris Grant to “explain how he arrived at his conclusions and explain whether he had an obligation to obtain Mr Gadzikwa’s account of events and how they may have impacted Mr Gadzikwa”.
In Mr Gadzikwa’s Submissions he stated he would like “electronic versions of all consultant notes from all MLCOA consultants that examined Mr Gadzikwa”.
BACKGROUND
The history of this application is that Mr Gadzikwa made a claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) for a claimed injury. On 4 August 2017 Comcare denied liability for this claim under s 14 of the SRC Act (Original Determination). Mr Gadzikwa made a request for reconsideration of the Original Determination but he did so after the expiry of the 30-day time limit imposed under s 62(3) of the SRC Act. Allianz (acting for Comcare) allowed him to do so.
Subsequently, Mr Gadzikwa withdrew his request for reconsideration and asked Allianz if he would be permitted to make the request again, at a later date. Allianz allowed Mr Gadzikwa to do so.
Mr Gadzikwa made two further consecutive requests for extensions of time to make his request for reconsideration and on both occasions Allianz allowed him to do so. Ultimately, Mr Gadzikwa did not make a request for reconsideration within those extended time limits allowed for by Allianz.
On 6 February 2018 Mr Gadzikwa requested again that Allianz allow him to make a request for reconsideration on 31 March 2018 citing a number of different reasons for making this request. On 14 February 2018, a delegate of Comcare denied Mr Gadzikwa’s request because the delegate considered that Mr Gadzikwa’s reasons had not been made out or were insufficient to warrant a further extension (Reviewable Decision). The Reviewable Decision is included within the set of documents lodged by Comcare pursuant to its obligations under s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) at T30/447–451. The Tribunal will refer to this set of documents as the
T-Documents.
The delegate’s statement of reasons forming part of the Reviewable Decision is five pages long and addresses in detail the delegate’s consideration of the explanation provided by Mr Gadzikwa as to why he was unable to make his request for reconsideration within the extended time frame.
The T-Documents contain a total of 451 pages of documents which were produced by Comcare on the basis that it considered them to be relevant to the Reviewable Decision. As directed by the Tribunal (differently constituted), Mr Gadzikwa lodged another voluminous set of documents in support of his application which were not paginated by him, but appear to the Tribunal to be in the vicinity of about 400 pages.
The AAT Act contains a number of provisions that relate to the manner in which the Tribunal should conduct review applications before it, including the following:
(a)s 2A; which provides that in carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that is accessible; fair, just, economical, informal and quick; is proportionate to the importance and complexity of the matter; and promotes public trust and confidence in the decision-making of the Tribunal;
(b)s 25(4A); which provides that the Tribunal may determine the scope of the review of a decision by limiting the questions of fact, the evidence and the issues that it considers; and
(c)s 33(1); which provides that:
(i)the procedure of the Tribunal is within the discretion of the Tribunal, subject to the AAT Act, Regulations and any other enactment;
(ii)the proceeding shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of the AAT Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit; and
(iii)the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.
The Tribunal’s power to summon a person to give evidence or to produce documents arises under s 40A of the AAT Act. Subsection 40A(2) allows for the Tribunal to refuse a request for a summons to be issued.
CONSIDERATION
In exercising the discretion to issue (or refuse to issue) a summons requested by either party, the Tribunal must be satisfied that the evidence expected to arise from the documents sought or the person sought to be called, would assist in the review of the decision and determination of the principal application. Put another way, the Tribunal must consider whether that evidence could reasonably be expected to throw light on some of the issues in the substantive proceeding. It is insufficient that the relevance of such documents or the evidence expected to be given by the identified people is speculative. Comcare contended that the evidence sought by the summonses requested by Mr Gadzikwa was irrelevant to the principal application.
Regard must also be had to the impost on the people sought to be summonsed or to the organisation which would need to collate and produce the identified documents. This is to be weighed against the public interest in the administration of justice by ensuring that the evidence relevant to the application for review is before the Tribunal, bearing in mind the Tribunal’s objectives calling for the need to conduct proceedings in a way that is fair, just, economical, informal, quick and proportionate to the importance and complexity of the matter.
The Tribunal has taken into account the matters that are likely to be considered as part of the substantive hearing of this application. It is a case about whether Comcare should have allowed more time to Mr Gadzikwa to make his request for reconsideration. This will involve a consideration of the range of factors identified by Comcare in its Statement of Issues, Facts and Contentions (Comcare’s Submissions) at paragraphs [4.2] and [4.3] arising from the decisions of Comcare v Willems (1996) 43 ALD 253 and Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344.
As explained to Mr Gadzikwa at the telephone directions hearing on 18 March 2020, this will not involve a full examination of Comcare’s decision to deny liability for his claimed injury under the SRC Act. The role of the Tribunal is to form a general impression as to Mr Gadzikwa’s prospects of success in a reconsideration of such a decision, if his request for reconsideration was allowed to be made out of time. It is not necessary to go to the depths of examination of the evidence that Mr Gadzikwa has in mind, in order for the Tribunal to form a general impression about the prospects of success.
The Tribunal is able to consider: the Original Determination which is included in the
T-Documents at T15; Comcare’s Submissions; and Mr Gadzikwa’s Submissions (which are extensive); to understand the position of the respective parties in relation to their contentions regarding the likely prospects of success if the Original Determination was reconsidered. The Tribunal may also consider any further oral submissions that may be made about this at the substantive hearing of the principal application (yet to be listed), part of which may involve Mr Gadzikwa indicating the sort of evidence he would be able to provide (that he has not already provided) if the reconsideration process was permitted to go ahead. However, as stressed at the telephone directions hearing, the proceeding of this application is not a forum for a final hearing of the issues that would arise for determination as part of the reconsideration. The Tribunal explained to Mr Gadzikwa that the proceeding before this Tribunal involved the “gateway” issue of whether he should be permitted to make such a request for reconsideration.
CONCLUSION
Returning to the summonses that have been requested, the Tribunal is not satisfied that they would assist in the review of the decision and determination of the principal application or that evidence expected to arise from such summonses could reasonably be expected to throw light on some of the issues in the substantive proceeding. There is already a wealth of evidence and submissions from both parties before this Tribunal to consider the various factors that should be taken into account in making an assessment as to whether Comcare should have granted Mr Gadzikwa’s application to allow him to make a request for reconsideration on 31 March 2018. As it stands, the current volume of documents before the Tribunal is disproportionately high given the complexity of the issues the Tribunal will be required to consider as part of this application. This application is akin to an extension of time application before the Tribunal and it is appropriate that, in the interests of all concerned, such applications are dealt with expeditiously, informally and keeping in proportion with the complexity of the issues involved. The Tribunal has considered Mr Gadzikwa’s request to issue the various summonses within this context.
The Tribunal considers that it would not throw light on the issues, in a manner that was required in order for the Tribunal to be in a position to determine the principal application, by summonsing:
(a)the delegate who made the Reviewable Decisions, as she has already stated in detail in her five page statement of reasons why she made the decision not to allow an extension of time in Mr Gadzikwa’s case. The present application is a de novo review meaning that it is the Tribunal’s task to make a fresh decision whether to allow an extension of time. This does not involve examining the delegate’s reasons in extensive detail, but instead it is appropriate for the Tribunal to move on from the delegate’s reasons to a process of forming its own view about whether or not to grant an extension of time and to form its own reasons for the ultimate decision it makes;
(b)the two Allianz representatives about the redacting of certain documents and how the Vault system used by Allianz operated. The Tribunal notes from a cursory overview of the 800 to 900 documents already produced in this application that they contain hardly any redacted documents. The only one able to be identified by the Tribunal from scanning through them, was an email extracted within Mr Gadzikwa’s Submissions on page 6 dated approximately six months before the Reviewable Decision. Apart from the fact that this is an email to which Mr Gadzikwa should be able to access from his own “sent” mailbox of his email account (as the author of that email), the Tribunal is unable to identify from the face of this email how it would throw light on the issues arising in the present application based on its un-redacted contents. Further, the Tribunal was not satisfied that it needed an explanation provided as to how Allianz’s Vault system worked in order to be in a position to determine the issues arising before it in the present application; and
(c)Dr Grant, a doctor who had examined Mr Gadzikwa, to explain how he had formed his medical opinions about him. The Tribunal considers that if the application for review before this Tribunal was a substantive review of the Original Determination to deny liability under s 14 of the SRC Act it may be appropriate for a summons to be issued in relation to a medical witness to give evidence at the hearing. However, this is not the case presently before this Tribunal. As explained above, the Tribunal is dealing with an application in relation to the delegate’s decision to refuse an extension of time to Mr Gadzikwa to request a reconsideration of the Original Determination. The Tribunal is only required to form a general impression as to Mr Gadzikwa’s prospects of success of this application. The Tribunal considers that this does not require an in-depth examination of the medical evidence and medical witnesses in the way proposed by Mr Gadzikwa. It would not assist the Tribunal or throw light on the issues in a way that is required in order for the Tribunal to consider the factors necessary to decide whether an extension of time should be granted to Mr Gadzikwa to request reconsideration of the Original Determination. The same reasoning applies in respect of the “consultant notes of the MLCOA consultants” which the Tribunal considers will not assist or throw light on the issues this Tribunal is required to determine as part of the present application before it.
INTERLOCUTORY DECISION
For all of these reasons, the Tribunal refuses to issue the summonses requested by the Applicant in respect of the four people and documents as identified in his submission dated 22 December 2019.
I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision of Member K. Parker
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Associate
Dated: 20 March 2020
Date of interlocutory hearing: 18 March 2020 Applicant: By telephone Advocate for the Respondent: Peta Heffernan Solicitors for the Respondent: Australian Government Solicitor