Gadzikwa and Comcare (Compensation) - [2020] AATA 631

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.
....[sgd]....................................................................
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 1995
Safety, 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gadzikwa and Comcare (Compensation)

Details

AGLC: Gadzikwa and Comcare (Compensation) [2020] AATA 631
Case: [2020] AATA 631
Decision Date: 18 March 2020

CaseChat Overview and Summary

This matter concerned an application by Mr Gadzikwa to the Administrative Appeals Tribunal (AAT) for the issuing of summonses for identified individuals to give evidence and for the production of specified documents. Comcare opposed this request. The principal application before the AAT involved a review of Comcare's decision to refuse Mr Gadzikwa an extension of time to request reconsideration of its earlier decision to deny liability under section 14 of the *Safety, Rehabilitation and Compensation Act 1988* (Cth) for a claimed injury.

The AAT was required to determine whether the evidence sought by Mr Gadzikwa through the proposed summonses would assist in the review of Comcare's decision to refuse the extension of time and in the determination of the principal application. The court also considered the scope of its discretion under section 40A of the *Administrative Appeals Tribunal Act 1975* (Cth) to refuse such a request.

The Tribunal reasoned that its power to issue summonses under section 40A of the AAT Act was discretionary, and it could refuse a request if the evidence sought would not assist in the review of the decision or the determination of the principal application. The Tribunal must be satisfied that the evidence could reasonably be expected to illuminate issues in the substantive proceeding, and mere speculation as to relevance was insufficient. In this instance, the Tribunal considered that the principal application concerned the "gateway" issue of whether Mr Gadzikwa should be permitted to make a late request for reconsideration, not a full examination of the original liability decision. The Tribunal concluded that it could form a general impression of Mr Gadzikwa's prospects of success in a reconsideration by examining the existing documentation, including the original determination, Comcare's submissions, and Mr Gadzikwa's extensive submissions, without requiring the additional evidence sought by the summonses. The Tribunal also noted the need to balance the administration of justice with the objectives of conducting proceedings in a manner that is fair, just, economical, informal, quick, and proportionate.

The Tribunal refused Mr Gadzikwa's request for the issuing of summonses.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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