Gaylard and John Holland Pty Ltd (Compensation) - [2023] AATA 2424

Gaylard and John Holland Pty Ltd (Compensation) [2023] AATA 2424 (8 August 2023)
Division:GENERAL DIVISION
File Number: 2023/1292
Re:Judd Gaylard
APPLICANT

AndJohn Holland Pty Ltd
RESPONDENT

DECISION
Tribunal:R Cameron, Senior Member
Date:8 August 2023
Place:Melbourne

The Tribunal orders that the respondent have leave to inspect the documents produced by VicRoads in compliance with a summons directed to it, save for any documents which record vehicle ownership.
................................[SGD]........................................
R Cameron, Senior Member
CATCHWORDS
PRACTICE AND PROCEDURE – objection by the applicant to the respondent’s inspection of material produced under summons – relevance of material produced under summons to the issues raised by the reviewable decision – licence and traffic records – objection disallowed
LEGISLATION
Administrative Appeals Tribunal Act 1975
Safety, Rehabilitation and Compensation Act 1988
CASES
Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1955) 72 WN (NSW) 250
Comcare v Maganga (2008) 101 ALD 68
Cosco Holdings Pty Ltd v Commissioner for Taxation and Anor (1997) 37 ATR 432
Fried v National Australia Bank (2000) 175 ALR 194
Trade Practices Commission v Arnotts Limited (No 2) (1989) 88 ALR 90
WA Pynes Pty Ltd v Bannerman (1980) 41 FLR 175
REASONS FOR DECISION
R Cameron, Senior Member
8 August 2023
INTRODUCTION

The applicant has made a claim against the respondent pursuant to the Safety, Rehabilitation and Compensation Act 1988 (‘SRC Act’). The claim was initiated on

16 August 2022, in which the applicant sought compensation for an “Injury/Illness” he described as the “Diagnosed condition” of “depression, anxiety, harassment, workplace bullying, mental health.”[1]
[1] The compensation claim form completed by the applicant is document T58 of the T documents. The claimed conditions identified in the claim form are hereinafter referred to as “the claimed conditions”.
In response to the claim made by the applicant, an initial determination was made by a Claims Manager of the respondent on 20 January 2023 (‘the initial determination’). The Claims Manger found that the applicant was not entitled to compensation under s 14 of the SRC Act for the claimed conditions.[2]
[2] The initial determination is document T291 of the T documents.
On 25 January 2023 the applicant’s lawyers sought a reconsideration of the initial determination under the applicable provisions of the SRC Act.[3]
[3] The request for a reconsideration of the initial determination is document T295 of the T documents.
A reconsideration of the initial determination was undertaken on 23 February 2023 by an officer of the respondent described as, “Lead Senior Legal Counsel, Insurance”. That officer conducted a reconsideration of the initial determination under the provisions of s 62 of the SRC Act and decided to affirm the initial determination (‘the reviewable decision’).[4]
[4] The reviewable decision is document T301 of the T documents.
By an application lodged in this Tribunal on 27 February 2023 the applicant seeks a review of the reviewable decision.
THE SUMMONS TO VICROADS AND THE APPLICANT’S OBJECTION TO THE RESPONDENT INSEPCTING THE DOCUMENTS PRODUCED BY IT

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 Gaylard and John Holland Pty Ltd (Compensation)

Details

AGLC: Gaylard and John Holland Pty Ltd (Compensation) [2023] AATA 2424
Case: [2023] AATA 2424
Decision Date: 8 August 2023

CaseChat Overview and Summary

This matter concerned an objection by the applicant, Gaylard, to the respondent, John Holland Pty Ltd, inspecting material produced by VicRoads under a summons. The dispute centred on the relevance of the documents sought by the respondent to the issues raised by the reviewable decision. The case was heard by Senior Member R Cameron.

The primary legal issue before the court was whether the material produced by VicRoads pursuant to the summons was relevant for a legitimate forensic purpose that would facilitate the conduct of the proceeding. This required the court to consider the concept of adjectival relevance, determining if the documents sought could possibly throw light on the issues to be determined in the principal proceedings, and whether the respondent's actions constituted an oppressive or speculative "fishing expedition."

The court applied well-settled principles regarding the issuance of summonses and the inspection of documents. It affirmed that the test for relevance is whether the material has an apparent relevance to the issues in the proceedings, meaning it could reasonably be expected to illuminate some of those issues. The court distinguished this from a "fishing expedition," which involves seeking documents without any basis to discover if a case exists. In this instance, the court found that the summons was neither a fishing expedition nor speculative, particularly given that a clinical note from the applicant's treating general practitioner had already been made available for assessment purposes.

The objection by the applicant to the respondent's inspection of the material produced under summons was disallowed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Finally, the respondent also submitted that by issuing the summons to VicRoads and seeking the right to inspect the documents produced in response to that summons it was not acting in a manner that was oppressive to the respondent or for that matter VicRoads.CONSIDERATION In the several authorities that were referred to in submissions, the applicable principles with respect to the ability to issue a summons to a party and inspect documents produced in response to such a summons are well-settled. It is useful to briefly summarise some of those principles insofar as they apply to this application. The general test in an application such as this is whether the documents produced pursuant to a summons are for a legitimate forensic purpose which must be identifiable and likely to facilitate the conduct of the proceeding.[10] This raises the question of adjectival relevance, which requires the consideration of whether the material sought has an apparent relevance to the issues in the principal proceedings (adjectival relevance, as distinct from substantive relevance). This is established if the documentation concerned could “possibly throw light” on the issues to be determined in the application. The use of the word “possibly” is not adopted in a speculative sense but, whether the documents could reasonably be expected to throw light on some of the issues in the principal proceedings.[11][10] Fried v National Australia Bank (2000) 175 ALR 194, 200 [29] (Weinberg J) and Trade Practices Commission v Arnotts Ltd(No 2) (1989) 88 ALR 90, 102 (Beaumont J).[11] Cosco Holdings Pty Ltd v Commissioner for Taxation and Anor (1997) 37 ATR 432 (Spender J). A classic definition of the term “fishing” is found in the decision of Owen J in Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd:A “fishing expedition”, in the sense in which the phrase has been used in the law, means as I understand it, that a person who has no evidence that a fish of a particular kind are in a pool desires to be at liberty to drag it for the purpose of finding out whether there are any there or not.[12][12] (1955) 72 WN (NSW) 250, 254 (‘Associated Dominions’). Several decisions of intermediate appellate courts in more recent years have held that the concept of a “fishing summons” or a “fishing expedition” as articulated by Owen J in Associated Dominions, is not as strictly applied as it once was. Brennan J (with whom Bowen CJ agreed) in WA Pynes Pty Ltd v Bannerman considered that a discovery order would be permitted if sufficient were shown to ground a suspicion that the applicant has a good case, proof of which is likely to be aided by discovery.[13][13] (1980) 41 FLR 175, 181. The Tribunal considers that the summons issued by the respondent and directed to VicRoads is neither a “fishing expedition”, nor speculative. This is because a clinical note of 10 January 2019 made by the applicant’s treating general practitioner has seen the light of day and was made available to Dr Kar for the purposes of his assessment of the applicant and subsequent preparation of the report.