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

1. 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”.

2. 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.

3. 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.

4. 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.

5. 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

6. Following the commencement of this application in the Tribunal by the applicant, the respondent on 31 May 2023 served a Summons to Produce Documents issued by the Tribunal directed to “The Proper Officer” of “VicRoads Licence and Registration Service” (‘VicRoads’) (‘the summons’).

7. The summons sought production to the Tribunal by VicRoads of the following classes or categories of documents enumerated therein:

   All documents and files (including applications for licences, licence renewals, licence cancellations, driving offences records, records of vehicle ownership) relating to Judd Gaylard, date of birth: 12 August 1971

8. In compliance with the summons VicRoads has produced approximately 57 pages of documents.

9. The applicant’s lawyers by way of a letter of 30 June 2023 to the Tribunal objected to the documents produced by VicRoads in compliance with the summons served on it from being made available to the respondent on the grounds that the material sought pursuant to the summons was irrelevant and that the summons was otherwise “fishing”.

10. The respondent, in a written response to the Tribunal of 10 July 2023, contended that the documents produced by VicRoads in response to the summons were relevant. In support of its contention, the respondent referred to a report prepared by Consultant Psychiatrist

    
    

    Dr Kar on 9 December 2022, who had been retained by the respondent and had examined the applicant. In that report, Dr Kar had referred to a clinical note made by the applicant’s treating general practitioner on 10 January 2019 which recorded that the applicant was seeking a letter for the purposes of an application to a court for his licence restoration.[5] The reasons for the applicant losing his licence were unknown. Dr Kar wrote in his report that the applicant’s loss of a driving licence for unknown reasons suggested an abnormality of his behaviour. He further stated that if reasons were provided, he could comment further, and presumably express an opinion concerning this question.[6]

    [5] The report of Dr Kar of 9 December 2022 is document T289 of the T documents.

    [6] The relevant passage is located at page 15 of Dr Kar’s report.

11. It was further contended by the respondent in its written response of 10 July 2023 that the applicant in correspondence from his lawyers had very much disputed the question of the applicant’s loss of his licence and the weight that ought to attach to such question given the opinion expressed by Dr Kar in his report. Specifically, the respondent seized upon a passage in the letter of 25 January 2023 from the applicant’s lawyers seeking a reconsideration of the initial determination. It is for the purposes of these reasons appropriate to reproduce the paragraph relied upon by the respondent in that letter. It stated as follows:

    The opinion of Dr. Kar is that Mr. Gaylard has long standing anger issues which themselves display abnormal behaviour. One of the examples used by Dr. Kar to exemplify his previous abnormal behaviour is a reference to the loss of a driver license by Mr. Gaylard. Dr. Kar says in his report that he has no evidence as to why the licence was lost but concludes that it was lost due to abnormal behaviour. A driver’s license may be suspended for a variety of reasons and one of these reasons is that the license fee is not paid or that there is some technical defect in the application for a license. Without more it is impossible to say whether this is, in fact the reason for his license having been lost. To conclude that the loss of the license was due to some form of abnormal behaviour is to say the least of it, unwarranted. It is also unusual for a psychiatrist to describe the loss of a license for example, as a result of a parking infringement and then non-payment of fines is displaying abnormal behaviour. The simple loss of a licence, of itself speaks do nothing.

12. Therefore, the respondent contended that because Dr Kar considered it relevant to review the documents concerning the applicant’s loss of licence, together with the fact that his solicitors had disputed this question, such documents produced by VicRoads in response to the summons were relevant and therefore, it is entitled to inspect them.

13. The applicant’s lawyers then responded to the respondent’s contentions in an email to the Tribunal on 13 July 2023. The objection to the respondent inspecting the documents produced by VicRoads in response to the summons was maintained. In summary it was repeated that the loss of a licence, which was not disputed by the applicant, did not establish anything concerning his behaviour so as to enable Dr Kar to express the opinion he did. Put another way, it was contended that the applicant’s loss of a licence and circumstances that were unknown to Dr Kar could not enable him to reach conclusions concerning the applicant’s abnormality of behaviour.

14. The matter was then listed for a Directions Hearing by telephone before the Tribunal on 21 July 2023 when oral submissions were made on behalf of the applicant and the respondent.

    THE HEARING OF THE OBJECTION TO INSPECTION OF THE DOCUMENTS PRODUCED BY VICROAD IN RESPONSE TO THE SUMMONS

15. At the hearing before the Tribunal to determine the objection, the applicant’s submissions were repeated. It was also contended that the language used in the summons itself identifying the classes or categories of documents was simply too wide.

16. It was emphasised by counsel for the applicant that one should not lose sight of what the issues are to be determined by the Tribunal for the purposes of this application. In short, those issues are, in terms of relevancy, whether the applicant suffers a psychiatric condition. If so, does it fall within the liability provisions of the SRC Act?

17. The Applicant contended that the documents which were produced by VicRoads in response to the summons were not relevant in a critical sense as identified in the decision of Bennett J in Comcare v Maganga.[7]

    [7] (2008) 101 ALD 68 (‘Maganga’).

18. Particular emphasis was placed by the applicant on a contention that if the respondent were prevented from inspecting the documents produced by VicRoads it would not result in unfairness as it would have the right to cross-examine the applicant, and any witnesses he may call concerning the question of loss of licence. Therefore, it would not prevent effective cross-examination by the respondent. On that question also, it was contended that access to the documents concerned should not be permitted for credibility issues. There was no suggestion that there were for instance, inconsistent statements made by the applicant that were  in dispute in the application.

19. Another contention that was certainly emphasised by the applicant was that Dr Kar already had access to over 2000 documents which he had read and comprehended for the purposes of writing his report and expressing his opinion. Additionally, much emphasis was understandably placed on the fact that an examination of Dr Kar’s report revealed that he considered that the applicant has no psychiatric condition and certainly not one that was contributed to, to a substantial degree, by reason of his employment with the respondent. Therefore, no further documentation concerning the applicant’s loss of licence was necessary or affected the opinion that Dr Kar had already reached.

20. Finally, it was contended that the breadth of the classes or categories of documents enumerated in the summons were bordering on the oppressive. By way of example, in support of this contention it was asked how ownership of motor vehicles could in any possible way have anything to do with the issues to be determined by the Tribunal. It should be observed that this was a matter taken up by the Tribunal with counsel for the respondent. No serious resistance to the proposition was made.

21. The respondent on the other hand contended that the documents produced by VicRoads in response to the summons were relevant. Particular reference was made to the concept of relevancy as articulated in the decision of Beaumont J in Trade Practices Commission v Arnotts Limited (No 2).[8] The concept of “adjectival relevance” was referred to. That concept is whether the documents sought have an apparent relevance to the issues in the principal proceedings, i.e., adjectival, as distinct from substantive relevance. In that context it was submitted that the test of adjectival relevance is satisfied if the documents for which inspection is sought could possibly “throw light” on the main issues in the case. It was said that the adjectival relevance of the documents concerned arose because of the section of the opinion in Dr Kar’s report that has been previously referred to.

    [8] (1989) 88 ALR 90.

22. It was also emphasised in submissions on behalf of the respondent that, relying on the decision of Bennett J in Maganga, a party seeking to inspect documents does not need to establish that those documents will prove anything.[9]

    [9] Maganga (n 7) 76 [37].

23. Another contention advanced by the respondent was that it would be procedurally unfair for it to have to wait to cross-examine the applicant with respect to the subject matter of the documents produced by VicRoads in response to the summons during the hearing of the application. It was emphasised that the forensic purpose for which these documents were sought was not with respect to the applicant’s credibility. It did relate to a substantial issue to be determined by the Tribunal.

24. Reference was also made by the respondent to the provisions of s 2A of the Administrative Appeals Tribunal Act 1975 (Cth). It was contended that the opportunity for the respondent to inspect the documents would be efficient, economical and quick (thereby conforming with the Tribunal’s objective within the meaning of s 2A) given the opinions expressed by Dr Kar.

25. With respect to the applicant’s contention that Dr Kar had access to approximately 2000 pages of material before compiling his report, the respondent submitted that it did not prevent it from undertaking further steps as it sought to do by having access to the documents produced by VicRoads and otherwise was a question of weight.

26. 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

27. 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.

28. 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).

29. 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’).

30. 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.

31. 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.

32. It should be recalled that the clinical note recorded that when the applicant attended his treating general practitioner on that day he was described as agitated and impatient wanting a support letter for the courts. It is evident that that support letter was being sought by the applicant for the purposes of the restoration of his driver’s licence. Dr Kar in his report concerning the applicant’s loss of his driver’s licence expressed the opinion (without reaching a conclusion) that it suggested abnormalities in behaviour.

33. For these reasons, the Tribunal also considers that there is a legitimate forensic purpose for the respondent seeking to inspect the documents produced by VicRoads. The legitimate forensic purposes include seeking further details or reasons why the applicant had lost his driver’s licence. Such details or reasons if they emerge from the documents produced in response to the summons can be furnished by the respondent to Dr Kar for the purposes of seeking a supplementary opinion from him with respect to the question of abnormalities of behaviour that he referred to in his report.

34. It should be observed on this topic that in several parts of his report Dr Kar referred to the applicant as having abnormal personality or behaviour traits. It was a recurring aspect of his report. He expressed the opinion that the applicant had a pre-existing personality and psychiatric vulnerability and behavioural issues, with traits of impulsivity and anger.[14] Such traits were reflected in the applicant’s history including difficulties with “the law.” He explained that these personality characteristics are not mental illnesses. Additionally, he explained that those who have experienced “legal issues” may or may not meet the full criteria for the diagnosis of an antisocial personality disorder, a condition which is associated with anger and impulsive behaviour and also with substance or alcohol use. He also stated that he could comment on the topic more reliably if the complete details of the applicant’s past medical and legal history were furnished to him. Dr Kar concluded that the applicant had no condition that was contributed to a significant degree by his employment with the respondent. Therefore, the documents produced by VicRoads could possibly throw light on the issues in dispute between the parties on this question. That issue being whether or not the applicant suffers from a psychiatric condition, and if so, whether such condition was contributed to, to a significant degree, by reason of the applicant’s employment with the respondent. In particular the documents concerned may throw some light on whether or not the applicant has pre-existing personality abnormalities which are not a psychiatric condition which was contributed to, to a significant degree, by reason of the applicant’s employment with the respondent.

    [14] For the sake of completeness, it is worthwhile repeating what was recorded in Dr Kar’s report under the heading "SUMMARY OF OPINION”.

    ·‘I have not found Mr Gaylard to have any work-related psychiatric condition or injury.

    ·He appears to have some pre-existing personality abnormalities.

    ·He has significant anger. He has stress over his industrial and financial outcomes.

    ·He has DSM-V Other Problem Related to Employment. This is not a mental illness.

    ·In my opinion Mr Gaylard has no psychiatric impairment.

    ·In my opinion he will do best after resolution and commencing suitable work.’

1. The Tribunal also accepts the respondent’s contention that the letter from the applicant’s lawyers of 25 January 2023 has expressly tackled that aspect of Dr Kar’s report which stated that the applicant’s loss of his driver’s licence for unknown reasons suggests abnormalities of his behaviour. It is fair to say that the letter adopts fairly strong language in its criticism of Dr Kar’s conclusions. It goes so far as to say that such a conclusion to say the least was “unwarranted”. The issue is very much a live one between the parties. In this setting, access to the documents produced by VicRoads would also have a legitimate forensic purpose on the part of the respondent in rebutting this claim by the applicant’s lawyers as articulated in their letter of 25 January 2023.

2. As for the contention that Dr Kar has already had access to in excess of 2000 documents and reached a conclusion that the applicant’s employment with the respondent did not contribute to a significant degree to his condition, the Tribunal is not persuaded that the respondent should be prevented from exploring further the nature of the applicant’s condition and what may be the causes or reasons for it.

3. Apart from a legitimate forensic purpose arising from access to the documents produced by VicRoads being furnished to Dr Kar for the purposes of obtaining a supplementary report an additional purpose arises. As contended for by the respondent they could also be used for a legitimate forensic purpose in cross-examination of the applicant. That legitimate forensic purpose in cross-examination would be to explore the reasons why the applicant lost his driver’s licence in the circumstances that he did.

4. Finally, the Tribunal should also observe that it does not accept the applicant’s submission that the summons issued by the respondent to VicRoads is oppressive either as against him or VicRoads. As for VicRoads, it has produced the documents in response to the summons without objection, as it was entitled to do.

5. However, the Tribunal does conclude that insofar as the language adopted in the summons seeks access to records of vehicle ownership by the applicant it is too wide. Therefore, on those grounds any documents which only record vehicle ownership by the applicant will not be made available to the respondent for its inspection.

6. By reason of the foregoing matters the Tribunal will permit the respondent to inspect the documents produced by VicRoads in compliance with a summons directed to it, save for any documents which record vehicle ownership.

I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of R Cameron, Senior Member

.....................[SGD]............................

Associate

Dated: 8 August 2023

Date of directions hearing:

21 July 2023

Counsel for the Applicant:

Solicitors for the Applicant:

Mr Morry Nightingale

Arnold Thomas & Becker

Advocate for the Respondent:

Ms Anella Bortone

Solicitors for the Respondent:

Sparke Helmore