Head and Telstra Corporation Limited (Compensation)

[2021] AATA 523

Head and Telstra Corporation Limited (Compensation) [2021] AATA 523 (17 March 2021)

Division:GENERAL DIVISION

File Number(s):      2020/4671; 2020/4673

Re:Allan Head

APPLICANT

AndTelstra Corporation Limited

RESPONDENT

DECISION

Tribunal:The Hon. John Pascoe AC CVO, Deputy President

Date:17 March 2021

Place:Sydney

In accordance with section 40A(1) of the Administrative Appeals Tribunal Act 1975 (Cth), the summons issued on Acting Professor Shumack, returnable on 3 March 2021, not be set aside.

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

The Hon. John Pascoe AC CVO, Deputy President

CATCHWORDS

PRACTICE AND PROCEDURE – summons – objection to summons – whether documents sought are relevant to the issues to be decided – summons to be complied with

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 24, 27

Administrative Appeals Tribunal Act 1975 (Cth) s 40A

ADMINISTRATIVE APPEALS TRIBUNAL ACT 1975 (CTH) SS 40A, 40BCASES

Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984] 3 NSWLR 98

Trade Practices Commission v Arnotts Limited [1989] FCA 248
Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250

Telstra Corporation Limited v Hannaford [2006] FCAFC 87; (2006) 151 FCR 253

REASONS FOR DECISION

The Hon. John Pascoe AC CVO, Deputy President

17 March 2021

INTRODUCTION

1. In this matter, the applicant seeks to set aside a summons directed to Acting Professor Stephen Shumack in relation to production of documents. The only issue before the Tribunal is whether it should exercise its discretion to set aside the summons to produce documents issued on 4 February 2021 and addressed to Acting Professor Shumack.

2. The summons in question which the respondent issued is as follows:

   All medical records, reports, letters of referral, specialists' reports, social workers' reports, rehabilitation reports, pathology reports, all reports and images arising from or otherwise relating to any diagnostic test whatsoever, including but not limited to x-ray, CT and/or MRI images taken for any purpose including but not limited to investigative, comparative and secondary tests, speech therapists' reports, occupational therapists' reports, clinical notes, correspondence and treatment cards relating to Allan Head…

3. The applicant claimed that the summons request constitutes an abuse of process and was aimed at delaying the proceedings. In an email dated 12 February 2021, the applicant said that they were not “concerned about any documents, reports, evidence, or otherwise which may come from this summons” but rather were concerned that “this is merely another delaying tactic”. At the hearing, the applicant who was represented by his son, referred to their concern and frustration at the length of time the proceedings had been on foot.

4. The applicant also had some concerns about Acting Professor Shumack’s independence and pointed out that in previous proceedings the applicant had relied solely on the evidence of the reports of Dr Lobel, who is the respondent’s expert witness briefed to establish the respondent’s liability in the current matter.

5. A brief history of the matter was set out in the respondent’s submissions as follows.

6. On 21 April 2020, it was determined that the respondent was liable to pay compensation for permanent impairment and non-economic loss (NEL) pursuant to sections 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) in relation to the non-melanoma skin disorders for 10% whole person impairment (WPI) assessed under Table 4.1, skin disorders. NEL scores were accepted as claimed, except the score of one for Other loss was discounted. 

7. On 21 April 2020, it was determined that the respondent was liable to pay compensation for permanent impairment pursuant to section 24 of the SRC Act in respect of the effects of ‘metastatic malignant melanoma’ of a combined 23% WPI composed of 20% WPI under Table 5.1 and 4% under Table 9.11.1a.

8. On 14 May 2020, it was determined that the respondent was liable to pay compensation for NEL pursuant to section 27 of the SRC Act in respect of ‘metastatic malignant melanoma’. NEL scores of 3, 1, 0, 1, 3, 0, 0.

9. Following requests for reconsideration dated 21 May 2020, two reviewable decisions were issued. 

10. By Reviewable decision dated 18 June 2020, the determination dated 21 April 2020 in relation to the non-melanoma skin disorders was varied in respect of the assessment of NEL under section 27 of the SRC Act only (specifically the score for “reduction in life”). A total of $32,039.34 was awarded.

11. By Reviewable decision dated 18 June 2020, the determination dated 21 April 2020 was affirmed in relation to the assessment of whole person impairment in respect of ‘metastatic malignant melanoma’ and the determination dated 14 May 2020 was varied in respect of the assessment of NEL under section 27 of the SRC Act for suffering only. A total of $64,440.01 was awarded.

12. An application for review of decision to the Administrative Appeals Tribunal (the Tribunal) was lodged by the applicant on 3 August 2020 to dispute the impairment assessments awarded.

    THE LAW

13. The power of the Tribunal in relation to issuing summons is set out in sections 40A(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) (the Act). The President or an authorised member may refuse a request to summon a person pursuant to section 40A(2) of the Act.

14. The law in relation to the issuing and setting aside of summons is relatively well settled. In particular, Powell J in Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984] 3 NSWLR 98 noted that a subpoena will be set aside in a variety of cases, such as:

    1.        unless the subpoena was issued for the purpose of a pending trial, hearing or application ...

    2.        where to require the attendance of a witness would be oppressive ...

    3.        where the subpoena had not been issued bona fide for the purpose of obtaining relevant evidence and the witness to whom the subpoena had been addressed was unable to give relevant evidence ...

    4.        where the subpoena has been used for the purpose of obtaining discovery or further discovery against a party ...

    5.        where the subpoena has been used for the purpose of obtaining discovery against a third party…

    6.        where to require a party to comply with a subpoena to produce documents would be oppressive ...

    7.        where the subpoena has been issued for a purpose which is impermissible, as, for example, ‘fishing’ ...”.

    DISCUSSION

15. Clearly, the issuing of a summons would be an abuse of process if it were not used for a legitimate forensic purpose (Trade Practices Commission v Arnotts Limited [1989] FCA 248). In the current proceedings, it is clear on the face of the summons and from the submissions of both parties that the summons covers material prepared by Acting Professor Shumack in relation to the applicant’s condition which gave rise to the proceedings at issue. Accordingly, Acting Professor Shumack’s report might properly throw some light on the issues in the matters to be determined in the principle proceedings before the Tribunal.

16. In my view, the summons could not be characterised as a “fishing expedition” which was defined by Owen J in Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250 as meaning “that a person who has no evidence that fish of a particular kind are in the pool desires to be a liberty to drag it for the purposes of finding out whether there are any there or not”.

17. The applicant says that the documents sought are not relevant in the circumstances. However, I am satisfied that the documents are relevant as they relate to the proceedings in a way that means there is a real possibility that they could assist in the resolution of the issues in question. The parties in a matter have a right to access relevant information in order to build their case. For example, documents may be of assistance in cross-examination of a witness.

18. In Telstra Corporation Limited v Hannaford [2006] FCAFC 87; (2006) 151 FCR 253, Logan J conducted a review of early authorities and along with Heerey and Dowsett JJ came to the following conclusions at [59] which are relevant:

    I would therefore conclude, contrary to the decision of the primary judge, that the AAT below was duly empowered, upon the true construction of the SRC Act and in the events which happened:

    (i) to make findings of fact that effectively undercut the necessary findings of fact made in the initial or original decision of Telstra under s14 of the SRC Act to accept liability in respect of Mr Hannaford’s claim for compensation; and

    (ii) to do so in circumstances where the AAT was undertaking its review of whether any compensation should be payable or further payable, for instances under ss16 and 19 of the SRC Act, and/or under ss21 and 27 of the SRC Act; and

    (iii)       to do so in the circumstances further where Telstra’s s14 decision remained in force to the extent that it had not been actually reversed, and had not been the subject of any adverse review per se by the AAT.

19. It is clear from the history of these proceedings that Acting Professor Shumack, who is a consulting expert dermatologist who provided a report about the applicant’s condition in relation to these proceedings, has information which is properly relevant to the primary issues to be considered by the Tribunal. Should Acting Professor Shumack’s evidence be relied on at the hearing, it would be of beneficial to the Tribunal and to the parties to ensure that the entirety of Acting Professor Shumack’s opinion is available, including the material with which he was briefed prior to preparing his report.  It is appropriate for the respondent to be satisified that all of Acting Professor Shumack’s relevant reports, background notes, amongst other things, are available to the parties and to the Tribunal.

20. Ultimately, Acting Professor Shumack’s reports may be found to have little relevance or ultimately accorded little weight by the Tribunal. However, this does not mean that it is not a legitimate forensic purpose to seek the information. The fact that the applicant is of the view that Acting Professor Shumack’s review may be not very good, biased or contrary to the views of other medical experts in this matter is not a proper reason to set aside the summons, but are issues that go to the weight the Tribunal may accord to this evidence.

    DECISION

21. In accordance with section 40A(1) of the Act, I am of the opinion that the correct or preferable decision is the summons issued on Acting Professor Shumack, returnable on 3 March 2021, not be set aside.

I certify that the preceding 21 (twenty-one) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President

..................................[sgd]......................................

Associate

Dated: 17 March 2021

Dates of hearing:	8 March 2021
Applicant’s advocate:	Mr M. Head, Applicant’s son
Respondent’s representative:	Ms E. O'Connor, Sparke Helmore Lawyers