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

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.
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…
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.
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.
A brief history of the matter was set out in the respondent’s submissions as follows.
On 21 April 2020, it was determined that the respondent…

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.

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Details

Case: [2021] AATA 523
Decision Date: 17 March 2021

CaseChat Overview and Summary

The Deputy President, John Pascoe AC CVO, considered an objection to a summons issued in proceedings between Head and Telstra Corporation Limited concerning compensation. The applicant sought to set aside a summons issued to Acting Professor Shumack.

The central legal issue before the Tribunal was whether the documents sought by the summons were relevant to the issues to be decided in the compensation proceedings, and consequently, whether the summons should be complied with or set aside.

The Deputy President reasoned that the potential relevance or weight to be accorded to Acting Professor Shumack’s reports by the Tribunal was not a proper basis for setting aside the summons. The applicant's belief that the review might be of poor quality, biased, or contrary to other expert opinions were matters that would affect the weight of the evidence, not its discoverability. Therefore, the Tribunal determined that it was a legitimate forensic purpose to seek the information.

In accordance with section 40A(1) of the Act, the Deputy President ordered that the summons issued to Acting Professor Shumack, returnable on 3 March 2021, not be set aside.

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

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 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.

Ratio Decidendi

Legal Principle Established

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