Husar and Comcare

Case [2024] ARTA 4

Husar and Comcare (Compensation) [2024] ARTA 4 (28 November 2024)

Applicant/s:  Emma Jane Husar

Respondent:  Comcare

Tribunal Number:                2024/5955

Tribunal:General Member J Papalia

Place:Perth

Date:28 November 2024

Decision:1. Pursuant to ss 78(1)(b) and 78(6) of the Administrative Review Tribunal Act 2024 (ART Act), the Tribunal permits the Respondent to inspect and copy the documents produced under summons by Ms D Murfett, Sexual Trauma Counselling Perth.

2. Pursuant to s 70(2) of the ART Act, the above material must not be disclosed to any person other than:

i. the parties, their representatives and any other person directly involved with the preparation and conduct of a party’s case; and

ii. to the extent necessary, any person whom a party approaches for the purpose of providing expert evidence in relation to the proceeding; and

iii. members and staff of the Tribunal, and any person performing services for the Tribunal, acting in the course of their duties. 

................[Sgd]........................................................

General Member J Papalia

Catchwords

PRACTICE AND PROCEDURE – Summons to produce documents – objection to inspection by issuing party – objection disallowed – implied undertaking – confidentiality orders

Legislation

Administrative Appeals Tribunal Act 1975 (Cth) (repealed)

Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth)

Administrative Review Tribunal Act 2024 (Cth)

Parliamentary Business Resources (Consequential and Transitional Provisions) Act 2017 (Cth)

Parliamentary Business Resources Act 2017 (Cth)

Parliamentary Entitlements Act 1990 (Cth) (repealed)

Parliamentary Injury Compensation Scheme Instrument 2016 (Cth)

Safety, Rehabilitation and Compensation Act 1988 (Cth).

Cases

Apache Northwest Pty Ltd v Western Power Corporation (1998) 19 WAR 350

Comcare v Maganga [2008] FCA 285; (2008) 47 AAR 487

Mobil Oil Australia Ltd v Guina Development Pty Ltd [1996] 2 VR 34

National Employers’ Mutual General Association Ltd v Waind & Anor (1978) 1 NSWLR 372

Otter Gold Mines Ltd v McDonald (1997) 76 FCR 467

Re Jelley and Ramsay Health Care Australia Pty Ltd [2024] AATA 3514

Re Nikaghanri and Minister for Immigration, Citizenship and Multicultural Affairs [2024] AATA 3514

Re Skewes v City of Rockingham [2014] WASAT 14

Santos Ltd v Pipelines Authority (SA) (No 2) (1996) 186 LSJS 257

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

Treasury Wine Estates Limited v Maurice Blackburn Pty Ltd [2020] FCAFC 226; (2020) 282 FCR 95

Secondary Materials

Administrative Review Tribunal (Common Procedures) Practice Direction 2024

Statement of Reasons

INTRODUCTION

  1. The Applicant is a former member of the House of Representatives for the Division of Lindsay in New South Wales. She seeks compensation for medical treatment in the form of exercise physiology and massage therapy to treat her mental and physical health conditions said to have arisen during, or to have been significantly contributed to by, her parliamentary career.[1] The Applicant objects to the Respondent inspecting clinical records produced to the Tribunal by her social worker under summons.[2] For the following reasons, the Tribunal has determined that permission should be granted to the Respondent to inspect that material,…

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AGLC
Husar and Comcare [2024] ARTA 4
Case
[2024] ARTA 4
Decision Date

CaseChat Overview and Summary

The Applicant, a former member of the House of Representatives for the Division of Lindsay in New South Wales, is pursuing compensation for medical treatment related to her mental and physical health conditions, which she claims arose during, or were significantly contributed to by, her parliamentary career. The Respondent, Comcare, is responsible for administering the Parliamentary Injury Compensation Scheme, under which the Applicant has an accepted claim. Comcare issued a summons to the Applicant's social worker to produce all relevant files, which the Applicant now seeks to object to.

The central legal issue in this case is whether the Respondent should be granted permission to inspect the clinical records produced by the Applicant's social worker under the summons, and if so, whether confidentiality orders can be imposed to protect the records from further disclosure. The Applicant argues that allowing Comcare to inspect the records would breach confidentiality obligations, while Comcare contends that inspection is necessary to assess the validity and extent of the Applicant's claim.

The Tribunal determined that Comcare should be granted permission to inspect the clinical records, subject to confidentiality orders. The Tribunal found that the implied obligation owed to the Tribunal in respect of documents produced under compulsion did not override the need for Comcare to inspect the records to properly assess the claim. However, to protect the Applicant's privacy, the Tribunal imposed confidentiality orders to limit the disclosure of the records and ensure they are not further disseminated. This balance maintains the integrity of the review process while safeguarding the Applicant's privacy rights.

In conclusion, the Tribunal granted Comcare permission to inspect the clinical records, subject to the imposed confidentiality orders. This decision ensures that the review process remains effective while also protecting the Applicant's privacy and confidentiality rights.

Orders

Orders of the court

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Background

Background to the litigation

The Applicant is a former member of the House of Representatives for the Division of Lindsay in New South Wales. She seeks compensation for medical treatment in the form of exercise physiology and massage therapy to treat her mental and physical health conditions said to have arisen during, or to have been significantly contributed to by, her parliamentary career.[1] The Applicant objects to the Respondent inspecting clinical records produced to the Tribunal by her social worker under summons.[2] For the following reasons, the Tribunal has determined that permission should be granted to the Respondent to inspect that material, subject to confidentiality orders made to protect the records from further disclosure notwithstanding the implied obligation owed to the Tribunal in respect to documents produced under compulsion. [1] T-documents, T1.1, p 4.[2] Applicant’s submissions in relation to the summons issued by the Respondent against Sexual Trauma Counselling Perth, dated 25 November 2024.BACKGROUND The Parliamentary Injury Compensation Scheme Instrument 2016 (Cth) (Parliamentary CompensationScheme) was made under s 9A of the Parliamentary Entitlements Act 1990 (Cth) (repealed). From 1 January 2018, it was taken to have been made under s 41 of the Parliamentary Business Resources Act 2017 (Cth) (PBR Act) and continues to apply to injuries that occur, and diseases that are suffered, in connection with a member’s parliamentary activities before and after the commencement of the PBR Act.[3] [3] Parliamentary Business Resources (Consequential and Transitional Provisions) Act 2017 (Cth), s 2 and Sch 3 Item 4 The Parliamentary Compensation Scheme makes provision for the liability of the Commonwealth to pay covered persons such amounts as are determined by the Respondent to be payable to the person under the Scheme.[4] [4] Parliamentary Compensation Scheme, s 19 The Applicant has an accepted claim for certain mental and physical health conditions deemed to have been sustained on 5 November 2018, when she was a member of the Parliament.[5] [5] T-Documents, T1.3, p 16. The Respondent accepted, under s 25 of the Parliamentary Compensation Scheme, that the Commonwealth was liable to pay compensation to the Applicant for the cost of medical treatment for those health conditions, namely Pilates sessions until 30 October 2024.[6] However, the delegate declined to accept liability in respect of the cost of exercise physiology and massage therapy.[7] [6] T-Documents, T1.3, p 19.[7] T-Documents, T1.3, p 19. The Applicant sought review of the delegate’s decision before the former Administrative Appeals Tribunal (AAT).[8] The AAT was abolished from 14 October 2024. This Tribunal must now finalise the review in a manner that it considers is efficient and fair.[9] [8] See Parliamentary Compensation Scheme, s 71. [9] Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth), ss 2, 4 and Sch 16 Item 24. On 24 October 2024, a Registrar issued a summons to produce documents to the Applicant’s mental health social worker/counsellor, Ms Murfett, under s 74(1)(b) of the Administrative Review Tribunal Act 2024 (Cth) (ART Act). The summons issued at the request of the Respondent and sought that the social worker produce all of her files in respect of the Applicant to the Tribunal.[10] [10] Summons to Produce Documents to Ms Murfett, Sexual Trauma Counselling Perth, dated 24 October 2024.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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