Jackson and Telstra Corporation Limited
[2008] AATA 105
•8 February 2008
Administrative Appeals Tribunal
ORDER AND REASONS FOR DECISION [2008] AATA 105
ADMINISTRATIVE APPEALS TRIBUNAL
GENERAL ADMINISTRATIVE DIVISION
)
) No: Q20060874; Q 200600898;
) 2007/0932; 2007/3507Re BRIAN JACKSON Applicant
And
TELSTRA CORPORATION LIMITED
Respondent
ORDER
Tribunal Deputy President P.E. Hack SC
Date8 February 2008
PlaceBrisbane
Order The Tribunal orders that the summons dated 21 January 2008 addressed to Mr Sol Trujillo, Chief Executive Officer, Telstra Corporation Limited be set aside.
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Deputy President
CATCHWORDS
PRACTICE & PROCEDURE – setting aside a summons – scope of summons – summons served on CEO of corporation – oppression – summons set aside
COMPENSATION – scope of Tribunal review
Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984] 3 NSWLR 98 Comcare v Lees (1999) 56 ALD 84 Commissioner for Railways v. Small (1938) 38 SR (NSW) 564
REASONS FOR DECISION
8 February 2008 Deputy President P.E. Hack SC
1.There are four matters in this Tribunal in which Mr Brian Jackson is the applicant and Telstra Corporation Limited is the respondent. All of them relate to claims for compensation made by Mr Jackson for injury and other losses said to arise out of his former employment with Telstra.
2.It is necessary only to notice the detail of one of the applications to resolve the interlocutory questions that I am asked to decide. That is application 2007/932 in which Mr Jackson seeks a review of the decision made on 20 December 2006 and affirmed on 19 March 2007 on re-consideration, to “disallow [Mr Jackson’s] claim for compensation for ‘post traumatic stress disorder’ and ‘depression’ conditions …”
3.I am asked to decide three preliminary issues in connection with the hearing of the matter which has been set down for 9 days commencing on 28 April 2008.
4.The first matter concerns a summons issued at the request of the solicitors for Mr Jackson and served by post on Mr Sol Trujillo, the Chief Executive Officer of Telstra. That summons required the production of
“All documents, personnel files, records, notes and emails relevant to the determination of Mr Brian Jackson’s claims for compensation.”
A two page letter from Mr Jackson’s solicitors and an 8 page statement of Mr Jackson was sent with the summons.
5.The solicitors acting for Telstra wrote to the Tribunal indicating their instructions “to oppose the summons”. Mr Clark, counsel who appeared for Telstra, formulated the matter as an application to set aside the summons. The course of argument identified three bases relied upon for that conclusion – that the summons was unnecessary, that it was served for an ulterior purpose and on the basis of oppression[1].
[1]The argument was not articulated in precisely these terms but this seems to be a fair summary of the argument as it developed.
6.The summons was unnecessary, so it was submitted, because Telstra’s insurers had already provided the documents and because Telstra had undertaken to produce Mr Jackson’s personnel files to the solicitors for Mr Jackson.
7.No authority was cited in support of the proposition that these matters, if true, warranted setting aside a summons. The authority usually referred to in considering questions of setting aside subpoenas is Botany Bay Instrumentation & Control Pty Ltd v Stewart[2]. In that case Powell J. examined in some detail the cases where a court will exercise a jurisdiction to set aside a subpoena. An absence of necessity is not one of the examples given by his Honour. It seems am improbable basis for doing so.
[2] [1984] 3 NSWLR 98 at 100.
8.I reject the first argument for setting aside the summons.
9.The second basis was that the summons had been issued for an ulterior purpose. The purpose was not identified with any precision but it was said that it was able to be inferred from the fact of service on Mr Trujillo and from the conduct of the proceedings to date by the solicitors for Mr Jackson. Service for an impermissible purpose is a recognised basis for setting aside a subpoena but I do not think the submission is made good on the facts. No material by way of affidavit was put before me from which this conclusion could be drawn, although a bundle of recent correspondence between the solicitors for the parties was provided.
10.It may be thought to be unusual to serve a summons upon the Chief Executive Officer of a corporation the size of Telstra and the correspondence from Mr Jackson’s solicitors has been written in a tone that is aggressive and argumentative. But these matters do not lead me to the conclusion that an impermissible purpose ought be found.
11.Thus I reject the second basis of the application.
12.The third basis is, I consider, made out. It will be recalled that the summons did not merely seek Mr Jackson’s personnel records and the like, it sought them only to the extent that they were “relevant to the determination of Mr Brian Jackson’s claims for compensation”. Self-evidently, not all personnel files would be relevant to the compensation claims, thus the recipient of the summons is required to know (a) what those claims are, and (b) to make judgments about the relationship between those claims and the files of the employee. That seems to me, especially where there is a dispute between the parties about the extent of the claims that are before the Tribunal, to be oppressive.
13.As long ago as 1938 Sir Frederick Jordan said:
“A stranger to the cause ought not to be required to go to trouble and perhaps to expense in ransacking his records and endeavouring to form a judgment as to whether any of his papers throw light on a dispute which is to be litigated upon issues of which he is presumably ignorant”.[3]
[3] Commissioner for Railways v.Small (1938)38 S.R. (N.S.W.) 564.
Here, Telstra is in reality a stranger to the proceedings even though it is nominally a party because the proceedings are being conducted by its insurer. But even if it were not regarded as being a stranger I consider it oppressive that it ought be required to form the judgments required to be made here by the form of words used in this summons.
14.In other circumstances I would consider whether the summons could be cured by blue-pencilling the words of qualification, however I do not propose to do so having regard to the undertaking, proffered by Mr Clark, that Telstra will make its personnel files on Mr Jackson available to his solicitors.
15.In the result, on this aspect of the matter I would order that the summons dated 21 January 2008 addressed to Mr Sol Trijillo, Chief Executive Officer, Telstra Corporation Limited be set aside.
16.The next aspect concerns the scope of the review available in application 2007/0932. To understand the issue it is helpful to set out the general scheme of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”). It establishes a scheme for the payment of compensation to Commonwealth employees, including members of the Defence Force. The general entitlement to compensation is provided for by s 14 of the SRC Act. Comcare or the licensed corporation is liable to pay compensation, in accordance with the SRC Act, in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment. Divisions 2, 3, and 4 within Part II make provision for the amount of compensation liable to be paid for different types of injuries: “Injuries resulting in death” (Div. 2), “Injuries resulting in incapacity for work” (Div. 3), and “Injuries resulting in impairment” (Div 4).
17.There are thus two steps in the process of determining entitlement to compensation – a determination of whether there is liability under s 14 of the SRC Act and, if so, the extent and amount of compensation.
18.The case for Mr Jackson is that the conditions of post traumatic stress disorder and depression are injuries that arose out of or in the course of his employment, and that Telstra is, by virtue of s 14, liable to pay compensation in accordance with the Act. Two questions are posed by that – does Mr Jackson have those conditions and, if so, do they arise out of or in the course of his employment with Telstra. If both of those questions are answered favourably to Mr Jackson he seeks compensation for incapacity and for permanent impairment and he contends that this Tribunal, on the hearing of his application, ought to determine those issues.
19.The argument for Telstra is that favourable answers to those questions would result in the Tribunal remitting the matter to Telstra to determine Mr Taylor’s entitlement to compensation for incapacity and permanent impairment rather than this Tribunal making those determinations. That is so, it is said, because Telstra has never considered the issues and made determinations which have been re-considered.
20.The issue of principle that underlies this dispute is determined by the decision of the Full Court of the Federal Court in Comcare v Lees[4], a decision to which neither party made reference in the course of the argument. The factual situation of Mr O’Donohue, the applicant in the Tribunal in the second of the cases considered by the Court, is identical to that of Mr Jackson. That situation, and the way in which the Full Court dealt with it, appears from the following passage[5]:
“[52] On 15 December 1995 Mr. O'Donohue completed the standard “Claim for Rehabilitation and Compensation” form. On 25 October 1996 an authorised officer of Comcare disallowed Mr. O'Donohue's claim on the basis that he had not suffered an injury within the meaning of the Act. By so doing, the officer is to be understood as having made a determination under s 14 of the Act that Comcare was not liable to pay compensation to Mr. O'Donohue in accordance with the Act because Mr. O'Donohue had not suffered an injury within the meaning of s 14: ie, as defined in s 4.
[53] Mr. O'Donohue received a notice in writing setting out the terms of the determination and the reasons for it: s 61. He requested reconsideration of the determination: s 62(2). An independent review officer reconsidered the determination and was “satisfied that the decision to deny liability … [was] correct”. He affirmed the determination. The decision of the independent review officer was a reviewable decision within the meaning of the Act. Mr. O'Donohue was served with a notice in writing setting out the terms of the decision, the reasons for the decision and a statement alerting him to his right to apply to the AAT “for review of the decision to which the notice relates”: s 63.
[54] The only application which s 64 of the Act entitled Mr. O'Donohue to make to the AAT was an application for review of the reviewable decision made by the independent review officer. The terms of that decision are revealed by the notice in writing served on Mr. O'Donohue. No suggestion has been made that the notice in writing misrepresents the actual determination made by the independent review officer.
[55] For the AAT to reach a decision as to Mr. O'Donohue's entitlement, if any, to receive compensation under s 24 of the Act in respect of a permanent impairment it would have to become involved in a process extending beyond review of the reviewable decision made under s 62 of the Act. It would require the AAT to consider issues not determined at either the first or the second tier of the decision-making process established by the Act.
[56] In view of the structured decision-making process established by the Act, and the plain language of s 64 of the Act, the powers of the AAT under s 64 do not, in our view, on an application to review a decision under s 14 of the Act, extend to allowing it to reach a decision as to Mr. O'Donohue's entitlement, if any, to receive compensation under s 24 of the Act. In this regard it is immaterial in our view, whether the reviewable decision was one which determined that Comcare was liable to pay compensation in respect of an injury or one which determined that Comcare had no such liability.”
[4] (1999) 56 ALD 84.
[5] (1999) 56 ALD 84 at 95-6 [52-56].
21.Similarly, I conclude that the powers of the Tribunal do not extend to considering Mr Jackson’s entitlement to compensation for incapacity and permanent impairment for post traumatic stress disorder and depression. All that is before the Tribunal is the decision denying liability under s 14 of the SRC Act.
22.The third aspect of the present dispute concerns a requirement by Telstra that Mr Jackson attend upon a psychiatrist, Dr Redden, for the purpose of examination. That requirement has been conveyed by a notice expressed to have been given under s 57 of the SRC Act. That section authorises a relevant authority such as Telstra to require an employee “to undergo an examination by one legally qualified medical practitioner” nominated by it. Failure by the employee, without reasonable excuse, to attend the examination results in the suspension of the employee’s entitlement to continue any proceedings for compensation under the SRC Act. The time for the appointment has not yet arrived but Mr Clark submits that the correspondence evinces a tone of intended refusal. The tone of the correspondence is, in my view, unnecessarily argumentative, and frankly unhelpfully so, but I regard it as premature at this juncture to make any determination about a failure that has not yet occurred and may never occur.
23.If Mr Jackson does not attend the appointment and Telstra takes the view that he has no reasonable excuse for doing so it may bring an application in which the question can be determined. That will provide an opportunity for Mr Wright, the solicitor for Mr Taylor, to agitate the issues of lawfulness of the notice that he seems to wish to raise.
24.In the circumstances I do not propose to make any order or direction in relation to this aspect of the matter.
I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC
Signed:
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Jacqueline Woods, AssociateDate of Hearing 7 February 2008
Date of Decision 8 February 2008
Solicitors for applicant Kerin & Co
Counsel for the respondent Mr C Clark
Solicitors for the Respondent Sparke Helmore
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