Karunaratne and Comcare (Compensation) - [2023] AATA 365

Karunaratne and Comcare (Compensation) [2023] AATA 365 (9 March 2023)
Division:GENERAL DIVISION
File Number(s): 2021/8106
2022/6717

Re:Chinthaka Karunaratne
APPLICANT

ComcareAnd
RESPONDENT

Decision
Tribunal:Mr S. Webb, Member
Date:9 March 2023
Place:Canberra

Objections to the summons issued by the Tribunal on 25 August 2022 in respect of the Department of Agriculture, Water and the Environment are upheld.
Within 7 days, Mr Karunaratne may file revised terms to narrow the scope of documents sought consistent with these reasons. Should revised terms not be filed, the summons will be vacated.
.................[SGD]............................
Mr S. Webb, Member
Catchwords
PRACTICE AND PROCEDURE – compensation claims – psychiatric ailment – allegations of bullying in the workplace – summons requiring production of Departmental records –objection to summons – relevant principles – extent of legitimate forensic purpose – no abuse of process – summons oppressive in part – scope of summons too broad – possible to narrow scope – objection upheld – order made
Legislation
Administrative Appeals Tribunal Act 1975 ss 2A, 35, 37, 38AA, 39, 40A, 40B, 43
Evidence Act 1995
Safety, Rehabilitation and Compensation Act 1988 ss 2A, 4, 5A, 5B, 14
Cases
Alister v R (1984) 154 CLR 404 and 414
Brawn v The King [2022] SASCA 96
BrisConnections Finance Pty Ltd (Receiver and Manager Appointed) v Arup Pty Ltd [2016] FCA 906
Comcare v Maganga [2008] FCA 285
Commissioner of Police v Fantakis [2022] NSWCCA 94
Commissioner for Railways v Small (1938) 38 SR (NSW) 564
Re Don [2006] NSWSC 1125
National Employers’ Mutual General Assn Ltd v Waind [1978] 1 NSWLR 372
Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145
Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corporation Ltd [1984] 1 NSWLR 710
Trade Practices Commission v Arnotts Pty Ltd & Ors [1989] FCA 248
Wong v Sklavos [2014] FCAFC 120
REASONS FOR DECISION
Mr S. Webb, Member
9 March 2023

Chinthaka Karunaratne lodged two claims for compensation in respect of alleged injuries during his employment by the former Department of Agriculture, Water and the Environment (presently the Department of Agriculture, Fisheries and Forestry) (Department). His claims were refused by Comcare by primary determination and on reconsideration. Mr Karunaratne applied to the Tribunal for review of these decisions.
In the course of the proceedings, an issue arose in respect of a summons requiring production of documents by the Department. It is the Department’s objection, alone, that is the subject of this interlocutory decision.
Facts
Mr Karunaratne commenced employment by the Department in 1998.
On 20 April 2021, Mr Karunaratne lodged a claim for compensation which included the following information:

What is the condition that you are claiming for?

Insomnia, headache, anxious, nausea, feeling scared to communicate with his manager, feel unsafe at work place for the last 12 months. Symptoms aggravated within past 3-4 months

…

What happened and how were you injured?

Continuous bullying and harassment caused by the Manager by sending inappropriate emails. The…

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: [2023] AATA 365
Decision Date: 9 March 2023

CaseChat Overview and Summary

This matter concerned an objection by the Department to a summons issued in the course of proceedings brought by Mr Karunaratne against Comcare. Mr Karunaratne had lodged a claim for compensation for a psychiatric ailment, alleging bullying in the workplace. The summons required the Department to produce various records relating to Mr Karunaratne's employment and the issues raised in his claim.

The central legal issues before the Tribunal were whether the summons was valid and whether it was oppressive or an abuse of process. Specifically, the Tribunal had to determine the principles governing the production of documents in compensation claims, the extent of a "legitimate forensic purpose," and the criteria for assessing whether a summons is overly broad or unduly burdensome.

The Tribunal distilled several principles from relevant authorities. It held that documents are material if they are relevant, possibly relevant, or might raise a new issue or provide a lead to evidence. Production is required where a legitimate forensic purpose is demonstrated, which includes informing lines of inquiry, identifying witnesses, or assisting in framing questions. A "fishing expedition" without a reasonable basis is not a legitimate forensic purpose. However, seeking apparently relevant documents for cross-examination, even without knowing if they will assist, is not considered fishing. The Tribunal also noted that a summons may be set aside if it is oppressive, considering its terms, the recipient's connection to the issues, the burden of compliance, and the relevance of the documents sought.

The Tribunal found that while the summons had a legitimate forensic purpose, its scope was too broad and therefore oppressive in part. It concluded that it was possible to narrow the scope of the summons. Accordingly, the objection was upheld, and Mr Karunaratne was given seven days to file revised terms for the summons. If revised terms were not filed within that period, the summons would be vacated.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

In the course of the proceedings, an issue arose in respect of a summons requiring production of documents by the Department. It is the Department’s objection, alone, that is the subject of this interlocutory decision.Facts Mr Karunaratne commenced employment by the Department in 1998. On 20 April 2021, Mr Karunaratne lodged a claim for compensation which included the following information: Later that day, Mr Karunaratne amended the date he first noticed symptoms of the claimed injury to September 2019.[2][2] T20, folio 406. On 23 April 2021, Comcare requested information from the Department and issued a notice under s 71 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act):Information to be included in the statement of factsWhen making a determination on a claim, Comcare only has regard for information that is factual and relevant to the cause of the claimed condition. An employer statement of facts must take this into consideration and include: • A chronological timeline, with exact dates where possible, relevant to all events, issues or complaints listed in Dr Karunaratne's statement as contributing to his condition.• A list of any policies or procedures, whether formal or informal, used in relation to the information detailed in the timeline.• A summary of Dr Karunaratne’s leave and attendance records leading up to the claimed date of injury and up to the lodgement of his claim.• Any other employment or non-employment related factors that may have impacted on Dr Karunaratne's condition (e.g. any declarations of previous conditions in his employment records).Notice under Section 71 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act)Under Section 71(1) of the SRC Act, I also require the employer to supply the following documents in response to Dr Karunaratne's claim for compensation:• any electronic data such as emails or meeting minutes and reports concerning the issues or circumstances which have been raised by Dr Karunaratne in his submission;• copies of any policies, guidelines, processes or procedures followed in relation to any of the work factors and incidents which have been raised by Dr Karunaratne in his submission;• copies of any Fitness for Duty (FFD/FFCD) or Section 36 reports relevant to the claimed condition.It is considered the requested information is in the possession, custody or control of Department of Agriculture, Water and the Environment and the information is relevant to the claim made by Dr Karunaratne or that the requested information relates to the performance of functions or the exercise of powers by the Principal Officer under Part III of the SRC Act.[3][3] T21, folio 515. On 14 May 2021, a Departmental officer provided information to Comcare and attached extensive documentation.[4][4] T32; ST1. On 23 June 2021, Comcare issued a determination refusing Mr Karunaratne’s compensation claim.[5] Mr Karunaratne requested reconsideration.[6] On 23 September 2021, Comcare issued a reconsideration decision affirming its primary determination.[7] On 2 November 2021, Mr Karunaratne applied to the Tribunal for review of this decision (application 2021/8106).[8][5] T39.[6] T40.[7] T41.[8] T1.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

As it may be possible to revise the terms and narrow the scope of the summons in a manner which addresses the extent of the Department’s objections I am satisfied are made out, it is appropriate to allow a short period for revised terms to be drafted, discussed, preferably agreed and given to the Tribunal. For this purpose, a period of 7 days will be allowed. Should this not be done, the summons will be vacated.Decision Objection upheld. Within 7 days, Mr Karunaratne may file revised terms to narrow the scope of documents sought consistent with these reasons. Should revised terms not be filed, the summons will be vacated.

Ratio Decidendi

Legal Principle Established

Nevertheless, in order to determine the Department’s objections and to address the submissions made, a principled approach is required. For this purpose, the following principles may be appropriately distilled from relevant authorities and adopted, such that:(a)documents are material if they can be seen, on a sensible appraisal:(i)to be relevant or possibly relevant to an issue in the case, or(ii)to raise or possibly raise a new issue the existence of which was not previously apparent, or(iii)to hold out a real (as opposed to a fanciful) prospect of providing a lead on evidence going to either (i) or (ii); [23][23] Blacktown at [77](b)production of documents with the three categories is required where a legitimate forensic purpose is demonstrated;[24] [24] Ibid.(c)material may be of forensic utility where it is capable of informing a relevant line of inquiry or investigation, or where it assists to identify relevant witnesses, or where it assists in the formulation and framing of relevant questions to be put to witnesses called at the hearing;[25] [25] Brawn v The King [2022] SASCA 96 AT [52].(d)if, ‘on a sensible appraisal’, material the subject of request or subpoena, not previously recognised as coming within any of the three categories, can be seen to do so, a ‘legitimate forensic purpose’ will have been demonstrated;[26][26] Ibid, citing Cornwell v R [2010] NSWCCA 59 at [298].(e)absent a legitimate forensic purpose in connection with the proceedings before the Tribunal, a summons may be set aside on grounds of abuse of process;[27] [27] Blacktown at [61].(f)the duty of disclosure may extend to documents which:(i)might open up useful lines of inquiry to a party, without any narrow view being taken of what might be relevant,[28] or [28] Blacktown at [78], citing Gould v Director of Public Prosecutions (Cth) [2018] NSWCCA 109 at [65].(ii)could reasonably be expected to throw light on some of the issues in the principal proceedings;[29] or[29] Trade Practices Commission v Arnotts Pty Ltd & Ors [1989] FCA 248 at [41].(iii)may assist in the resolution of the issues in the proceedings;[30] [30] Comcare v Maganga [2008] FCA 285 at [37]; BrisConnections Finance Pty Ltd (Receiver and Manager Appointed) v Arup Pty Ltd [2016] FCA 906 at [25].(g)a mere ’fishing expedition’, casting a net in the hope of catching fish without any evidence or a reasonable basis for believing the fish is there to be caught, is not a legitimate forensic purpose and cannot be allowed[31]: the party seeking access to documents cannot simply seek everything in the hope that some document may establish an argument he has already made without any evidence to support it;[32](h)nevertheless, it will not be fishing, manifesting an illegitimate forensic purpose, to seek to subpoena apparently relevant documents for the purposes of cross-examining an important witness, even if the subpoenaing party does not know whether those documents will assist or advance its case;[33](i)If the documents are apparently relevant and, provided that the terms of the subpoena are not unduly vague or the ambit of the subpoena is not such that it would be oppressive to comply with it, the subpoena should not be set aside;[34](j)In order to determine if a summons is oppressive, it is necessary to consider all the relevant circumstances, including:(i)the terms of the summons;(ii)the connection of the recipient to the parties or the issues to be decided;(iii)the burden imposed in order to comply;(iv)the possible relevance of the documents sought and the matters to be decided.[35][31] Alister v R (1984) 154 CLR 404 and 414.[32] Commissioner of Police v Fantakis [2022] NSWCCA 94 at [116].[33] Blacktown at [39]-[40].[34] Blacktown at [68].[35] Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corporation Ltd [1984] 1 NSWLR 710 at 719; Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 575; National Employers’ Mutual General Assn Ltd v Waind [1978] 1 NSWLR 372 at 382.Consideration