Karunaratne and Comcare (Compensation)
[2023] AATA 365
•9 March 2023
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, MemberCatchwords
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 behaviour of Manager suggested to me that he has a mental disorder
When did you first notice your symptoms/injury?
01/12/2020 10:00AM[1]
[1] T18, folio 387.
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 facts
When 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.
The Department asserts, on 8 December 2021 Comcare issued a further notice under s 71 of the SRC Act to which it responded on 14 January 2022. The documents allegedly produced to Comcare have not been specified in submissions made by the Department on this point. The notice has not been given to the Tribunal and it is not clear if the documents produced to Comcare by the Department have been included in documents given to the Tribunal under s 37 or s 38AA of the Administrative Appeals Tribunal Act 1975 (AAT Act).
On 6 April 2022, Mr Karunaratne lodged a further claim for compensation, including the following information:
What is the condition that you are claiming for?
Worsening insomnia, stress, headaches - worrying thoughts for sometime due to previous work place incidents, worsening of those symptoms for the past 6- 7 weeks. The injury initially happened due to a previous work place incident lodged with
Comcare. This claim is currently with the Administrative Appeal Tribunal for decision. This is the second claim I am making attributed to the recent developments that had taken place at work.
The Department did not give me work since 17 Feb 2022 stating that the work is unavailable. I was given work at APS 4 level (I am an APS 6 - max level) since April 2021, but recently requested me to sign the Work Place Learning Agreement (WPLA) of March 2022 stating that I will be working at APS 4 level as a stress break
in the current team, when the indpendent doctors assigned by the department had recommended in May 2021 that I can work at my level (APS 6).
My current manager sent an email (this email was addressed to my supervisor) about my EAP provider to my supervisor stating the following after I discussed the
work place matters with my EAP provider / Psychiatrist seeking his advice. This email was sent to me by mistake.
Really? He spoke to an EAP provider specifically about this?? That EAP provider is going to need the EAP soon
…
What happened and how were you injured?
The injury first happened due to continuous bullying and harassment caused by the previous Manager by sending inappropriate emails. The behaviour of this Manager suggested to me that he has a mental disorder.
The aggravation of this injury happened due to the developments of the current
team. I was transferred to this team as a "stress break" in April 2021.
When did you first notice your symptoms/injury?
30/03/2022 9:00PM [9]
[9] T003, folios 13-15.
On 12 April 2022, Mr Karunaratne provided an extensive statement, including:
Date of injury
The injury started worsening since 17/02/2022.
When did the injury happen or when did I notice my disease?
12. My symptoms worsened from 17 February 2022.
13. Due to the developments that had been taking place at work since July 2020, kindly note I felt that I was:
Ø - bullied and harassed
14. - excluded and sidelined from my regular work activities (APS 6)
15. - singled out by the department
16. - not supported by the department to improve my mental health
17. - deliberately not given work since 17 February 2022 when there is plenty of work.
18. - given work at APS 4 level when the independent doctors had recommended that I can work at my level (APS 6)
19. - deliberately stopped from moving to Austrade in May 2021 on a transfer at my level.
20. Events contributed to my injury/disease
21. The department asked me to undertake a formal Performance Improvement Process (PIP) in June 2021 by indirectly engaging the previous Manager (Mr Neimanis) who had bullied and harassed me since 2018 by the current manager (Ms Rosanna Carr) disregarding medical advice.
22. The delegate not informing me about the outcome of my formal PIP initiated by the department indirectly involving Peter Neimanis disregarding independent medical advice. The guideline states that I should be informed within 60 days (by November 2021) about the outcome after finishing the formal PIP (PIP finished in September 2021), but this did not happen.
23. I was asked to complete my Work Plan and Learning Agreement (WPLA) in March 2022 that I will be working at APS 4 level, when my work level was APS 6. The independent doctors assigned by the department recommended in May 2021 that I should be given work at my level (APS 6).
24. - The department asked me to sign off my WPLA that I will not be performing at my substantive level (APS 6) but undertaking work closer to the APS4 level stating that there was an agreement between David Ironside (Asst. secretary), current team and I regarding this matter. This was relating to my March check point.
25. - I said that I cannot agree on this because there was no such agreement. My supervisor changed it further and informed me that I should include in my WPLA that “The calibre of work I will be performing in IMT is at the APS 4 level”.
26. Inappropriate (Bullying) email was sent by the current manager on 15 March 2022 stating that "my EAP provider is going to need EAP soon".
27. The doctor prescribed me medication on 23 Feb 2022 after observing workplace incidents during his monthly discussions.
28. I also discussed the afore-stated matters monthly with my EAP provider and Psychologist over a significant period.
29. The department verbally asked me around six months ago whether I am happy to accept a Voluntary Redundancy (VR). This came to me as a surprise.[10]
[10] T005, folio 25.
The Department asserts, on 14 April 2022, Comcare requested information from the Department and issued a Notice under s 71 of the SRC Act. The Notice has not been given to the Tribunal.
In an undated letter,[11] the Department provided information to Comcare and attached a large amount of documentary material.[12]
[11] T009.
[12] T9A-T9FFF.
On 6 June 2022, Comcare issued a determination refusing Mr Karunaratne’s second claim for compensation.[13] Mr Karunaratne requested reconsideration of this decision.[14] On 4 August 2022, Comcare issued a reconsideration decision affirming the primary determination to refuse Mr Karunaratne’s second claim.[15] On 17 August 2022, Mr Karunaratne applied to the Tribunal for review of this decision (application 2022/6717).[16]
[13] T10.
[14] T11-T11G.
[15] T13.
[16] T1.
On 24 August 2022, Mr Karunaratne’s lawyer, Mr Bill McCarthy of Bradley Allen Love, requested the issue of a summons for production of the documents by the Department which are specified in Attachment A to the summons (Attachment A), as follows:
The reasons given for the request are:
On 25 August 2022, the summons was sealed and issued by the Tribunal. It required production of documents by 12 September 2022.
On 8 September 2022, the Department’s lawyer, Mr Sverre Gunnersen of the Australian Government Solicitor, lodged an objection to the summons. The objection was made on grounds the summons is an abuse of process and it is oppressive. The Department reserved its right to object on further grounds.
On 26 September 2022, submissions responding to the objection were lodged for Mr Karunaratne.
On 17 October 2022, written submissions were lodged for the Department, pressing the objection on grounds the summons lacks a legitimate forensic purpose, it is an abuse of process, and it is oppressive.
On 25 October 2022, further written submissions were lodged for Mr Karunaratne, to which the Department responded with amended submissions on 25 November 2022.
On 2 February 2023, Mr McCarthy lodged further written submissions for Mr Karunaratne.
I have carefully considered the submissions made.
Before dealing with each objection, it is convenient to make some general observations.
Principles
The summons power of the Tribunal is set out in s 40A of the Administrative Appeals Tribunal Act 1975 (AAT Act):
(1) For the purposes of a proceeding before the Tribunal, the President, an authorised member or an officer of the Tribunal may summon a person to do either or both of the following, on the day, and at the time and place, specified in the summons:
(a) appear before the Tribunal to give evidence;
(b) produce any document or other thing specified in the summons.
(2) The President or an authorised member may refuse a request to summon a person.
(3) A person may, before the day specified in the summons, comply with a summons to produce a document or thing by producing the document or thing at the Registry from which the summons was issued. If the person does so, the person is not required to attend the hearing of the proceeding unless:
(a) the summons or another summons requires the person to appear before the Tribunal; or
(b) the Tribunal directs the person to attend the hearing.
Documents sought under a summons must be for a legitimate forensic purpose and, at least, they must have apparent or adjectival relevance to the issues for determination in the proceedings.[17] The threshold of apparent relevance involves consideration of a question of materiality to the extent that, when viewed realistically, the documents sought have a bearing on an issue which is not unreal, fanciful or speculative, or that the material sought is reasonably likely to add in some way to the relevant evidence in the case, or that it be “on the cards” that the documents sought will materially assist the party at whose request the subpoena has been issued.[18]
[17] Comcare v Maganga [2008] FCA 285 at [36]; Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145, per Bell P with whom Brereton and McCallum JA agreed at [65]-[66]..
[18] Wong v Sklavos [2014] FCAFC 120 at [12].
In Secretary of the Department of Planning, Industry and Environment v Blacktown City Council (Blacktown),[19] Bell P discussed a sea change in the law relating to disclosure in the criminal law[20] and related principles applicable in the civil case then on foot. The procedural context in which a summons is issued, including the nature of the proceedings and any legislative guidance as to the procedure to be followed, are important considerations.[21]
[19] [2021] NSWCA 145.
[20] Blacktown at [76]
[21] Blacktown at [59].
The summons power in s 40A of the AAT Act is [f]or the purposes of a proceeding before the Tribunal. When considering this, there are key characteristics of Tribunal proceedings which must be kept squarely in mind.
Firstly, proceedings in the Tribunal are of an administrative nature, involving the making of administrative decisions in exercise of review jurisdiction conferred by legislation. The Tribunal is not a court.
Secondly, while Tribunal proceedings commonly involve disputation between parties over contested facts and entitlements, sometimes vigorously pursued with the assistance of legal representatives, the proceedings are not adversarial in nature. The non-adversarial nature of Tribunal proceedings is reinforced by the obligation under s 39(1), whereby the Tribunal must ensure each party has a reasonable opportunity to present their case, and under s 33(1AB), whereby each party is obliged to use their best endeavours to assist the Tribunal to fulfil the objective set out in s 2A, namely:
In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that:
(a) is accessible; and
(b) is fair, just, economical, informal and quick; and
(c) is proportionate to the importance and complexity of the matter; and
(d) promotes public trust and confidence in the decision‑making of the Tribunal.
Thirdly, for the purposes of reviewing a decision, the Tribunal may exercise all the powers and discretions conferred upon the person who made a decision under review, and it is subject to the same limits.
Fourthly, and perhaps most importantly for present purposes, under s 33(1)(c) of the AAT Act, the Tribunal is not bound by the rules of evidence and may inform itself on any matter in such manner as it thinks appropriate in order to make the correct or preferable decision in the particular case. Subject to statutory limits that might apply under the AAT Act and the applicable legislation conferring jurisdiction in any case, the Tribunal controls the procedure to be followed on receipt of an application for review of a decision. In so doing, including when deciding if the discretion to set aside a summons should be exercised in the particular circumstances of any case, the Tribunal must proceed in a manner that is procedurally fair.
Considering this context, attempting to draw fixed principles of universal application in respect of the permissibility of a summons from the wide array of cases dealing with matters of disclosure under the criminal and civil law is fraught and may be unhelpful.[22]
[22] Re Don [2006] NSWSC 1125, per Sully J at [25].
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
The substantive issues to be decided in these applications, pursuant to the compensation claims Mr Karunaratne made, turn on:
(a)whether he suffered from an ailment to which his employment contributed to a significant degree, such that the ailment amounts to a disease for the purposes of s 5B of the SRC Act; and if so
(b)whether the disease resulted from reasonable administrative action undertaken in a reasonable manner in respect of [his] employment, such that the disease is not an ‘injury’ for the purposes of s 5A of the SRC Act.
In order to determine these issues, and considering the scope of Mr Karunaratne’s compensation claims, findings will be required in respect of relevant circumstances of Mr Karunaratne’s employment from December 2019 to 17 February 2022.
In respect of the first issue in paragraph 53(a), above, it will be necessary to determine if a causal nexus is established between the ailments which are the subject of his compensation claims and the circumstances of his employment. The applicable causal threshold in respect of employment is that the employment contributed to the ailment to a degree that is substantially more than material. When assessing if that threshold is met, the matters set out in s 5B(2) must be taken into account:
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
Should the requisite causal nexus between the employment and Mr Karunaratne’s alleged ailment or ailments be established by evidence, the second issue in paragraph 53(b), above, will arise for determination. It will be necessary to answer the question whether Mr Karunaratne’s ailment or ailments resulted from reasonable administrative actions taken in a reasonable manner in respect of his employment. This will require detailed findings to be made about administrative actions and the manner in which they were taken in his employment during the period or periods within the scope of his compensation claims. The scope of reasonable administrative action is explained in s 5A(2):
(2) For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:
(a) a reasonable appraisal of the employee’s performance;
(b) a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;
(c) a reasonable suspension action in respect of the employee’s employment;
(d) a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;
(e) anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);
(f) anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.
In order to make findings about these matters, probative materials are required. The Tribunal cannot make findings drawn from thin air. It is for this reason that detailed records of the circumstances of Mr Karunaratne’s employment, including administrative actions taken in that context are required. Furthermore, as reasonableness and the manner in which actions are taken require careful consideration of the context of any subject action and the conduct or behaviour of those involved the evidentiary requirement has a broad ambit which may traverse the nature and incidents of interpersonal relationships between Mr Karunaratne and co-workers, supervisors, managers and others who were involved in circumstances of relevance in his employment. When compiling employment documents and records in such a case, the net should not be cast too narrowly to exclude documents which may be of apparent relevance to matters about which findings will be made.
As I have said, the Tribunal must ensure that each party is given a reasonable opportunity to present their case. Necessarily, in a case of this kind, this means using the Tribunal’s power to summons records that have apparent relevance and, thereby, enabling the parties to build the mosaic of evidence on which the particular issues in the proceedings are to be assessed and determined. This obligation, and the right of each party to thoroughly prepare their case, reflects a powerful public interest in the fair and just review of administrative decisions in accordance with the objective expressed in s 2A of the AAT Act.
The Department contends it has produced all relevant materials in responding to notices issued by Comcare under s 71 of the SRC Act and asserts there is no legitimate forensic purpose in the summons which requires production of material outside the scope of the s 71 notices, and which would not concern the issues or circumstances raised in Mr Karunaratne’s compensation claims.
There are two flaws in this submission.
Firstly, the submission proceeds on the assumption the terms of each notice Comcare issued under s 71 of the SRC Act accurately and completely describe the scope of relevant documents. In submissions, the Department described the notices as comparatively narrow:
It is entirely unsurprising that many more documents are potentially responsive to the extremely broad categories of documents sought in the Summons than were produced in response to the comparatively narrow categories of documents sought in the Section 71 notices.[36]
[36] Summons addressee’s Amended outline of submissions, 25 November 2022 at [20].
Even on a cursory examination of the terms used in each notice, the scope of relevant documents is not clear. The language used, including words and phrases such as “concerning”, “in relation to” and “relevant to”, requires interpretation and the exercise of judgment. This extends to subject phrases, including “the issues and circumstances which have been raised by Mr Karunaratne’ and “the work factors and incidents which have been raised by Mr Karunaratne”. The interpretation of terms and the scope of documents to be produced under each notice may legitimately be open to question. The significance of any such question may be understood in the context of the claims made by Mr Karunaratne and the present proceedings, in which alleges he was bullied and poorly treated in his employment by the Department over an extended period. In this regard, when viewed through the lens of Mr Karunaratne’s claims, at least, the Department is not a neutral entity. No different conclusion is reached when the insurance relationship the Department has with Comcare is considered, in which premiums are determined and paid under the scheme of the SRC Act.
This is not to suggest the Department has acted inappropriately in any way when considering and responding to Comcare’s notices. The point is the judgment exercised in responding to the notices may be a matter about which reasonable minds, unaffected by particular interests, acting impartially, might differ. Seeking to test the interpretation adopted and the judgment made, and the scope and completeness of the documents thus produced, against the threshold of adjectival relevance may, at this early stage of proceedings before the Tribunal, amount to a legitimate forensic purpose. There is no provision for discovery in the Tribunal and there is no authority for the proposition Mr Karunaratne may be able to access any further documents held by the Department by prevailing upon Comcare to use its power under s 71 of the SRC Act. I do not accept the proposition the summons amounts to an abuse of process.
The second flaw in the submission is it proceeds on the assumption the s 71 notices align with and encompass all documents within the Department’s holdings which are of adjectival relevance to the matters the Tribunal must considering and make findings about in order to make the correct or preferable decision. Mr Karunaratne has identified documents in the form of emails he says are of direct relevance which have not been produced to Comcare by the Department. If he is correct, two propositions arise: either the documents were not within the Department’s holdings, perhaps having been destroyed, not retained or lost as occurs from time to time, or they were not considered, or not considered to be relevant and within the scope of the terms of either notice, and thus not included in the Department’s response to the Comcare notices. Seeking disclosure of a broader range of documents within the ambit of adjectival relevance to the claims Mr Karunaratne has made in order to test either proposition may amount to a legitimate forensic purpose at this stage of the proceedings. In consideration of the document extracts Mr Karunaratne has provided, doing so is not speculative and it does not amount to a fishing expedition. The question of breadth is another matter, however.
The onus, the Department argues, is on Mr Karunaratne to establish there are, or there might be, some additional documents which have not yet been made available to him that will materially assist to advance the issues in the case. I am satisfied the emails Mr Karunaratne has identified serve this purpose to the extent that there appear to be documents not produced by the Department in response to Comcare’s notices which are relevant to the matters raised in the compensation claims he made, and which may materially assist the preparation of his case. This is so even though the emails are not within the temporal terms of the summons: the existence of emails not disclosed may be sufficient ground to extend the enquiry.
At this point it is important to address the temporal aspects of items 1 to 14 in Attachment A of the summons issued on 25 August 2022. The period specified in items 2, 3, 4, 6, 7 and 11 run to 19 August 2022. The period specified in item 5 runs to 25 July 2022. Each of these items refer to a period of time which runs well past the date of Mr Karunaratne’s second claim, in which he alleged he first noticed a worsening of symptoms on 30 March 2022,[37] a date he subsequently revised to 17 February 2022. It is difficult to understand how any matters after the date of the alleged injury may have contributed to cause it. That logical flaw has not been addressed in the submissions made for Mr Karunaratne and it weighs against those aspects of the summons being for a legitimate forensic purpose.
[37] T003, folio 15.
The Department asserts the breadth of the documents sought demonstrates want of a legitimate forensic purpose. The Department argues items 1 to 14 in Attachment A of the summons would capture documents naming Dr Karunaratne in the ordinary course of day-to-day Departmental business, including emails to and from those identified in the summons which include Mr Karunaratne’s name.[38]
[38] Summons addressee’s Amended outline of submissions, 25 November 2022 at [27].
It can be accepted there may be a large volume of email traffic between co-workers and managers in the course of undertaking the daily work and projects of the Department. It may also be accepted much of this material may be entirely innocuous, for example emails to work, project or sectional teams, or divisional groups, in which Mr Karunaratne was one of a number of addressees but not otherwise referred to. There are serious questions about the adjectival relevance of material of this kind which Mr Karunaratne has not squarely addressed in submissions.
Nonetheless, it is conceivable material of this kind may have contextual relevance to the assertions of bullying and harassment Mr Karunaratne has made. Albeit perhaps innocuous in its content, it may provide a background against which to assess Mr Karunaratne’s allegations of continuous bullying and harassment. This cannot, however, be said to materially assist Mr Karunaratne’s case.
I am satisfied, reference to Mr Karunaratne’s name, or in the context of item 11 in Attachment A to Mr Neimanis’ name, alone, cast a net too broad, reaching outside the boundary of adjectival relevance in this case. More is required to narrow the scope and to focus the lens on matters of relevance to Mr Karunaratne’s case, having regard to the factual matters in dispute and documents of forensic utility which may materially assist him prepare his case for hearing.
The Department asserts Mr Karunaratne has not explained how the documents sought by item 15 in Attachment A have relevance to the matters to be decided by the Tribunal. This is incorrect.[39] In submissions for Mr Karunaratne, it is asserted that the documents sought by item 15 are relevant to establish motives for the subject to bully, and create a hostile work environment for the applicant and to put him on back-to-back performance improvement processes.[40] It can be accepted the documents sought may serve to establish certain conduct and circumstances which, if proved, may be relevant to and materially assist Mr Karunaratne’s case and the Tribunal to make the correct or preferable decision.
[39] Ibid, at [27.5].
[40] Applicant’s further submissions, 25 October 2022 at [12.5].
The Department asserts the summons is oppressive and unduly burdensome. Searches conducted, so the argument goes, have identified 12,955 documents so far.[41] The objection on grounds of oppressiveness is not made out on matters of volume, alone. It is raised on grounds of relevance as well.
[41] Summons addressee’s Amended outline of submissions, 25 November 2022 at [29].
It will be clear by now, I am satisfied this objection is partly made out. To the extent items 1 to 14 in Attachment A exceed the bounds of adjectival or contextual relevance, I accept the summons requiring production is oppressive.
Conclusion
On balance, I am satisfied the objections must be upheld.
The documents sought under the terms of items 2, 3, 4, 5, 6, 7 and 11 in Attachment A lack relevance, forensic utility and a proper purpose to the extent that the time periods specified in these items extend beyond 30 March 2022.
The documents sought under the terms of items 1 to 14 inclusive in Attachment A lack apparent relevance and forensic utility for Mr Karunaratne, and consequently requiring production of them is oppressive, to the extent that key criteria for document selection is the raising Mr Karunaratne’s name, alone.
The documents sought under the terms of item 11 in Attachment A lack apparent relevance, and consequently requiring production of them is oppressive, to the extent that key criteria for document selection is the raising Mr Neimanis’ name, alone.
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.
I certify that the preceding 80 (eighty) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member.
...............[SGD]...........................
Associate
Dated: 9 March 2023
Date final submissions received
2 February 2023
Solicitor for Applicant:
Mr William McCarthy, Bradley Allen Love Lawyers
Solicitor for the Department:
Mr Sverre Gunnersen, Australian Government Solicitor
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