Kelleher v Mortimer Products Pty Ltd - [2024] NSWPIC 32

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Kelleher v Mortimer Products Pty Ltd [2024] NSWPIC 32
APPLICANT:	Matthew Kelleher
RESPONDENT:	Mortimer Products Pty Ltd
MEMBER:	Karen Garner
DATE OF DECISION:	29 January 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for permanent impairment compensation pursuant to section 66 in respect of accepted psychological injury; respondent sought Directions for Production of clinical records of treatment provider in respect of pre-existing psychological condition, to be included in documents to be provided to Medical Assessor in determination of whole person impairment; applicant objected, including on grounds that the application for Directions for Production was a ‘fishing expedition’ and that it was prohibited by Rule 47(1)(a)(iii) of the Personal Injury Commission Rules 2021 (Rules); Held – application for Directions for Production did not constitute a ‘fishing expedition’; not satisfied that a special case exists for the issue of the Directions pursuant to Rule 47(2)(a)(iii) of the Rules; application for Directions for Production refused.
DETERMINATIONS MADE:	The Commission determines: 1. The application by the respondent for the issuing of directions for production on: a. Dr Robyn Haig, and b. Macarthur Square Medical and Dental Centre, is refused. 2. The matter is remitted to the President for referral to a Medical Assessor for assessment as follows: Date of injury: 8 March 2021 Body parts: psychological and psychiatric Method: whole person impairment. 3. The materials to be referred to the Medical Assessor are to include: (a) the Application to Resolve a Dispute and attachments, and (b) the Reply to the Application to Resolve a Dispute and attachments.

STATEMENT OF REASONS

BACKGROUND

Mr Matthew Kelleher (the applicant) was employed by Mortimer Products Pty Ltd (the respondent) as a leading hand technical support and sheetmetal tank fabricator.
On or about 28 May 2021, the applicant made a claim against the respondent in respect of psychological injury and injury to his lower back arising following verbal abuse and physical assault during his employment on 8 March 2021.
On or about 9 June 2023, the applicant served on the respondent a claim for permanent impairment compensation in the sum of $50,730, calculated on the basis of 19% whole person impairment (WPI), based on a report of Dr Rastogi dated 4 May 2023.
By letter dated 22 June 2023, the respondent’s solicitor made a request for further and better particulars which requested the names of all treatment providers (including all specialists, hospitals and general practitioners) that the applicant attended from the period from
1 January 2017 to date. The letter attached an Authority to Release Documents and Information for the applicant to sign.
By letter dated 14 July 2023, the applicant’s solicitor responded to the request for further and better particulars. It stated:
“We are instructed to respond as follows:-
1....
2.Our client has obtained treatment from the following
a.Dr Blagjoe Kuljic at Dr Kuljic Consulting Rooms
b.Dr Yusuf Assem at Myhealth Macarthur Square Medical Centre
c.Dr Rene Delimanis at Southern Cross Counselling and Psychological Services
Our client advises that…

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.

Keep reading for free

Create a free CaseChat account to read Kelleher v Mortimer Products Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2024] NSWPIC 32
Decision Date: 29 January 2024

CaseChat Overview and Summary

The case of Kelleher v Mortimer Products Pty Ltd involved a dispute concerning a claim for permanent impairment compensation under the Workers Compensation Act 1987. The applicant, Kelleher, sought compensation for an accepted psychological injury. The respondent, Mortimer Products Pty Ltd, applied for Directions for Production of clinical records related to a pre-existing psychological condition, intending to include these records in the documents provided to a Medical Assessor for determining whole person impairment. Kelleher opposed the application, arguing that it was a 'fishing expedition' and prohibited by Rule 47(1)(a)(iii) of the Personal Injury Commission Rules 2021.

The court needed to decide whether the application for Directions for Production constituted a 'fishing expedition' and whether a special case existed for issuing the Directions under Rule 47(2)(a)(iii) of the Rules. The court examined the nature and scope of the records sought, the relevance of the records to the claim, and whether the application was made in good faith and for a legitimate purpose. The court found that the records sought were relevant and necessary for the determination of the claim, and that the application was not a 'fishing expedition'. However, the court concluded that a special case did not exist for the issue of the Directions, as the records were not necessary to be disclosed to the Medical Assessor under the specific circumstances of this case.

The court refused the application for Directions for Production, finding that while the records were relevant, they were not required to be disclosed to the Medical Assessor. The court held that the application did not constitute a 'fishing expedition', but did not find a special case for the issue of the Directions. This decision highlights the importance of demonstrating a legitimate purpose and the necessity of the records sought in applications for Directions for Production. The court's ruling ensured that the proceedings remained focused on relevant and necessary evidence, preventing unnecessary disclosure and potential prejudice to the parties.

Orders