KGGY and Comcare (Compensation) - [2024] AATA 1236

KGGY and Comcare (Compensation) [2024] AATA 1236 (27 May 2024)
Division:GENERAL DIVISION
File Number(s): 2024/0456
Re:KGGY
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:R Cameron Senior Member
Date:27 May 2024
Place:Melbourne

The Tribunal directs that the summons lodged by the applicant be set aside.
...................[SGD].................
R Cameron Senior Member
Catchwords
SUMMONS TO PRODUCE DOCUMENTS – the documents enumerated or described in the summons are irrelevant – summons documents subject to a legitimate claim of legal professional privilege – legitimate forensic purpose or shed light on the questions in dispute – waiver of legal professional privilege – objection by the Fair Work Ombudsman – reasonable administrative action taken in a reasonable manner in respect of employment – directs that the summons lodged be set aside.
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Cases
Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49
Federal Court of Australia in New South Wales Council for Civil Liberties Inc v Classification Review Board (No 1) (2006) 236 ALR 313
Mann v Carnell (1999) 201 CLR 1
Marnotta Pty Ltd and Secretary, Dept of Health and Ageing [2004] AATA 800
Trade Practices Commission v Arnotts Ltd & Ors (1989) 88 ALR 90
REASONS FOR DECISION
R Cameron Senior Member
27 May 2024
INTRODUCTION

This matter was referred by a Conference Registrar of the Tribunal for hearing and determination by a Member of an objection by the Fair Work Ombudsman (“FWO”) to a Summons to Produce documents issued by the applicant and directed to it.
The summons seeks production of 11 documents or categories of documents.
At the objection hearing Ms Davenport from the Australian Government Solicitor, appearing for the summonsed party, the FWO, informed the Tribunal that there were 18 documents in total captured by the language used in the summons concerned.
BACKGROUND TO THE APPLICANT’S CLAIM
On 25 November 2022 the applicant made a claim for workers’ compensation. It was a claim for a psychological injury.[1] Subsequently, he was examined by a consultant psychiatrist arranged by the respondent. The consultant psychiatrist expressed the opinion that the applicant was suffering from an adjustment disorder, with mixed anxiety and depression.
[1] The Claim for Workers’ Compensation is document T 5 in the T documents.
A determination following the applicant’s claim for compensation was made by a Delegate of the respondent on 30 January 2023 (“the determination”).[2] The delegate was satisfied that the applicant suffered an adjustment disorder with mixed anxiety and depression. He was further satisfied that the ailment resulted in an impairment. Relying upon the opinion of the consultant psychiatrist he was also satisfied that the applicant’s employment significantly contributed to the condition from which he was found to have suffered.
[2] The determination is document T 15 of the T documents.
Finally, the delegate concluded, for the reasons contained in the determination, that the respondent was not liable to compensate the applicant for the conditions suffered by him because they were suffered, or incurred, as a result of…

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.

Continue reading KGGY and Comcare (Compensation)

Details

AGLC: KGGY and Comcare (Compensation) [2024] AATA 1236
Case: [2024] AATA 1236
Decision Date: 27 May 2024

CaseChat Overview and Summary

This matter concerned a review by the Tribunal of a decision by Comcare affirming an earlier determination that the applicant's psychological injury, diagnosed as an adjustment disorder with mixed anxiety and depression, was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of his employment. The applicant's claim for workers' compensation was initially accepted by Comcare in relation to the diagnosis, but compensation was denied due to the exclusion in the *Safety, Rehabilitation and Compensation Act 1988* (Cth) concerning reasonable administrative action. The Fair Work Ombudsman (FWO), the respondent, challenged a summons issued for the production of documents, arguing they were irrelevant and subject to legal professional privilege.

The primary legal issues before the Tribunal were whether the documents sought by the summons were relevant to the proceedings and whether they were protected by legal professional privilege. The Tribunal was required to consider the test for adjectival relevance, which is satisfied if documents can reasonably be expected to "throw light" on the issues in dispute. Additionally, the Tribunal had to determine the scope of legal professional privilege, which protects confidential communications between a client and legal advisor where the dominant purpose is obtaining or giving legal advice or assistance, or procuring legal advice concerning actual or contemplated litigation.

The Tribunal noted that the applicant contended the documents were relevant as they related to a discussion with a Senior Lawyer at the FWO, which he identified as the time his condition onset. He argued the documents would establish a chronology of events and demonstrate that the Senior Lawyer's actions were operational rather than administrative, thus potentially falling outside the exclusion in the *SRC Act*. However, the Tribunal found it unnecessary to delve deeply into the tests for relevance and legal professional privilege, as it ultimately directed that the summons be set aside.

The Tribunal ordered that the summons lodged be set aside.

Orders

Orders of the court

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Background

Background to the litigation

At the objection hearing Ms Davenport from the Australian Government Solicitor, appearing for the summonsed party, the FWO, informed the Tribunal that there were 18 documents in total captured by the language used in the summons concerned.BACKGROUND TO THE APPLICANT’S CLAIM On 25 November 2022 the applicant made a claim for workers’ compensation. It was a claim for a psychological injury.[1] Subsequently, he was examined by a consultant psychiatrist arranged by the respondent. The consultant psychiatrist expressed the opinion that the applicant was suffering from an adjustment disorder, with mixed anxiety and depression.[1] The Claim for Workers’ Compensation is document T 5 in the T documents. A determination following the applicant’s claim for compensation was made by a Delegate of the respondent on 30 January 2023 (“the determination”).[2] The delegate was satisfied that the applicant suffered an adjustment disorder with mixed anxiety and depression. He was further satisfied that the ailment resulted in an impairment. Relying upon the opinion of the consultant psychiatrist he was also satisfied that the applicant’s employment significantly contributed to the condition from which he was found to have suffered.[2] The determination is document T 15 of the T documents. Finally, the delegate concluded, for the reasons contained in the determination, that the respondent was not liable to compensate the applicant for the conditions suffered by him because they were suffered, or incurred, as a result of reasonable administrative action taken in a reasonable manner in respect of his employment with the FWO. Therefore, the exclusion contained in the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”) applied. The applicant sought reconsideration of the determination under the applicable provisions of the SRC Act. On 29 March 2023 a reconsideration officer of the respondent made a decision affirming the determination.[3] The reconsideration officer concluded that the applicant’s condition arose as a result of a telephone conversation that he had with a Senior Lawyer at the FWO. It was further concluded by the reconsideration officer that the feedback provided by the Senior Lawyer in that telephone conversation was reasonable administrative action, because it was feedback provided to him in relation to the performance of his duties.[3] The reconsideration decision of 29 March 2023 is document T 18 of the T documents. The applicant now seeks a review in this Tribunal of the decision of the reconsideration officer of the respondent made on 29 March 2023.CONSIDERATION The FWO challenges the summons concerned on two bases. Firstly, that the documents enumerated or described in the summons are irrelevant. Secondly, that each of the classes or categories of documents identified in the summons are subject to a legitimate claim of legal professional privilege. It is not necessary for the purposes of these reasons to embark upon an extensive excursion into the test of relevancy when deciding whether to allow a summons to produce documents to be issued in this Tribunal or the relevant tenants of the rule of legal professional privilege.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The applicant now seeks a review in this Tribunal of the decision of the reconsideration officer of the respondent made on 29 March 2023.CONSIDERATION The FWO challenges the summons concerned on two bases. Firstly, that the documents enumerated or described in the summons are irrelevant. Secondly, that each of the classes or categories of documents identified in the summons are subject to a legitimate claim of legal professional privilege. It is not necessary for the purposes of these reasons to embark upon an extensive excursion into the test of relevancy when deciding whether to allow a summons to produce documents to be issued in this Tribunal or the relevant tenants of the rule of legal professional privilege. In several well-established authorities it has been held that the test of adjectival relevance, for the purposes of issuing a summons to produce documents, is satisfied if the documents concerned could reasonably be expected to possibly ‘throw light’ on the issues in the subject proceeding.[4][4] For instance, see Trade Practices Commission v Arnotts Ltd & Ors (1989) 88 ALR 90, 103 (Beaumont J) and Marnotta Pty Ltd and Secretary, Department of Health and Ageing [2004] AATA 800 (DP Forgie). A confidential communication passing between a client and a legal advisor is subject to legal professional privilege if its dominant purpose is either firstly, to enable the client to obtain, or the advisor to give, legal advice or assistance, or secondly, the giving or procuring of legal advice with respect to litigation that is actually on foot or was in contemplation of the parties.[5][5] Esso Australia Resources Ltd v Commission of Taxation (1999) 201 CLR 49. The applicant asserts that the documents are relevant because they are referred to in a witness statement apparently lodged by a Senior Lawyer with whom he had a discussion on or about 20 September 2022.[6] It was on this date that he contends he first noticed the onset of his conditions from which he now suffers.[7] The applicant contends that the documents concerned would unequivocally demonstrate the chronology of events without having to rely on witness testimony and presumably recollections which he contends would be unreliable.[6] The Senior Lawyer at the FWO made a statement 20 December 2022 which is part of document T 8 in the T documents. Also incorporated as part of document T 8 of the T documents is a statement concerning the applicant's workers’ compensation claim made by the Principal Lawyer of the FWO. That statement has also been considered by the Tribunal.[7] This contention is made in his "Employee Statement" made on 25 November 2022 (document T 6 of the T documents) and his Workers Compensation Claim Form of the same date (document T 5 of the T documents). Further, in support of his contention that the documents may throw some light on the issues in dispute in this matter, he submits that the documents described in the summons would establish that the actions on the part of the Senior Lawyer at the FWO, causing the onset of the conditions from which he now suffers, and arising during the course of his employment, were ‘operational in nature’ rather than administrative in the sense contemplated by the exclusion in the relevant section of the SRC Act.