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Kovacs v Strathfield Municipal Council

Kovacs v Strathfield Municipal Council

Case [2023] NSWPIC 611 14 November 2023

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CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Kovacs v Strathfield Municipal Council [2023] NSWPIC 611
APPLICANT:	Ovidiu 'Vince' Kovacs
RESPONDENT:	Strathfield Municipal Council
MEMBER:	Rachel Homan
DATE OF DECISION:	14 November 2023
CATCHWORDS:	WORKERS COMPENSATION - Claim for compensation in respect of psychological injury alleged to have occurred as a result of bullying and harassment by supervisor; notice for production requesting supervisor’s personnel file; determination of notice of objection lodged by respondent; relevance; legitimate forensic purpose; Held – notice for production set aside in part.
DETERMINATIONS MADE:	The Commission determines: 1. The notice for production dated 10 October 2023 is set aside in part.

STATEMENT OF REASONS

BACKGROUND

Mr Ovidiu 'Vince' Kovacs (the applicant) was employed as a Team Member by Strathfield Municipal Council (the respondent).
On 21 January 2020, the applicant injured his left elbow at work whilst bolting two sections of fence together. On 1 June 2021, the applicant sustained a further injury to his left elbow while attempting to feed a branch into a chipper. On 13 September 2021, the applicant injured his left ankle at work while stepping across a section of uneven footpath. It appears that liability for these physical injuries was accepted by the respondent’s insurer.
On 7 March 2022, the applicant made a claim for compensation in respect of a primary psychological injury due to various incidents in the course of his employment. Liability for the psychological injury was disputed in a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 28 March 2022. That decision was maintained in a further notice issued pursuant to s 78 of the 1998 Act on 10 August 2022.
Notices disputing ongoing liability to pay compensation in respect of the physical injuries and maintaining the disputes in relation to the psychological injury were issued on
15 November 2022.
On 8 June 2023, the applicant made a claim for lump sum compensation in respect of the psychological injury relying on an assessment of 24% whole person impairment (WPI) made by psychiatrist, Dr Frank Chow.
A further notice maintaining the liability disputes was issued on 4 October 2023.
The present proceedings were commenced by an Application to Resolve a Dispute (ARD) lodged in the Personal Injury Commission (Commission) on 6 October 2023.
The applicant seeks lump sum compensation in respect of the psychological injury as well as weekly compensation and medical and related treatment expenses in respect of both the physical injuries and the psychological injury.
The matter proceeded to a preliminary conference on 9 November 2023, during which there was a discussion regarding a notice for production (the Notice) served by the applicant on
10 October 2023. The respondent lodged a notice of objection pursuant to r 41(2) of the Personal Injury Commission Rules 2021 on 17 October 2023.
The applicant pressed for production of the documents but indicated he would be prepared to narrow the scope of the documents sought to some extent. The respondent maintained its…

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 Kovacs v Strathfield Municipal Council

Details

AGLC: Kovacs v Strathfield Municipal Council [2023] NSWPIC 611
Case: [2023] NSWPIC 611
Decision Date: 14 November 2023

CaseChat Overview and Summary

In the case of Kovacs v Strathfield Municipal Council, the plaintiff sought workers' compensation for a psychological injury that they claimed was caused by bullying and harassment by their supervisor. The matter was heard in the Dust Disease Tribunal of New South Wales. The primary issue for the court to decide was whether the notice for production, which requested the supervisor’s personnel file, was relevant and served a legitimate forensic purpose.

The court examined the nature of the information sought in the notice for production and its relevance to the claim. It was established that the personnel file contained information that could potentially support the plaintiff's allegations of bullying and harassment. However, the court had to determine whether this information was strictly necessary for the resolution of the case. The respondent argued that some parts of the requested file were not relevant and that its disclosure would infringe on privacy rights. The court had to balance the need for information against the right to privacy and the principle of proportionality.

The court concluded that while some parts of the supervisor’s personnel file were relevant and served a legitimate forensic purpose, other parts were not. Consequently, the notice for production was set aside in part. The court held that only the relevant information necessary for the case should be disclosed. The respondent’s notice of objection was therefore upheld in part. The court issued orders directing the parties to limit the disclosure of the personnel file to the relevant and necessary information.

Orders