Krampe and Comcare (Practice and Procedure)

Case [2025] ARTA 689

Krampe and Comcare (Practice and Procedure) [2025] ARTA 689 (28 May 2025)

Applicant:Raymond Krampe

Respondent:  Comcare

Tribunal Number:                2024/8559

Tribunal:General Member F Eylward

Place:Perth

Date:28 May 2025      

Decision:The Tribunal ORDERS that:

1.    The Respondent has leave to inspect the documents produced under summons in relation to the proceedings by [Dr BP], [Medical Centre].

2.    By consent, the documents produced by [Dr BP] are to be redacted of information pertaining to [specified medical treatment].

3.    The Applicant’s objection to the full inspection of [Dr BP’s] documents pre-dating 12 March 2024 is disallowed.

4.    The Respondent is not granted leave to inspect the documents produced under summons in relation to the proceedings by Services Australia.

5.    The Applicant’s objection to the Respondent’s inspection of the Services Australia documents produced under summons is upheld.

..................................................[SGD]......................

General Member F Eylward

CATCHWORDS

PRACTICE AND PROCEDURE – compensation claim for psychological injury – summons – objection to inspection of summons material – relevance – request to inspect summonsed material allowed in part – relevance of Medicare Claims History Statement and general practitioner records – date limitations to inspection of summonsed documents – implied undertaking of confidentiality – fishing expedition for Medicare Claims History Statement and Pharmaceutical Benefits

LEGISLATION

Administrative Review Tribunal Act 2024 (Cth)

Safety, Rehabilitation & Compensation Act 1988

CASES

Re Marnotta Pty Ltd and Secretary, Department of Health and Ageing [2005] AATA 800
Dean and Comcare [2019] AATA 99 at [5]-[17]
ZFCC and Comcare [2018] AATA 1358
Martinovic and Australian Capital Territory (Compensation) [2021] AATA 3435 [14]- [17]
Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250
Trade Practices Commission v Arnotts Limited and Others (No. 2) (1989) 88 ALR 90, 103
Comcare v Maganga [2008] FAC 285; (2008) 47 AAR 487 at [37]-[38]
ZFCC and Comcare (Compensation) [2018] AATA 1358 at [14]
Re Cavanaugh and Comcare [2005] AATA 297 at [10]
Panagiotou and TNT Australia Pty Ltd [2011] AATA 565 at [24]
Tretheway and National Disability Insurance Agency [2025] ARTA 88
Franklin and John Holland Pty Ltd (Compensation) [2025] ARTA 201
Medtest Pty Ltd and Medicare Participation Review Committee & Anor [2003] AATA 983
Harman v Secretary of State for Home Dept [1983] 1 AC 280

Jones v Comcare (Compensation) [2019] AATA 5407

SECONDARY MATERIALS

Administrative Review Tribunal (Common Procedures) Practice Direction 2024

Statement of Reasons

BACKGROUND

  1. This interlocutory decision relates to the Applicant’s objection to the inspection of summonsed documents produced to the Tribunal as part of the current proceedings, primarily on the basis of privacy and relevance.

  2. The substantive proceedings in this matter arise from an Application seeking review of a decision made by the Respondent on 14 September 2024 (Reviewable Decision), which affirmed an earlier decision of 25 July 2024 denying liability to pay compensation to the Applicant pursuant to section 14 of the Safety, Rehabilitation & Compensation Act 1988 (SRC Act).[1] This was in response to a claim submitted by the…

Continue reading Krampe and Comcare (Practice and Procedure)

Sign in free to access the full text

Details
AGLC
Krampe and Comcare (Practice and Procedure) [2025] ARTA 689
Case
[2025] ARTA 689
Decision Date

CaseChat Overview and Summary

The case of Krampe and Comcare involves a dispute over a compensation claim for psychological injury, with the proceedings taking place in the Administrative Appeals Tribunal. The Applicant, who had filed a claim for compensation for psychosocial hazards, objected to the full inspection of documents produced in compliance with a summons issued by the Tribunal. The documents in question included the Applicant's Medicare Claims History Statement, general practitioner records, and other medical records. The objection raised by the Applicant was to the inspection of records predating the date of the alleged injury. The primary legal issue the Tribunal had to decide was whether the Applicant's objection to the inspection of the summonsed material should be upheld.

The Tribunal considered the principles governing the inspection of documents in administrative proceedings, emphasizing the need for a balance between ensuring procedural fairness and preventing an abuse of process. The Tribunal noted that a summons must serve a legitimate forensic purpose and not be a fishing expedition. The test for relevance, as established in previous cases, requires that the documents have an "apparent or adjectival relevance" to the issues to be determined in the substantive proceedings. The Tribunal concluded that while there was a possibility that historical records could reveal other diagnoses or contributing factors, the absence of such information could also be relevant. However, the Tribunal found that the inspection of documents predating the alleged injury was not necessary for the resolution of the current dispute, as these documents did not have an apparent or adjectival relevance to the issues at hand.

After considering the arguments and the applicable legal principles, the Tribunal decided to allow the inspection of the summonsed material in part. The Tribunal found that while the Medicare Claims History Statement and certain general practitioner records were relevant, documents predating the alleged injury were not. The Tribunal also noted that the inspection was subject to an implied undertaking of confidentiality to prevent misuse of the information. This decision ensures that the proceedings remain fair and efficient while protecting the privacy and rights of the parties involved. The Tribunal's decision highlights the importance of balancing the need for relevant information with the principles of procedural fairness and confidentiality in administrative proceedings.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The substantive proceedings in this matter arise from an Application seeking review of a decision made by the Respondent on 14 September 2024 (Reviewable Decision), which affirmed an earlier decision of 25 July 2024 denying liability to pay compensation to the Applicant pursuant to section 14 of the Safety, Rehabilitation & Compensation Act 1988 (SRC Act).[1] This was in response to a claim submitted by the Applicant on 29 May 2024 for ‘psychosocial hazard’, said to be due to exposure over a prolonged period of time to psychological and physiological harm from 8 April 2024 relating to the management of an investigation into the Applicant’s conduct on 12 March 2024 by his employer, the Department of Defence.[2][1] T-Docs filed by the Respondent T1, T13, T19[2] T-Docs T3, T4 The Reviewable Decision cites reasonable administrative action under section 5A of the SRC Act as the reasons for declining liability. The Applicant’s treating general practitioner, [Dr BP] of [Medical Centre] certified the Applicant as not being fit to return to work on 15 April 2024 for a period of time, with a diagnosis of ‘psychosocial injury causing anxiety, headache, insomnia and disruption of interpersonal relationships’.[3][3] T-Documents, T9, T20 Pursuant to section 54 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act), the Tribunal may exercise the powers and discretions afforded to the original decision-maker and essentially considers and decides the matter afresh on all of the evidence before it, otherwise known as, on a de novo basis. The interlocutory issue in dispute before the Tribunal for me to now consider is whether the Applicant’s objection to the full inspection of the material produced in these proceedings by [Dr BP] and/or Services Australia in compliance with a summons, including those documents pre-dating 12 March 2024 should be upheld. SUMMONS TO PRODUCE DOCUMENTS On 10 December 2024, the Tribunal issued three summons in these proceedings pursuant to section 74(1)(b) ART Act. These were at the request of HBA Legal, the solicitors for the Respondent and required production of the documents listed within the summonses by 8 January 2025 as follows:(a)The Proper Officer, Subpoena Team, Services Australia:Copy of Medicare Claims History Statement, a History Statement of Pharmaceutical Benefits and a list of serviced received by [the Applicant] (DOB: [redacted])(b)[Dr BP], [Medical Centre]:All files, records of treatment, records of any medical investigations including x-rays and the like, notes of visits, interview notes, patient notes, correspondence, copies of correspondence, referral letters, reports and letters from other doctors, patient history cards, relating to [the Applicant] (DOB: [redacted])(c)[Ms JAD], [Psychology Practice]:All reports, files, mental health plans, psychological and psychiatric reports, counselling records, clinical notes and cards, specialists’ reports, hospital notes/records, reports, referrals, test results and any other files and documents evidencing any treatment in respect of any condition or injury relating to [the Applicant] (DOB: [redacted])Notably, the description of the required documents in each of the summons does not specify any time parameters or limitations of the records to be produced.

Ratio Decidendi

Legal Principle Established

The Tribunal’s discretion to grant leave to parties to inspect documents is subject to the general principles enunciated at section 55(1) of the ART Act in that the Tribunal must ensure that each party to a proceeding is given a reasonable opportunity to:(a)present its case;(b)access any information or documents to which the Tribunal proposes to have regard to in reaching a decision in the proceedings; and (c)make submissions and adduce evidence.Overarching all of this are the principles of administration of justice and procedural fairness.CONSIDERATION There is considerable case law relating to the question of ‘relevance’ for the purpose of granting inspection of summons documents, as distinct from what may be considered ‘relevant’ at the Hearing. It is fairly well established that a summons ‘must be for a legitimate forensic purpose’[13] and not be for a ‘fishing expedition’[14] in the hope something of relevance or interest arises. That would be an abuse of process. [13] Martinovic and Australian Capital Territory (Compensation) [2021] AATA 3435 [14][14] Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250 Whether the summons is for a legitimate forensic purpose as opposed to a fishing expedition must be considered in the context of the substantive proceedings and whether the documents are likely ‘to throw light’[15] on some of the issues. The applicable test established in Martinovic and Australian Capital Territory[16] is that the material must have ‘apparent or adjectival relevance’ to the issues to be determined.[15] Trade Practices Commission v Arnotts Limited and Others (No. 2) (1989) 88 ALR 90, 103[16] Ibid 13 This is not too dissimilar to the earlier decision in Comcare v Maganga[17] where the Federal Court held that the party seeking to inspect the documents does not need to establish that the documents will establish anything, but, rather, whether there is a real possibility the documents may assist in the resolution, or narrowing, of some of the issues in dispute in the substantive proceedings, ergo ‘apparent or adjectival relevance’. [17] [2008] FAC 285; (2008) 47 AAR 487 at [37]-[38] This is a low threshold in compensation matters when taking into account the contrary view that the absence of a similar pre-existing diagnosis in medical records or references to other factors at the time of the injury, itself, could be construed as resolving the issue of a pre-disposition or contribution to the claimed injury other than employment. The general assumption presumes that summonsed documents from a medical practitioner in a compensation matter including historical records is that there is a possibility of other diagnoses or contributing factors to the injury being discovered, but the absence of such information could equally be considered to fall within the definition in Comcare v Maganga and satisfy the threshold for inspection to be granted. Further, what may appear to have no relevance at the point of inspection in narrowing the issues in dispute may change throughout the course of a proceeding, and vice versa, what may seem of little relevance at the time of inspection may take on importance as the matter progresses to Hearing. In ZFCC and Comcare (Compensation)[18], the then Deputy President insightfully stated [at paragraph 14]:“Even when the content of a particular record is fully comprehensible, the relevance of that content to the issue before the Tribunal may not be readily apparent. A member of the Tribunal lacking medical qualifications, as most of us do, is ill- equipped to determine the possible relevance of particular medical records to a particular claimed condition.”[18] [2018] AATA 1358 at [14]