Kuchlmayr and Australian Capital Territory (Compensation)
[2023] AATA 2305
•1 August 2023
Kuchlmayr and Australian Capital Territory (Compensation) [2023] AATA 2305 (1 August 2023)
Division:GENERAL DIVISION
File Number(s): 2022/6558
Re:Nicole Maree Kuchlmayr
APPLICANT
Australian Capital TerritoryAnd
RESPONDENT
DECISION
Tribunal:Mr S. Webb, Member
Date:1 August 2023
Place:Canberra
Objections upheld.
...............[SGD]..............................
Mr S. Webb, Member
Catchwords
PRACTICE AND PROCEDURE – review of decision refusing compensation claim in respect of alleged injury – summons – objection to production – scope of summons – relevance – objections upheld
Legislation
Administrative Appeals Tribunal Act 1975 ss 40A
Safety, Rehabilitation and Compensation Act 1988 ss 5A, 5B, 14
Cases
BrisConnections Finance Pty Ltd (Receiver and Manager Appointed) v Arup Pty Ltd [2016] FCA 906
Comcare v Maganga [2008] FCA 285
Hamilton v Oades [1989] HCA 21
Hunt v Wark (1985) 40 SASR 489
Kuchlmayr and Australian Capital Territory [2020] AATA 5072
Kuchlmayr and Australian Capital Territory [2022] AATA 1527
Lakatoi Universal Pty Limited and Ors v Walker and Ors [1998] NSWSC 470
Re Trade Practices Commission v Arnotts Pty Ltd & Ors [1989] FCA 248
Roberts-Smith v Fairfax Media Publications Pty Limited (No 42) [2023] FCA 750
Wong v Sklavos [2014] FCAFC 120
REASONS FOR DECISIONMr S. Webb, Member
1 August 2023
Nicole Kuchlmayr claimed compensation in respect of an alleged injury in her employment by the Australian Capital Territory (ACT) Department of Health (ACT Health). Employers Mutual Limited (EML), the ACT’s compensation claims manager, decided to refuse her claim. This decision was affirmed on reconsideration. Ms Kuchlmayr lodged an application for review of the decision by the Tribunal.
In the course of the resulting proceedings, Ms Kuchlmayr’s legal representative, Mr Dean Prail of Prail Lawyers, applied to summons records of the ACT Integrity Commission (Commission). A summons was sealed and issued. The Commission partially complied with the summons and objected to production of internal documentation. Mr Prail opposed the objection and pressed for full production by the Commission.
It is the Commission’s objection which is the subject of this interlocutory decision.
Facts
On 1 July 2017, Ms Kuchlmayr lodged a claim for compensation (1st claim).[1] The claim included the following terms:
[2]
[1] T4.
[2] Ibid folio 16.
On 17 July 2017, Comcare (then responsible for determining compensation claims against the ACT) decided to accept the claim (initial determination).[3] Comcare was satisfied Ms Kuchlmayr suffered a ‘disease’ for the purposes of s 5B of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act), namely an adjustment reaction with mixed emotional features ailment to which her employment contributed to a significant degree.[4] Comcare accepted liability for the ‘injury’ under s 14 of the SRC Act and approved compensation in respect of reasonable medical treatment expenses and for time off work from 31 March 2017 to 18 May 2017.
[3] T13.
[4] Ibid folio 266.
The ACT requested reconsideration of the initial determination.
On 12 October 2017, Comcare issued a reconsideration decision revoking the initial determination (1st reconsideration decision).[5] The reconsideration decision maker decided Ms Kuchlmayr’s ‘disease’ was excluded as an ‘injury’ under s 5A of the SRC Act because it resulted from reasonable administrative action undertaken in a reasonable manner in respect of her employment.
[5] T19.
Ms Kuchlmayr lodged an application for review of the reconsideration decision by the Tribunal.
In the result, on 21 June 2018, following written agreement of the parties, the Tribunal issued a consent decision (consent decision) affirming the reconsideration decision.[6]
[6] T21.
I understand Ms Kuchlmayr obtained further information she considered relevant to her 1st claim under the Freedom of Information Act 1981 (FOI Act).[7]
[7] See T31, folios 431-432 for example.
On 26 October 2020, without legal representation, Ms Kuchlmayr lodged an application for review of the consent decision on grounds ACT Health had provided false and misleading information to Comcare when requesting reconsideration of the initial determination. The Tribunal decided it was functus and dismissed her application for want of jurisdiction under s 42A(4) of the Administrative Appeals Tribunal Act 1975 (AAT Act).[8]
[8] Kuchlmayr and Australian Capital Territory [2020] AATA 5072.
On 26 August 2021, Mr Prail wrote to EML inviting the ACT to undertake an own motion reconsideration of the 1st reconsideration decision.
The ACT declined the invitation and provided written reasons.
On 14 February 2022, acting for Ms Kuchlmayr, Mr Prail lodged an application for review on grounds that the ACT’s refusal to undertake an own-motion reconsideration was a reconsideration decision capable of review by the Tribunal. The Tribunal did not agree and dismissed the application for want of jurisdiction.[9]
[9] Kuchlmayr and Australian Capital Territory [2022] AATA 1527; T29.
On 3 May 2022, Ms Kuchlmayr lodged a further compensation claim (2nd claim).[10] The 2nd claim was substantially similar to the 1st claim,[11] although additional supporting materials were provided. It sets out the following information of present relevance:
[10] T22.
[11] Ibid, folio 382.
…
18. What is/are the injury(ies) you are claiming for?
Psychological injury
19. What parts of your body are affected?
All
20. What happened, and how were you injured?
Reprisals from management after raising fraud
21. What task(s) were you doing when you were injured?
Administration
…
23. When did the injury occur?
Date: 27/05/2016 …
24. When did you first notice your injury?
27/05/2016
…
On 1 July 2022, EML decided the claim was in respect of the same alleged injury as the 1st claim. EML determined the claim was not made out and ACT was not liable to pay Ms Kuchlmayr compensation.[12]
[12] T30.
Mr Prail was instructed to request reconsideration of EML’s determination.
On 10 August 2022, EML affirmed the determination refusing Ms Kuchlmayr’s 2nd claim.
On 15 August 2022, Mr Prail lodged an application for review of EML’s reconsideration decision on 10 August 2022.
In the course of the proceedings, on 4 April 2023, Mr Prail lodged a request for a summons to be issued in respect of the Commission in the following terms:
Mr Prail asserted the requested documents contain reasonable, necessary and relevant information for the Tribunal to be able to decide this matter before it.
The Tribunal was not satisfied Mr Prail’s assertion was sufficient to justify exercise of the discretion conferred by s 40A(1) of the AAT Act and summon documents from the Commission. On 11 April 2023, Ms Kuchlmayr was directed to provide further and better reasons for the summons request.
On 24 April 2023, Mr Prail provided written submissions in support of the request, including the following:
7. The Applicant raised the factual circumstances regarding the dating, or importantly, backdating documents within ACT Health with the Integrity Commissioner of the ACT (the Commissioner). In reply the Commissioner confirmed that a file was opened regarding the matter with matter number R22-0130 on 3 November 2022.
8. The Commissioner provided its outcome, from the Director of Assessments, relating to the disclosure to the Commission on 27 February 2023 and stated that notwithstanding an assessment:
which involved a review of all the information available to the Commission
the Commissioner
decided that the issues you disclosed, though not unimportant, do not meet the threshold for the definition of disclosable conduct under section 8 of the Public Interest Disclosure Act 2012 …
9. The Applicant requested copies of the information supplied to the Commissioner consider and also a copy to the review/report/investigation/outcome on 6 March 2023. No such copies have been provided.
…
10. The Applicant contends that the relevant information relied on by the Commissioner is relevant to the cause of her claimed condition. These are matters that the Commissioner would likely have had regard to when considering the matter referred for consideration.
On 27 April 2023, the Tribunal sealed and issued a summons in the terms requested, requiring the Commission to produce documents within its terms to the Tribunal by 30 May 2023.
On 23 May 2023, the Commission produced a number of documents “originally provided by Ms Kuchlmayr” and objected to production of “the Commission’s internally generated documents on grounds of relevance”. The Commission stated:
The Commission is advised by the applicant's solicitor that the matter before the AAT is a 'workers' compensation matter' (letter from Prail Lawyers to the Commission dated 1 May 2023). The Commission notes that its functions extend only to allegations of corrupt conduct and public interest disclosures pursuant to the Integrity Commission Act 2018 (ACT) and the Public Interest Disclosure Act 2012 (ACT). As such, the Commission has no role or interest in Ms Kuchlmayr's workers' compensation claim, and no power to investigate or otherwise become seized of that matter.
It follows that the Commission did not conduct an investigation, did not collect any evidence, and concluded in assessing only the material provided by Ms Kuchlmayr (originally to the ACT Human Rights Commission, which the Human Rights Commissioner forwarded to the Commission) in determining that neither corrupt conduct for the purpose of s.9 of the Integrity Commission Act 2018 (ACT), nor a public interest disclosure for the purpose of s. 7 of the Public Interest Disclosure Act 2012 (ACT), was established.
Having worked through its holdings, the Commission immediately telephoned the applicant's solicitors on 9 May 2023 in order to explore further the issue of relevance. Being unable to make contact with the responsible solicitor, the Commission then wrote to the applicant's solicitors attaching correspondence to email dated 10 May 2023, querying the relevance of material generated by the Commission to a workers' compensation claim before the AAT.
The Commission received a delayed response from the applicant's solicitors one week later, on 17 May 2023. In that letter, the applicant's solicitor declined to negotiate on the terms of the Summons, stating that
‘we argue that the issue before the Commission includes the backdating of records by the ACT Government. It is this aspect that is said to be an issue between the parties and relevant to the cause of an injury to the claimant.’
The Commission itself obtained no information additional to that supplied by Ms Kuchlmayr, so the only other material in its possession - aside from that supplied by her - is its assessment of the statutory tests for whether the alleged conduct constitutes corrupt conduct or a public interest disclosure. This opinion is necessarily irrelevant to the applicant's workers' compensation claim before the AAT.
The Commission therefore requests that the AAT confirm that the Commission is not required to produce documents under the Summons which are purely internal to the Commission on the basis that they are not relevant to the workers' compensation matter before the AAT.
In the alternative, the Commission notes that the AAT may issue a summons pursuant to s.40A Administrative Appeals Tribunal Act 1975 (Cth) upon request 'for any ... documents that will be relevant to the review of the decision' (emphasis added). The Commission submits that the AAT does not have the power to issue a summons as broad and non-specific as 'all documents and materials in the possession or control of the ACT Integrity Commission, for and in respect of the applicant', where compliance would inevitably mean provision of documents not relevant to AAT proceedings. Such a summons is an abuse of process.
Finally, the Commission requests written confirmation that the return date in respect of those documents which it objects to producing be extended beyond 30 May 2023 until the Commission's objection has been dealt with. As stated above, the Commission will comply with the return date of the Summons in respect of those documents to which no objection is taken.
On 28 June 2023, the Tribunal issued directions requiring Ms Kuchlmayr to provide written submissions in response to the Commission’s objection and providing the ACT and the Commission an opportunity to reply.
On 5 July 2023, Mr Prail filed written submissions, asserting:
…
16. The Respondent relies on Reasonable Administrative Action undertaken in a reasonable manner (RAA) to deny the Applicant’s claimed injury. The RAA relied on is the applicant’s alleged underperformance from December 2016. The Applicant argues that she was overloaded from mid 2015. She also alleges that the result of the disclosure of the backdating of documents resulted in adverse conduct by her employer.
17. The Applicant argues that it is a fact in issue between the parties and a matter that the Tribunal is required to consider. The information obtained and considered by the Commissioner is therefore relevant to that, or those, facts in issue.
…
21. The applicant argues that the relevant and probative material in respect of the Commissioner’s file relates to a matter at issue which is whether the Directorate did backdate documents in the applicant’s work area or not and that evidence could rationally affect the fact in issue – the backdating of the documents.
22. Further the backdating of the documents is relevant to determining whether the RAA occurred which was in fact reasonable or not. This is relevant to the applicant’s claimed injury and a further fact in issue.
…
26. The Applicant submits that the objection as to relevance as made by the Commissioner is misplaced when considering the live issues for determination by the Tribunal.
27. Further the issue as to the question of liability to be determined before the Tribunal, including causation and RAA and the probative evidence which the applicant believes will be on the Commissioners file ought to be discovered as this is relevant and probative evidence used to support the decision that the assessment of the evidence is not unimportant, [but] do not meet the threshold for the definition of disclosable conduct.
28. Finally the Applicant contends that should the Tribunal refuse to discover the Commissioners file, then it will deny the applicant, the respondent and the Tribunal access to relevant and probative material.
[References removed.]
On 12 July 2023, the Commission provided written submissions in reply, maintain and reasserting its objection to production of internal documentation:
…
23. The Commission’s internally-generated documents (‘the Documents’) deal solely with assessment pursuant to s.17A(2) of the [Public Interest Disclosure Act 2012 (ACT)] PID Act by the Commission of matters relevant to determining whether or not the Commission should proceed to conduct an investigation. That assessment turned on whether or not the disclosure of alleged conduct constituted ‘disclosable conduct’ for the purposes of section 8 of the PID Act. The assessment neither required nor authorised the Commission to determine whether or not the conduct alleged by the Applicant in fact occurred. The only material relied upon by the Commission in making the assessment was that provided by the Applicant via the Human Rights Commission.
24. As such, contrary to the applicant’s submissions at paragraph 17, the Documents have no relevance whatsoever in terms of rationally affecting, directly or indirectly, the assessment of the probability of the existence of a fact in issue, whether that is ‘the cause of her claimed condition’ (paragraph 11 of the Applicant’s submissions); ‘the question of backdating’ (paragraph 15 of the Applicant’s submissions); that ‘the dates approving dental treatment were … backdated’ (paragraph 23 of the Applicant’s submissions); or ‘the issue of causation’(paragraph 25 of the Applicant’s submissions).
…
36. Again the Commission confirms that the Commissioner made no findings: the Applicant’s disclosure was simply assessed in accordance with section 17A(2) of the PID Act. The Commission submits that whether or not the conduct alleged by the Applicant constitutes ‘disclosable conduct’ for the purposes of section 8 of the PID Act has no relevance whatsoever to ‘the question of backdating’.
[Original emphasis.]
The ACT informed the Tribunal it supports and endorses the Commission’s 12 July 2023 submissions, in particular paragraphs 3, 21, 23 and 24, and it would not otherwise make submissions addressing the objection.
Principles
The principles to be applied when dealing with objections of the kind the Commission has made are well established.
In a case of the present kind, the ambit of relevant matters is framed by the scope of the Tribunal’s review of the reconsideration decision on 10 August 2022 which affirmed the determination refusing Ms Kuchlmayr’s 2nd claim. Consequently, the Tribunal must determine whether:
(a)Ms Kuchlmayr suffered a ‘disease’ for the purposes of s 5B of the SRC Act, being an ‘ailment’ to which her employment contributed to a significant degree, in the circumstances of her claim; and if so;
(b)Ms Kuchlmayr suffered the ‘disease’ as a result of reasonable administration undertaken in a reasonable manner in respect of her employment for the purposes of s 5A of the SRC Act.
In order to do so, the Tribunal will be required to make relevant factual findings in a logically probative manner on the relevant materials placed before it.
It is in this context the Tribunal’s summons power in s 40A(1)(b) of the AAT Act has arisen in this case:
(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.
As can be seen, the power is not at large and it is expressly for the purposes of a proceeding before the Tribunal.
Under s 39(1) of the AAT Act, the Tribunal must ensure each party to a proceeding is given a reasonable opportunity to present their case. For this purpose, each party is entitled to prepare their case on the basis of an evidentiary mosaic constructed from materials of relevance to which access has been granted for the purposes of the proceedings.[13] There is no proper basis to narrow the entitlement to materials of direct or substantive relevance. While that threshold may be applicable in the hearing of an application, when considering the admission of evidence, a broader threshold applies to the discovery of relevant materials in the preparation of a case. The applicable threshold is one of apparent or adjectival relevance.[14]
[13] Lakatoi Universal Pty Limited and Ors v Walker and Ors [1998] NSWSC 470 at 497.
[14] BrisConnections Finance Pty Ltd (Receiver and Manager Appointed) v Arup Pty Ltd [2016] FCA 906 at [25].
The threshold of apparent relevance involves two considerations:
(a)whether there is a real possibility that the documents could reasonably be expected to throw light on some of the issues in the principal proceedings[15] and may assist in the resolution of the issues in the proceedings;[16] and
(b)whether there is reason to suppose that the documents will be capable of being used as evidence or for a legitimate forensic purpose in cross-examination, [17] such 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]
[15] Trade Practices Commission v Arnotts Pty Ltd & Ors [1989] FCA 248 at [41].
[16] Comcare v Maganga [2008] FCA 285 at [37].
[17] Hunt v Wark (1985) 40 SASR 489 per King CJ at [493].
[18] Wong v Sklavos [2014] FCAFC 120 at [12].
Consideration
As will appear, I am satisfied the Commission’s objection should be upheld.
The submissions made for Ms Kuchlmayr in response to the Commission’s objection lack substance.
Ms Kuchlmayr has not provided any substantive or persuasive submission or supporting material on which it would be reasonable to reject the information provided by the Commission, namely that the Commission:
(a)assessed Ms Kuchlmayr’s disclosure for the purposes of s 17A(2) of the Public Interest Disclosure Act 2012 (ACT) (PID Act) on the information it was given;
(b)the Commission did not collect any evidence;
(c)the Commissioner was satisfied:
(i)no ‘corrupt conduct’ was established for the purposes of s 9 of the Integrity Commission Act 2018 (ACT) (IC Act); and
(ii)the disclosure was not ‘disclosable conduct’ under s 8 of the PID Act;
(d)consequently, the Commission had no power under the PID Act or lawful authority to and did not investigate the disclosure;
(e)no investigation was conducted into the disclosure under the IC Act;
(f)the internally-generated documents under objection deal solely with the threshold assessment under s 17A(2) of the PID Act; and
(g)the assessment under s 17A(2) of the PID Act did not require or authorise the Commission to determine whether or not the conduct alleged by Ms Kuchlmayr in fact occurred.
The proposition in paragraph 13 of Mr Prail’s 5 July 2023 written submissions, the Commissioner investigated the assertions made by Ms Kuchlmayr, is not made out. I am satisfied no such investigation was undertaken. It can be accepted the Commission assessed Ms Kuchlmayr’s disclosure under s 17A(2) of the PID Act and the Commissioner was satisfied it did not meet the threshold of ‘disclosable conduct’ in s 8 of the PID Act. Ms Kuchlmayr’s disclosure was not, therefore, a ‘public interest disclosure’ for the purposes of s 17A(3) of the PID Act. Consequently, the Commissioner’s investigation and referral obligations under s 19(2) of the PID Act were not engaged and the Commissioner was not authorised to investigate Ms Kuchlmayr’s assertions.
I accept the documents generated internally by the Commission when assessing Ms Kuchlmayr’s disclosure under s 17A(2) of the PID Act may well contain opinions of Commission officers in respect of threshold considerations. Anything less would be surprising. The submissions made for Ms Kuchlmayr do not set out any persuasive reason why such opinions about the assessment of the information provided by Ms Kuchlmayr under the definition of ‘disclosable conduct’ would be relevant, even adjectivally, to any issue the Tribunal must decide or to any factual finding the Tribunal will be relevantly called upon to make in these proceedings.
I am satisfied the Commission’s internally-generated documents are unlikely to be relevant to the factual questions Mr Prail has posed in respect of back-dating dental health records in ACT Health or to the assertion of fraud Ms Kuchlmayr referred to in her compensation claim form. The threshold question posed by s 17A(2)(a) is in respect of ‘disclosable conduct’ as defined in s 8 of the PID Act. The legislative threshold does not require the Commission to determine if the conduct in fact occurred, rather it requires the Commission to decide if the character of the alleged conduct meets the definition of ‘disclosable conduct’. On the Commission’s information, a negative conclusion was drawn from the information provided and Ms Kuchlmayr was notified of this decision, whereupon the matter was closed.
I note the thresholds of ‘disclosable conduct’ in s 8 of the PID Act and ‘corrupt conduct in s 9 of the IC Act are likely to be different to and significantly higher than the thresholds applying to a breach of administrative procedures under standard operating policies of ACT Health. To the extent Ms Kuchlmayr’s case raises factual questions relating to the back-dating of clinical records or the circumstances in which this occurred, I am not persuaded any opinions of Commission officers which might be recorded in internally-generated documents within the Commission’s holdings would be relevant, even remotely, when determining if the alleged conduct actually occurred and, if so, in what circumstances.
In conclusion, the Commission’s objection to production of internally-generated documents relating to s 17A(2) of the PID Act is upheld. Ms Kuchlmayr’s submissions are not made out.
There is one further matter I should address. In submissions dated 23 May 2023, the Commissioner asserted the 27 April 2023 summons was in excess of power and an abuse of process. These submissions cannot be accepted.
The Commissioner purported to quote s 40 A of the AAT Act:
… the AAT may issue a summons pursuant to s 40A of the [AAT Act] upon request ‘for any …documents that will be relevant to the review of the decision’ (emphasis added)…
The purported quote is not consistent with the statutory text of s 40A(1), which provides an authorised member or officer of the Tribunal may summons a person to produce any document or other thing specified in the summons.
The Tribunal’s summons power under s 40A(1) of the AAT Act is not constrained in the manner for which the Commissioner contends. While the scope or ambit of a summons for production of documents may be challenged by objection and set aside on grounds of relevance, the discretion to summons the production of documents is wide. The breadth of terms used in the summons sealed by the Tribunal on 27 April 2023 is not in excess of power.
The question whether it amounts to an abuse of the Tribunal’s process is a separate matter. The principled foundation of abuse of process was discussed by Hill J in Re Trade Practices Commission v Kimberley Homes Pty Limited:[19]
11. It is a well-accepted rule that a subpoena may be set aside as oppressive and as an abuse of the process of the court if it requires the production of documents which are manifestly irrelevant to the issues between the parties…
12. That rule is but an illustration of the wider rule that a subpoena will always be set aside if it is shown to be an abuse of the court's process...
[19] [1989] FCA 262.
More specifically, the concept of abuse of process involves purpose and consequence. An abuse of process might arise where a summons is not used for a legitimate forensic purpose in proceedings[20] or where it is oppressive, such that it is ‘seriously and unfairly burdensome, prejudicial or damaging’ and ‘productive of serious and unjustified trouble and harassment’.[21]
[20] Roberts-Smith v Fairfax Media Publications Pty Limited (No 42) [2023] FCA 750 at [27].
[21] Hamilton v Oades [1989] HCA 21, per Deane and Gaudron JJ at [8].
I am satisfied there is no abuse of the Tribunal process in the present circumstances. Ms Kuchlmayr’s request for the Tribunal to exercise power under s 40A(1) was for a legitimate forensic purpose in the proceedings. The scope of the summons request, once clarified by Mr Prail, was not so broad it included documents which were manifestly irrelevant. It has not been suggested by the Commission the summons was oppressive or likely to prejudice the Commission. Even though I have concluded the Commission’s internally-generated documents are not likely relevant, so much was not clear or apparent when the summons request was made and it appears to me Ms Kuchlmayr’s case pressing for production of such documents was at least arguable, albeit the submissions made apparently proceed on a misconception of the information provided by the Commission in respect of the assessment it undertook and the thresholds it applied.
Decision
Objections upheld.
53. I certify that the preceding 52 (fifty-two) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member.
................[SGD]..........................
Associate
Dated: 1 August 2023
Objection decided on the papers
Date final submissions received
13 July 2023
Solicitor for Applicant:
Mr D Prail, Prail Lawyers
Solicitor for Respondent:
Mr A Ghaleb, McInnes Wilson Lawyers
Solicitor for the ACT Integrity Commission
Ms A Belkin, ACT Integrity Commission
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