Le and Comcare

Case [2014] AATA 634

[2014] AATA 634

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2013/5830

Re

 Phuc Le

APPLICANT

And

Comcare

RESPONDENT

INTERLOCUTORY DECISION

Tribunal

Deputy President J W Constance
Date 29 August 2014
Date of written reasons 3 September 2014
Place Sydney

The Tribunal amends the Direction of 15 August 2014 to provide that Comcare’s leave to inspect the summoned documents commences on 11 September 2014.

..........................[sgd]..............................................

Deputy President J W Constance

Catchwords

PRACTICE AND PROCEDURE – summons – objection to inspection of material produced under summons – relevance – leave to inspect granted

Legislation

Administrative Appeals Tribunal Act 1975 (Cth) s 40

Cases

Comcare v Maganga [2008] FCA 385

REASONS FOR INTERLOCUTORY DECISION

Deputy President J W Constance

3 September 2014

INTRODUCTION

  1. In November 2013 Mr Le applied to the Tribunal for the review of a decision of Comcare which denied liability to pay compensation in respect of “an anxiety disorder consequent to workplace situation”.  The application is yet to be heard and decided.

  2. On 29 August 2014 I refused Mr Le’s request to set aside a direction of the Tribunal that Comcare have leave to inspect various medical records relating to Mr Le which had been produced to the Tribunal in response to summonses issued at the request of Comcare.

  3. I now provide in writing my reasons for dismissing Mr Le’s request.

    BACKGROUND

  4. Following a conference held by a Conference Registrar of the Tribunal, on 13 February 2014 Mr Le emailed the Tribunal objecting to the summonsing of “all” his medical records on privacy grounds.  At the time the issue of such summonses had not been requested.

  5. In the same email Mr Le wrote:

    I am willing to provide ALL my medical records within a reasonable period before my date of injury and after.  Specific dates of which can be established by way of further discussion and negotiation.  (Original emphasis).

  6. On 18 February 2014, at the request of Comcare, the Tribunal issued a summons to produce documents to each of the following:

    ·Mr James Crawford

    ·Yarralumla Surgery

    ·Foundation Healthcare Erindale

    ·Dr Minh Nhut Ho

    Each of the summons requested production of the following:

    All medical records, reports, letters of referral, specialists’ reports, social workers’ reports, rehabilitation reports, pathology reports, all reports and images arising from or otherwise relating to any diagnostic test whatsoever, including but not limited to x-ray, CT and/or MRI images taken for any purpose including but not limited to investigative, comparative and secondary tests, speech therapists’ reports, occupational therapists’ reports, clinical notes, correspondence and treatment cards and all paper files and archived files relating to Phuc Le …

  7. On 21 February 2014 Mr Le sent an email to the Tribunal which included the following:

    I wish to advise you that I would like to retract this objection to obtain my medical records.  Therefore the AAT can summon my medical records as per conference discussion on Thursday 13 February 2014

  8. Between 5 March 2014 and 20 March 2014 the various persons and organisations produced the summoned records relating…

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Le and Comcare [2014] AATA 634
Case
[2014] AATA 634
Decision Date

CaseChat Overview and Summary

The case of Le and Comcare involved Phuc Le, who objected to the summons of his medical records by the Australian Administrative Appeals Tribunal (AAT). Comcare, the respondent, had sought the records for a review of a workers' compensation claim. The primary issue before the AAT was whether Comcare should be granted leave to inspect the medical records produced under the summons, despite Le's objection. Le argued that the records were irrelevant and had been summoned without his consent. The AAT had to decide if Comcare's need for the records outweighed Le's privacy concerns.

The AAT considered its statutory authority to issue summons under section 40 of the Administrative Appeals Tribunal Act. The court noted that the information sought was necessary for the hearing of the proceeding and that failure to comply with a summons could result in penalties. The AAT applied the test established by the Federal Court to determine whether Comcare should be granted leave to inspect the documents. The test considered whether the documents were relevant to the proceeding, whether they could be obtained by other means, and whether there was a legitimate reason for withholding them.

The AAT concluded that Comcare should be granted leave to inspect the summoned documents. It found that the records were relevant to the proceeding and that Comcare's need for the information outweighed Le's privacy concerns. The AAT amended its direction to allow Comcare's inspection of the documents to commence on a specified date. The court's decision emphasised the importance of balancing privacy rights with the need for information in administrative proceedings.

The final order of the AAT was to amend the direction dated 15 August 2014, to allow Comcare's leave to inspect the summoned documents to commence on 11 September 2014. This decision provided clarity on the AAT's power to issue summons and the criteria for granting leave to inspect documents in administrative proceedings.

Orders

Orders of the court

The Tribunal amends the Direction of 15 August 2014 to provide that Comcare’s leave to inspect the summoned documents commences on 11 September 2014.

Background

Background to the litigation

I now provide in writing my reasons for dismissing Mr Le’s request.BACKGROUND Following a conference held by a Conference Registrar of the Tribunal, on 13 February 2014 Mr Le emailed the Tribunal objecting to the summonsing of “all” his medical records on privacy grounds. At the time the issue of such summonses had not been requested. In the same email Mr Le wrote:I am willing to provide ALL my medical records within a reasonable period before my date of injury and after. Specific dates of which can be established by way of further discussion and negotiation. (Original emphasis). On 18 February 2014, at the request of Comcare, the Tribunal issued a summons to produce documents to each of the following:·Mr James Crawford·Yarralumla Surgery·Foundation Healthcare Erindale·Dr Minh Nhut HoEach of the summons requested production of the following:All medical records, reports, letters of referral, specialists’ reports, social workers’ reports, rehabilitation reports, pathology reports, all reports and images arising from or otherwise relating to any diagnostic test whatsoever, including but not limited to x-ray, CT and/or MRI images taken for any purpose including but not limited to investigative, comparative and secondary tests, speech therapists’ reports, occupational therapists’ reports, clinical notes, correspondence and treatment cards and all paper files and archived files relating to Phuc Le … On 21 February 2014 Mr Le sent an email to the Tribunal which included the following:I wish to advise you that I would like to retract this objection to obtain my medical records. Therefore the AAT can summon my medical records as per conference discussion on Thursday 13 February 2014 Between 5 March 2014 and 20 March 2014 the various persons and organisations produced the summoned records relating to Mr Le. On 13 March 2014 Mr Le advised the Tribunal that he objected to having all his medical files summoned. The following are extracts from reasons given by Tribunal Member Senior Member Creyke on 13 May 2014 which set out the subsequent action taken in relation to the summonses:19. [On 14 March 2014] the Tribunal advised the respondent that following Mr Le’s objection to the inspection of any of his medical records obtained under summons, inspection of the documents was suspended pending the outcome of a hearing on the issue. 20. On 17 March 2014, Mr Le confirmed that he did not consent to any of his medical files being viewed, copied or shared with anyone. He also requested advice of whether any of the medical records had been received and if so, where they were being held… 21. In response the Tribunal advised Mr Le that the documents which had been received were being held in a secure safe and would not be accessed by anyone until the issues relating to the documents were resolved.…22. On 18 March 2014, Mr Le was asked by the Tribunal to notify it of a suitable date for a directions hearing to discuss issues which had arisen and to determine a timetable for progressing the matter. 23. On 19 March 2014, Mr Le advised the Tribunal that he had authorised his wife to collect the medical records received to date under summons and to remove them from the Registry. The Tribunal responded that day by email advising Mr Le that the documents were required to be retained by the Tribunal until the issues concerning them had been resolved or the matter was withdrawn. The providers of summons material are advised that they can elect to have the material returned to them or destroyed at the conclusion of the matter. Until then the documents are retained by the Tribunal. 24. Mr Le emailed the Tribunal to provide him with copies of the summons documents and the legislative provisions which supported the Tribunal’s authority to retain the documents. The Tribunal responded on 20 March 2014 advising Mr Le that it had sent him, by post, a copy of the summons issued by the Tribunal and those provisions in the AAT Act used generally by the Tribunal when reviewing applications in the workers compensation jurisdiction. …30. … After some further correspondence the directions hearing was set down for 8.30am on 3 April 2014.…32. On 30 March 2014, Mr Le advised the Tribunal that rather than confining the directions hearing on 3 April 2014 to the issue concerning the extent of the statement of issues (the jurisdiction issue), the issue of the summons material, and the request for an extension of time, he proposed a number of other issues. These were:…• The Tribunal summoned the Applicant’s medical files without the Applicant’s consent or despite the Applicant’s objection.…• The Tribunal validated the Respondent’s request to summon all of the Applicant’s medical files, which are clearly not what the Applicant raised with the Tribunal (AAT) on the 23 November 2013 to have reviewed. Therefore these are irrelevant to the Applicant’s case in seeking a review with the Tribunal. …34. At 9.00am on 3 April 2014, the directions hearing commenced. At the hearing were Mr Le, Ms Le, and the representative for the respondent. The Tribunal was presided over by Senior Member Creyke. Also present was her associate who took notes of the hearing. …36. The Tribunal notes that it has power to issue summons. That power is set out in section 40 of the Act which states that:... [F]or the purposes of the hearing of a proceeding before the Tribunal, the member presiding at the hearing, the Registrar, a District Registrar or a Deputy District Registrar may summon a person to appear before the Tribunal at that hearing: ...(c) to produce any books, documents or things in the possession, custody or control of the person or persons named in the summons that are mentioned in the summons.37. As the nature and date of occurrence of the injury suffered by Mr Le are issues which have to be decided by the Tribunal it is information needed ‘for the purposes of the hearing of a proceeding before the Tribunal’ and is, therefore, information which can be subject to a summons. The Tribunal notes that anyone who fails to comply with a summons issued by the Tribunal has committed an offence the penalty for which is 30 penalty units (currently a fine of $5,100.00), or imprisonment for 6 months, or both.[1][1] Le and Comcare [2014] AATA 291

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Applying the test set out by the Federal Court, I am satisfied that Comcare should have leave to inspect the documents produced on summons.CONCLUSION The direction of the Tribunal will be amended to provide that Comcare’s leave to inspect the summoned documents commences on 11 September 2014.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.