Le and Comcare
[2014] AATA 634
•29 August 2014
[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
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.
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.
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 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 …
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
By email on 28 July 2014 Mr Le again raised the issue of why the Tribunal had accepted Comcare’s request that all his medical files be summoned despite his “Letter of Objection” submitted on 13 February 2014.
On 15 August 2014 I held a Directions Hearing by telephone to consider Mr Le’s objection to his medical records being summoned. During the hearing I advised Mr Le that the Tribunal had already decided that the summonses had been properly issued and that I could not review that decision. Further, I advised him that it was open to him to apply to the Federal Court in respect of the Tribunal’s decision.
At the conclusion of the Directions Hearing I advised Mr Le that I proposed to issue a direction which would give him leave from and including the 18 August 2014 to inspect the medical records produced, and which would give Comcare leave to inspect the documents from and including 25 August 2014. I advised him further that after he inspected the documents he could object to part or all of those documents being inspected on behalf of Comcare, but that he needed to make his objection within the seven day period before Comcare had leave to inspect. Mr Le informed me that he did not intend to inspect the documents.
On 15 August 2014 I issued a direction to the parties in the terms referred to in the preceding paragraph. A copy of this direction was forwarded to Mr Le’s email address on that date.
THE PRESENT APPLICATION
On 19 August 2014 Mr Le wrote to the Tribunal in part in the following terms:
I, Phuc Le, as the Applicant, object and do not consent to any of my medical files to being kept by the AAT, even in a “safe”, as these documents were obtained outside the AAT’s jurisdiction.
I, Phuc Le, as the Applicant again submit a request that the AAT return all my medical files, which were unlawfully obtained and without my consent, to be returned immediately back to the respective Medical Centres by the 25th August 2014. I also request an apology from the AAT for having unlawfully obtained my medical files, without my consent, as this was a breach of my privacy and irrelevant to my case.
I, Phuc Le, as the Applicant again object for the Tribunal/Respondent to view/copy ‘any of my medical files’, or to take away any of my medical files from the Tribunal premises for viewing, which were unlawfully obtained and without my consent, to be returned immediately back to the respective Medical Centres by the 25th August 2014. I also request an apology from the AAT for having unlawfully obtained my medical files, without my consent, as this was a breach of my privacy and irrelevant to my case.
On receipt of Mr Le’s email Comcare’s leave to inspect the documents was suspended.
As Mr Le’s objection to the issue of the summonses had been previously considered on two occasions, it was appropriate to deal with this application as an application to revoke the direction that Comcare have leave to inspect the documents produced.
On 29 August 2014 I held a further Directions Hearing by telephone. At that hearing Mr Le reiterated the arguments he stated in his email of 19 August 2014 and which he had previously advanced at the Directions Hearing on 15 August 2014. He informed me that he had not inspected the documents which had been produced and had chosen not to do so. Mr Le did not make any objection to any particular part or parts of the documents.
In Comcare v Maganga [2] the Federal Court said, in part:
… A party seeking to inspect documents does not need to establish, on the basis of probabilities, that the documents will establish anything (Trade Practices Commission v Arnotts (No 2) [1989] FCA 248; (1989) 21 FCR 306 per Beaumont J; Telstra Corporation at [47], [52] per Graham J). Rather, the test of relevance is whether the documents relate to the proceedings such that there is a real possibility that they may assist in the resolution of issues in the proceedings (Waind per Moffitt P at 384; Bailey v Beagle Management Pty Ltd [2001] FCA 60; (2001) 105 FCR 136 at [26]).
Further, the test of relevance for the purpose of inspection is not confined to whether the documents in question will or may establish an inconsistent statement by a witness giving evidence in the proceedings or whether the documents themselves will prove a fact in issue. The Court may allow documents to be inspected if they are apparently relevant or are on the subject matter of the litigation (Maronis Holdings Ltd v Nippon Credit Australia Ltd [2000] NSWSC 138; (2000) 18 ACLC 609 per Bryson J at [20]) or if they might be used for a legitimate forensic purpose in cross-examination (Maronis at [18], [20]; Carter v Hayes SM (1994) 61 SASR 451 at 453, 456-457 per King CJ, Bollen and Mullighan JJ agreeing; R v Spizzirri [2001] 2 QdR 686 at [24] per Pincus JA, White J agreeing). ...[3]
[2] [2008] FCA 285.
[3] At paras 37 and 38.
One of the issues before the Tribunal is whether Mr Le suffered the condition described as an “anxiety disorder” which was contributed to, to a significant degree, by his employment by the Commonwealth. I am not satisfied that there is any reason why Comcare should not have leave to inspect the medical records produced to the Tribunal. The records relate directly to Mr Le’s state of health prior to and after his suffering the alleged injury. They also relate in part to the treatment he has received in relation to the alleged injury.
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.
I certify that the preceding 22 (twenty -two) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance. ..........................[sgd]..............................................
Associate
Dated 3 September 2014
Date of directions hearing 29 August 2014 Applicant In person Solicitors for the Respondent L Woolley; Sparke Helmore
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