McKenzie and Comcare (Compensation)

[2023] AATA 1384

McKenzie and Comcare (Compensation) [2023] AATA 1384 (29 May 2023)

Division:GENERAL DIVISION

File Number(s):      2022/5883

Re:Shannon McKenzie

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:The Hon. John Pascoe AC CVO, Deputy President

Date:29 May 2023

Place:Sydney

The Tribunal orders that the summonses be issued pursuant to the powers of the Tribunal under section 40A(1)(b) and that the Applicant and the Respondent have leave to inspect any documents produced pursuant to section 40B of the Administrative Appeals Tribunal Act 1975 (Cth).

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

The Hon. John Pascoe AC CVO, Deputy President

CATCHWORDS

PRACTICE AND PROCEDURE - objection by the Applicant to the issue of summons and the Respondent’s inspection of material produced under summons – relevance of the material produced under summons to issues raised by the reviewable decision – privacy of applicant – objections disallowed.

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) ss 40A, 40B

Safety, Rehabilitation and Compensation Act 1988 (Cth) section 14

CASES

Cosco holdings Pty Ltd v Commissioner of Taxation [1997] FCA 1504

Comcare v Maganga (2008) 101 ALD 68

Lakatoi Universal Pty Ltd v Walker [1998] NSWSC 407

National Employers’ Mutual General Association Limited v Waind and Hill [1979] HCA 11

Hearne and Street [2008] 235 CLR 125

REASONS FOR DECISION

The Hon. John Pascoe AC CVO, Deputy President

29 May 2023

BACKGROUND

1. I note the Respondent’s written submissions contain a helpful factual summary of the matter, much of which is replicated below.

2. By way of application filed 16 May 2022, the Applicant seeks a review of a decision of the Respondent dated 16 May 2022 to refuse her claim for compensation for psychological injury under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act).

3. On 29 March 2023, the Respondent requested that summons be issued to various medical practices in relation to the Applicant. The documents sought to be summonsed were as follows:

   All medical records, reports, letters of referral, specialists' reports, treatment providers' 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, clinical notes, correspondence and treatment cards held at the practice relating to Shannon McKenzie

4. Upon receiving notification of the proposed summonses, the Applicant objected to their issuing, in summary, on the basis of concerns for her privacy, and because Comcare did not attempt to collect all the relevant information at the time of the reviewable decision being made.

   ISSUE

5. The issue before the Tribunal is whether it should exercise its power under section 40A(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth), (AAT Act) to summon a person to produce any document specified in the proposed summons.

6. If the Tribunal finds that the power in section 40A(1)(b), it must then decide whether to exercise its power under section 40B(1) and give leave to the Respondent to inspect the documents produced under summons.

   DISCUSSION

7. In this case, the substantive issue is whether the Applicant is entitled to compensation under Section 14 of the SRC Act. The summonses relate to that application.

8. The Tribunal’s power to issue summonses is contained in section 40A(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth), which states as follows:

   Section 40A:

   (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:

   b.    produce any document or other thing specified in the summons;

9. Section 40B(1) of the Act gives the Tribunal power to give leave to a party to inspect a document produced under summons.

10. As a general principle the documents requested by the summons must be relevant to the Tribunal’s review of the decision in question and determination of the question at issue.

11. It is not necessary that the documents sought are conclusive of anything. Rather the test is that there is a real possibility that they will assist the Tribunal in reaching the correct and preferable decision in the matter.

12. The procedure in the Tribunal is properly in line with the procedure used in the courts, as approved in Cosco holdings Pty Ltd v Commissioner of Taxation [1997] FCA 1504.

13. In determining the question of relevance, the Tribunal is guided by Comcare v Maganga (2008) 101 ALD 68, in that there must be a real possibility that the documents sought may assist in the resolution of issues in the proceedings.

14. In determining the question of relevance in the proceedings the Tribunal also must take into account that documents may be used for a legitimate forensic purpose in cross examination. In that regard Rolf J stated in Lakatoi Universal Pty Ltd v Walker [1998] NSWSC 407:

    In determining the question of relevance the Court must bear in mind that the parties are entitled to build up an evidentiary mosaic. Generally that cannot be done, particularly in complicated commercial litigation, by the tender of one piece of evidence or the assertion that only limited material is relevant to the issues involved.

15. There are three forensic steps to be taken when the Tribunal issues a summons. These were summarised in the case of National Employers’ Mutual General Association Limited v Waind and Hill [1979] HCA 11:

    There are at least two steps in the procedure of having a third party bring documents to court, and in their use thereafter. Indeed, on a correct view, there are three steps. The first is obeying the subpoena, by the witness bringing the documents to the court and handing them to the judge. This step involves the determination of any objections of the witness to the subpoena, or to the production of the documents to the court pursuant to the subpoena. The second step is the decision of the judge concerning the preliminary use of the documents, which includes whether or not permission should be given to a party or parties to inspect the documents. The third step is the admission into evidence of the document in whole or in part; or the use of it in the process of evidence being put before the court by cross-examination or otherwise. It is the third step which alone provides material upon which ultimate decision in the case rests. In these three steps the stranger and the parties have different rights, and the function of the judge differs.

16. In determining the issue before the Tribunal, the Tribunal stands in the shoes of the original decision maker, and in making its decision it will have regard to all of the relevant evidence available to it.

17. The evidence also needs to be considered by the parties, and in particular, the Respondent must know the case that it is required to meet. It is relevant that the Applicant in her emails of 29 March 2023 stated as follows ‘I will provide my own medical records to Tribunal to prove the decision was indeed incorrect’ and went on to say ‘Comcare should not be adding medical information after the date of decision’.

18. Clearly if it is open to the Applicant to provide such information to the Tribunal as part of her case, it must be open to the Respondent to see the evidence and to be able to respond to it with medical evidence of its own. Indeed, it is difficult to see how the Tribunal could reach the ‘correct and preferable decision’ if this were not the case.

19. In deciding whether or not to issue the summons, the Tribunal does not have to accord weight to any of the information being sought. Rather, all that is necessary is the information has relevance to the task of the Tribunal, which will allocate weight to the evidence based on its probative value which is to be established at the hearing, including by the proper process of cross examination.

20. Proper diagnosis of the Applicant’s ailment for the purposes of the legislation is central to the task of the Tribunal in reaching the correct and preferable decision.

21. For the Respondent to be able to prepare a case in relation to the claim that the Applicant has suffered an ailment or an aggravation of an ailment for the purposes of section 14 of the SRC Act, the Applicants medical history would appear to be of significant importance.

22. I note that the Applicant has raised concerns as to her medical records being accessed, including concerns about confidentiality. In this regard, I note that there are limitations on how the Respondent can use such information and these were set out by Hayne, Heydon and Crennon JJ in the case of Hearne and Street [2008] 235 CLR 125, where their Honours said as follows:

    Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence.

23. In other words, the information cannot be used for purposes other than the proceedings before the Tribunal, without an appropriate order, either from the Tribunal or a Court.

24. I note that the Applicant did not appear at the interlocutory hearing, despite numerous attempts on the part of the Tribunal to contact her prior to the hearing. On the previous occasion where this matter was scheduled to be heard the matter did not proceed at the request of the Applicant, who claimed to be unwell. The Applicant was told that on the next occasion, which was the hearing of 15 May 2023, that the matter could proceed in her absence.

25. Any further delay is, in my opinion, unreasonable. Particularly as the written material before the Tribunal makes it clear that the information sought in the summonses are properly relevant to the Tribunal’s coming to the correct and preferable decision in the matter.

26. Accordingly, the Tribunal does not accept the Applicant’s objections to the issue of the summonses and orders that the summonses be issued pursuant to the powers of the Tribunal under section 40A(1)(b) and that the Applicant and the Respondent have leave to inspect any documents produced pursuant to section 40B of the AAT Act.

I certify that the preceding 26 (twenty - six) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President

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

Associate

Dated: 29 May 2023

Date(s) of hearing:	15 May 2023
Applicant:	In person
Solicitors for the Respondent:	Melissa Scriva