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

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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading McKenzie and Comcare (Compensation)

Details

AGLC: McKenzie and Comcare (Compensation) [2023] AATA 1384
Case: [2023] AATA 1384
Decision Date: 29 May 2023

CaseChat Overview and Summary

The applicant, McKenzie, objected to the issue of a summons and the respondent, Comcare, inspecting material produced under that summons. The dispute concerned the relevance of the material sought by Comcare to the issues raised by the reviewable decision, and the applicant's privacy. The matter came before the Hon. John Pascoe AC CVO, Deputy President.

The primary legal issue before the Deputy President was whether the material sought by Comcare under the summons was relevant to the determination of the reviewable decision. This involved considering the scope of Comcare's investigative powers and the applicant's right to privacy in relation to the production of documents.

The Deputy President reasoned that the material sought by Comcare was relevant to the issues raised by the reviewable decision. The Deputy President applied the principle that a party seeking production of documents under a summons must demonstrate their relevance to the proceedings. In this instance, the Deputy President found that Comcare had sufficiently demonstrated the relevance of the requested material, and that the applicant's objections on grounds of privacy were not sufficient to outweigh the need for the material to be produced for the proper determination of the reviewable decision.

The objections by the applicant were disallowed.

Orders