Munday and Comcare
[2015] AATA 123
•5 March 2015
[2015] AATA 123
Division GENERAL ADMINISTRATIVE DIVISION File Numbers
2013/3342
Michael Munday
APPLICANT
And
Comcare
RESPONDENT
INTERLOCUTORY DECISION
Tribunal Dr James Popple, Senior Member
Date 5 March 2015 Date of written reasons 5 March 2015 Place Canberra Under s 40(1C) of the Administrative Appeals Tribunal Act 1975, the Tribunal authorises the District Registrar to refuse the applicant’s request of 9 February 2015 to issue a summons.
.............................[sgd]...........................................
James Popple, Senior Member
CATCHWORDS
PRACTICE AND PROCEDURE — Proceedings — Tribunal’s power to issue summons — whether requested summons is relevant — requested summons relates to events subsequent to claim — summons refused.
LEGISLATION
Administrative Appeals Tribunal Act 1975, s 40(1C)
Safety, Rehabilitation and Compensation Act 1988, ss 5A, 5B, 14
REASONS FOR DECISION
James Popple, Senior Member
5 March 2015
Summary
I authorise the District Registrar not to issue a summons as requested by the applicant. The summons would require the production of documents that are not relevant to this review.
Background
On 22 November 2012, Mr Michael Munday made a claim for workers’ compensation in relation to a period of employment with the Department of Human Services (the Department). On 4 March 2013, Comcare refused his claim, denying liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act). On 13 March 2013, Mr Munday sought reconsideration of that decision. On 13 May 2013, Comcare made a reconsideration decision that Mr Munday was not entitled to compensation. On 7 July 2013, Mr Munday applied to the Tribunal, under s 64 of the SRC Act and s 29(1) of the Administrative Appeals Tribunal Act 1975, for review of that decision.
In these proceedings, Comcare contends that this Tribunal should not be satisfied that Mr Munday’s ailment was contributed to, to a significant degree, by his employment as required by section 5B of the SRC Act. If the Tribunal is satisfied, the Respondent argues that the Tribunal should decide that the ailment resulted from reasonable administrative action taken in a reasonable manner, excluding it from the definition of ‘ailment’ in section 5A of the SRC Act.
The requested summons
On 9 February 2015, Mr Munday requested that a summons be issued, directed to the Secretary of the Department. The summons would require the production of documents including documents relating to an incident that occurred on 1 December 2014 and subsequent events, including action taken by the Department. 1 December 2014 was more than 18 months after Comcare made its reviewable decision.
At a directions hearing on 5 March 2015, I discussed the summons (and another summons) with Mr Munday and Comcare’s representative. Mr Munday says that the summons relates to an “ongoing case of institutional harassment that has occurred and which continues to damage my health and wellbeing”. Comcare does not oppose the issuing of the summons.
The relevance of the summons
The question to be resolved in this review is whether Comcare is liable, under s 14 of the SRC Act, to pay compensation to Mr Munday. The Tribunal has to make the correct or preferable decision having regard to the facts and circumstances as they are now. However, I do not think that the documents that the summons would require to be produced are relevant to those facts and circumstances.
Mr Munday asserts that he is the victim of continuing institutional harassment—or (in the terms of the SRC Act) administrative action that was neither reasonable nor taken in a reasonable manner. Even if that is true in relation to the 1 December 2014 incident and subsequent events, I do not think it is relevant to the administrative action with which this review is concerned, which occurred before Comcare made its reviewable decision. The documents that Mr Munday seeks relate to events that he says have aggravated his condition. They can only be relevant to a claim regarding those events.
For these reasons, it would not be appropriate to issue the summons.
I certify that the preceding 8 (eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member James Popple ..............................[sgd]..........................................
Associate
Dated 5 March 2015
Dates of hearing 5 March 2015 Applicant In person Counsel for the Respondent Mr Michael La Vista
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