NJCX and Comcare (Compensation) - [2023] AATA 2677

NJCX and Comcare (Compensation) [2023] AATA 2677 (22 August 2023)
Division:GENERAL DIVISION
File Number(s): 2020/6640
Re:NJCX
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Mr S. Webb, Member
Date:22 August 2023
Place:Canberra

Objections upheld. Summons application refused. Liberty to revise and narrow application.
................[Sgd]...................................................
Mr S. Webb, Member
Catchwords

PRACTICE AND PROCEDURE – review of decision refusing compensation claim in respect of alleged injury – psychological ailment – application for summons – objections – relevance – scope – discretion – Tribunal objectives – proximity to substantive hearing – broad scope not justified by legitimate forensic purpose – objections upheld – discretion not exercised – application refused

Legislation
Administrative Appeals Tribunal Act 1975 ss 2A, 33, 39, 40A
Safety, Rehabilitation and Compensation Act 1988 ss 4, 5A, 5B, 14
Cases
Abrahams v Comcare [2006] FCA 1829

BrisConnections Finance Pty Ltd (Receiver and Manager Appointed) v Arup Pty Ltd [2016] FCA 906

Comcare v Maganga [2008] FCA 285
Comcare v Muir [2016] FCA 346
Hunt v Wark (1985) 40 SASR 489
Kennedy v Comcare [2014] FCA 82
Lakatoi Universal Pty Limited and Ors v Walker and Ors [1998] NSWSC 479
Szabo v Comcare [2012] FCAFC 129
Trade Practices Commission v Arnotts Ltd & Ors [1989] FCA 248
Wong v Sklavos [2014] FCAFC 120
Wonson v Comcare [2020] FCAFC 76
REASONS FOR DECISION
Mr S. Webb, Member
22 August 2023

NJCX claimed compensation in respect of an alleged injury in her employment by the Australian Rail Track Corporation (ARTC). Comcare decided to refuse her claim. This decision was affirmed on reconsideration. NJCX lodged an application for review of the decision by the Tribunal.
In the course of the resulting proceedings, NJCX applied to summons records of the ARTC. A summons was sealed and issued. The summons was served on the ARTC shortly before the date for production. ARTC applied for an extension of time to comply with the summons, pending resolution of issues relating to the time and cost of compliance. Negotiations ensued between NJCX and the ARTC. Months passed without resolution of the compliance issues. The matter was referred to me and I heard the parties and the ARTC in an interlocutory hearing. In the result, the summons was vacated and NJCX was provided an opportunity to make a fresh summons application with revised terms.
NJCX provided proposed terms of a summons application to the Tribunal, the Respondent and the ARTC. The Respondent and the ARTC objected to the terms of the application. It is these matters, alone, which are the subject of this interlocutory decision.

Facts

On 7 May 2018, NJCX was offered and accepted employment by the ARTC.[1] The contract of employment was subject to a 6 month probationary period.
[1] T7.
On 18 October 2018, NJCX’s employment was terminated, within the probationary period.[2]
[2] T13.
On 28 April 2020, NJCX lodged a claim for compensation in respect of an alleged psychological injury for which medical treatment was first sought on 22 October 2018 from…

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 NJCX and Comcare (Compensation)

Details

AGLC: NJCX and Comcare (Compensation) [2023] AATA 2677
Case: [2023] AATA 2677
Decision Date: 22 August 2023

CaseChat Overview and Summary

This matter concerned an application for a summons by NJCX, who sought compensation from Comcare for a psychological ailment. The application was made to the Administrative Appeals Tribunal (AAT).

The primary legal issue before the AAT was whether to grant the application for a summons, which would compel the production of certain documents. The Tribunal was required to consider the relevance and scope of the documents sought, and whether their production was justified by a legitimate forensic purpose, in light of the Tribunal's objectives and the proximity of the substantive hearing.

The Member, Mr S. Webb, reasoned that while the Tribunal has broad powers to gather information, this discretion must be exercised judiciously and for a legitimate forensic purpose. In this instance, the Member found that the broad scope of the summons sought was not justified by a legitimate forensic purpose, particularly given the proximity of the substantive hearing. Accordingly, the objections to the summons were upheld, and the discretion to issue the summons was not exercised.

The application for the summons was refused.

Orders