O'Hara and Comcare (Compensation) - [2024] AATA 3152

O’Hara and Comcare (Compensation) [2024] AATA 3152 (4 September 2024)
Division:GENERAL DIVISION
File Number(s): 2023/9545
Re:Damon O’Hara
APPLICANT

ComcareAnd
RESPONDENT

INTERLOCUTORY DECISION
Tribunal:Mr S. Webb, Member
Date:4 September 2024
Place:Canberra

Objections not upheld. Subject to compliance with the confidentiality orders issued on 20 August 2024, Comcare is granted leave to inspect the documents produced by the Employing Agency forthwith.
.............................[SGD]...........................................
Mr S. Webb, Member
Catchwords
PRACTICE AND PROCEDURE – worker’s compensation – rehabilitation program – summons – objections to grant of access – legal professional privilege – ‘without prejudice’ objection – public interest disclosure – national security – relevance – disparagement – objections not made out
Legislation
Administrative Appeals Tribunal Act 1975 s 40B
Public Interest Disclosure Act 2013 s 20 and 21
Cases
Australian Competition and Consumer Commission v NSW Ports Operations Hold Co Pty Ltd [2020] FCA 1232
Comcare v Maganga [2008] FCA 285
Commonwealth Director of Public Prosecutions v Citigroup Global Markets Australia Pty Limited (No 3 – privilege claims) [2021] FCA 1208
Dowling v Ultraceuticals Pty Ltd [2016] NSWSC 386
Tallerman & Co Pty Ltd v Nathan’s Merchandise (Vic) Pty Ltd [1957] HCA 10
O’Hara and Comcare [2024] AATA 3013.
REASONS FOR DECISION
Mr S. Webb, Member
4 September 2024

Damon O’Hara applied for review of a reconsideration decision by Comcare to affirm a rehabilitation program determined by the Employing Agency.
In the course of the resulting proceedings, on 18 March 2024, Mr O’Hara requested the Tribunal to summons materials from the Employing Agency.
The requested summons was in the following terms:
All records relating to any work trail arranged for injured worker DAMON O’HARA, born XXX. Specifically included in this request (but not limiting its scope) is all correspondence, file notes, internal departmental chat, diary entries, meeting/ appointment records, etc., relating a proposed work trial with the Department of Climate Change, Energy Efficiency and Water (DCCEEW) in which Mr O’Hara was directed to attend the John Gorton Building at 9am on 4 September 2023, but which did not proceed (with last minute notification). Correspondence from DCCEEW regarding that cancellation is an essential element of this request.
On 19 March 2024, the Tribunal sealed and issued the summons requested by Mr O’Hara.
Following grant of an extension of time in which to comply with the summons, on 3 May 2024, the Employing Agency produced documents in compliance with the summons and lodged an application for confidentiality orders under s 35 of the Administrative Appeals Tribunal Act 1975 (AAT Act). The Employing Agency produced further documents on 10 May 2024 and 31 July 2024 and further applications for s 35 confidentiality orders (collectively Summons Documents).
Importantly, the Employing Agency, advised by the Australian Government Solicitor, redacted material it asserted is:
(a)not relevant;
(b)covered by legal professional privilege;
(c)attracts public interest immunity; and
(d)prohibited from disclosure under the Public Interest Disclosure Act 2013 (PID Act).
On 14 May 2024, the Tribunal made Interim Confidentiality Directions…

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 O'Hara and Comcare (Compensation)

Details

AGLC: O'Hara and Comcare (Compensation) [2024] AATA 3152
Case: [2024] AATA 3152
Decision Date: 4 September 2024

CaseChat Overview and Summary

In this matter before the Administrative Appeals Tribunal, the applicant, O'Hara, sought to resist Comcare's access to certain documents. Comcare had requested to inspect documents produced by the Employing Agency as part of a rehabilitation program, to which O'Hara objected on grounds including legal professional privilege, a 'without prejudice' communication, public interest disclosure, national security, relevance, and disparagement.

The Tribunal was required to determine whether O'Hara's objections to Comcare's access to the documents were valid and ought to be upheld. Specifically, the Tribunal had to consider the applicability of legal professional privilege, the nature of 'without prejudice' communications, and whether any public interest considerations, such as national security, or concerns about relevance and disparagement, justified withholding the documents.

The Member found that none of the objections raised by O'Hara were made out. The decision indicates that the Tribunal considered the grounds for objection and concluded that they did not provide a sufficient basis to prevent Comcare from inspecting the documents.

Consequently, subject to compliance with existing confidentiality orders, Comcare was granted leave to inspect the documents forthwith.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

This objection is not upheld.Decision Objections not upheld. Subject to compliance with the confidentiality orders issued on 20 August 2024, Comcare is granted leave to inspect the documents produced by the Employing Agency forthwith.

Ratio Decidendi

Legal Principle Established

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