O'Hara and Comcare (Compensation) - [2024] AATA 3013

O’Hara and Comcare (Compensation) [2024] AATA 3013 (2 July 2024)
Division:GENERAL DIVISION
File Number(s): 2023/9545
Re:Damon O’Hara
APPLICANT

ComcareAnd
RESPONDENT

INTERLOCUTORY DECISION
Tribunal:Mr S. Webb, Member
Date:2 July 2024
Place:Canberra

Objections refused. Inspection orders reinstated.
…[SGD]……………………………………………………………….
Mr S. Webb, Member
Catchwords
PRACTICE AND PROCEDURE – review of decision refusing compensation claim in respect of alleged injury – summons – objection to grant of leave to first inspect – relevant considerations – legal professional privilege – Commonwealth holds privilege – possibility of objectionable material – consideration of interests and procedural fairness – objections refused
Legislation
Administrative Appeals Tribunal Act 1975 ss 33, 35, 39, 40B
Safety, Rehabilitation and Compensation Act 1988 s 37
Cases
Gabriela and Chief Executive Officer, National Disability Insurance Agency [2024] AATA 741
NSW Council for Civil Liberties Inc v Classification Review Board (No. 1) [2006] FCA 1409
REASONS FOR DECISION
Mr S. Webb, Member
2 July 2024

On 30 November 2023, the Rehabilitation Authority (Employing Agency) determined a rehabilitation program for Mr O’Hara. The determination was reconsidered by Comcare and affirmed on 14 December 2023. The Applicant, Mr O’Hara, applied to the Tribunal for review of this decision.
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 [sic] 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.
Mr O’Hara provided the following explanation for his request:
Proceedings 2023/9545 relate to a rehabilitation program (‘program’) determined under SRC Act s 37. A key element of the program is the Rehabilitation Authority’s (‘Authority’) desire for the Applicant to undertake a work trial. Documents relating to prior work trials will assist the Tribunal to consider what prevented a previous work trial from occurring, and assist consideration of the decision under review which has, as its central objective, provisions for the Applicant to undertake a work trial.
In 2023 the Authority entered into discussions with another department (DCCEEW) to host the Applicant in a work trial. DCCEEW agreed initially, but withdrew on the day the trial was due to commence. Subsequently, the Authority has suggested that the Applicant ‘sabotaged’ the work trial. The Authority has not provided any evidence for arriving at this conclusion. Illuminating the difficulties in this work trial, in particular, will assist the Tribunal in its review, particularly as the program under review has a work trial as its central pillar.
On 19 March 2024, the Tribunal sealed and issued the summons requested by Mr O’Hara.
On 1 April 2024 and 15 April 2024, the Employing Agency applied for 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 also lodged a further application for s 35 confidentiality orders.
Importantly, the Employing Agency, advised by the Australian Government Solicitor, redacted and did not produce to the Tribunal documents in respect of which it claimed legal professional privilege.
On 14 May 2024, the Tribunal made Interim Confidentiality Directions under s 35 of the AAT Act in order to preserve the utility of the Employing Agency’s application until the application is decided, once the parties have been heard. Those matters remain on foot presently.
On 29 May 2024, the Tribunal issued orders under s 40B(1) of the AAT Act, granting the parties leave to inspect documents produced by the Principal Officer of the Rehabilitation Authority under summons. Mr O’Hara was granted leave to inspect the documents first, with Comcare being granted leave to inspect the documents produced thereafter, subject to objection.
On 31 May 2024, Comcare applied for suspension of the inspection orders on the grounds that Comcare should be granted first access to the documents produced:
The respondent respectfully requests it be granted first access to inspect the documents produced by the Principal Officer, Rehabilitation Authority (…). This would be the usual course as we understand it as the respondent may have claims for privilege and/or objections to raise.
Mr O’Hara opposed Comcare’s application.
The Tribunal directed the parties to provide written submissions ahead of an interlocutory hearing on 20 June 2024.
Each party provided written submissions.
Comcare’s objection to the inspection orders granting Mr O’Hara first access to inspect the documents produced proceeds on two primary grounds:
2.1 They deny the respondent the opportunity to identify any privileged or objectionable material prior to inspection
2.2 They subvert the usual process, where there are no grounds to do so.
The first ground was expressed in the following way:
13.2 The Employing Agency is not a party to the proceedings and is unlikely to be
fully apprised of the issues that are joined in the proceeding
13.3. The respondent separately may have grounds to object to the inspection of the documents produced. This may include claims for legal professional privilege, relevance, or abuse of process.
…
16. Comcare respectfully submits that given the likely volume of material and the fact that it comprises Commonwealth records, as opposed to independent third party records, the risk of legally privileged or otherwise objectionable material being disclosed is real and material such that Comcare should be given first inspection over the [Employing Agency] summonsed material.
Comcare developed the second ground in respect of ‘usual orders’ with reference to Gabriela and Chief Executive Officer, National Disability Insurance Agency (Gabriela)[1]:
17. As a secondary point, the Orders subvert what is often described as the ‘usual orders’, whereby first inspection is afforded to the non-summoning party. There is no apparent justification for that change in approach.
[1] [2024] AATA 741.
On 14 June 2024 Mr O’Hara provided written submissions in reply and contended:
Even if there were documents relevant to Comcare in the bundle, their presence would be substantially outweighed by the overwhelming probability that the bundles contain documents of much greater relevance to, and potentially subject to objection by, the Applicant rather than the Respondent.
Each party’s submissions were further developed in oral submissions during the interlocutory hearing.
In order to obtain some clarity about the Employing Agency’s privilege claims, I issued directions for Comcare to provide further information having consulted the Employing Agency and for Mr O’Hara to reply.
This was done. On 24 June 2024, Comcare provided the following information to the Tribunal and Mr O’Hara:
Following consultation with lawyers for the Employing Agency, Comcare can confirm its understanding that:
-The Employing Agency made redactions in respect of claims of legal professional privilege over documents which include Comcare employees and solicitors at AGS acting on behalf of Comcare.
-However, the Employing Agency is not in a position to confirm that there is no prospect of Comcare LPP material being present.
It is apparent from the consultation with the Employing Agency that there is material in the documents produced that includes correspondence to or from Comcare employees, and AGS lawyers acting for Comcare. To answer the two matters raised in the Tribunal’s Direction 1 of 20 June 2024:
a)Comcare’s position is that while the Employing Agency has redacted material for legal professional privilege, there may be material produced which is capable of attracting legal professional privilege
b)Comcare must have been consulted, because there are documents in the produced material which include Comcare employees and solicitors acting for Comcare.
In light of that further information, Comcare restates its position that it is appropriate for Comcare to be given first access to the documents produced by the Employing Agency.
Mr O’Hara promptly provided the following response:
The Respondent's position is that LPP material in the bundles have [sic] been redacted to an entirely adequate standard, although somewhere short of there being 'no prospect' of materials having 'slipped through' the previous review by the Commonwealth.
We say that this position is extraordinary. A hypothetical and remote possibility of the existence of a document with LPP having been missed by colleagues in the AGS. The claim is spurious and borders on an abuse of the Tribunal processes.
Having already delayed these proceedings by almost a month caviling with this fantasy, we urge the Tribunal to make inspection orders for the Applicant to review the documents as soon as possible.
However, if the Tribunal is minded to accept the Respondent's position, before granting access the Applicant suggests-- in order to preserve the status quo-- that the Employing Agency be given the opportunity to check to ensure that all LPP materials have been identified in the bundles.
In the further alternative, the parties should be given the opportunity to make an AAT Act section 45 request that this question, being a question of law, ought to be referred.
Considering all this, the following observations can be made.
There does not appear to be any disputation about the Employing Agency’s claims of legal professional privilege over the documents it identified and redacted or excluded from production. If there is any issue in respect of those claims, the issues should be crystallized and raised for consideration and determination. No such issue has been raised.
The proposition the Employing Agency could not “confirm that there is no prospect of Comcare LPP material being present” proceeds on the assumption Comcare might hold privilege separately from the Employing Agency, each being a separate emanation of the Commonwealth. This runs counter to the oral submissions counsel for Comcare, Mr Justin Davidson, made in the interlocutory hearing, correctly in my opinion, that the holder of any legal professional privilege is the Commonwealth. As I comprehend the submission, it proceeds on the understanding Comcare and the Employing Agency do not have a legal or juristic status independent of the Commonwealth. If this is correct, and I have no reason to draw any different conclusion on the present materials, the basis on which Comcare might assert privilege separately from the Employing Agency and the Commonwealth has not been established. Edmonds J considered matters of a similar kind in NSW Council for Civil Liberties Inc v Classification Review Board (No. 1)[2] and the conclusions drawn in [23] are presently compelling.
[2] NSW Council for Civil Liberties Inc v Classification Review Board (No. 1) [2006] FCA 1409 at [23].
On the information Comcare provided, the Employing Agency claimed privilege over “documents which include Comcare employees and solicitors at AGS acting on behalf of Comcare”. Comcare’s assertion that documents capable of attracting legal professional privilege might not have been identified is speculative. It invites the inference that the identification of documents capable of attracting legal professional privilege might not have been undertaken thoroughly by those charged with that task, namely the Employing Agency’s legal advisor: the Australian Government Solicitor.
Whether or not the information Comcare provided from the Employing Agency supports a logical inference that Comcare was consulted about work trials within the terms of the summons, or that related communications occurred between the Employing Agency and Comcare, does not advance the matter. Arguing about such matters is not of assistance. Even if such an inference is drawn, it does not lead to any different conclusion on the point of privilege. Simply put, the Employing Agency’s claims of legal professional privilege are claims vested in the Commonwealth. They expressly include ‘documents which include Comcare employees and solicitors at AGS acting on behalf of Comcare’.
One would imagine, if Comcare instructed solicitors to act on its behalf in communications with the Employing Agency relating to work trials within the terms of the summons, it would not be blind to such matters. In that event, factual circumstances supported by relevant probative materials could have been relied upon to make a case, beyond mere speculation, for the likely existence of documents capable of attracting legal professional privilege not yet claimed. No such case has been made out.
Comcare’s submissions on the grounds of legal professional privilege are not made out.
Other than the issue of legal professional privilege, Comcare asserts it should be granted first access to the documents produced by the Employing Agency because it may have grounds to object to Mr O’Hara inspecting the documents produced on the basis of relevance or abuse of process. These assertions have not been developed or fleshed out.
The issues to be decided in the substantive proceedings arise under s 37 of the SRC Act in respect of the rehabilitation program determined for Mr O’Hara. The matters set out in s 37(3) must be considered. The rehabilitation program makes provision for a work trial. There is a controversy over the arrangement of an appropriate work trial: previous work trial arrangements have not proceeded. It is likely the documents produced by the Employing Agency contain information about work trial arrangements and related matters which are likely to illuminate reasons for the failure of previous work trial arrangements.
These matters must be considered in the context of the parties’ obligations under s 33(1AB) of the AAT Act and the Tribunal’s obligation to ensure each party has a reasonable opportunity to present their case under s 39 of the AAT Act in a manner which is procedurally fair.
There is a public interest in protecting the confidentiality of documents which should not be disclosed publicly. This interest is addressed by the Tribunal’s Interim Confidentiality Direction, subject to any further order once the matters agitated by the parties and the Employing Agency have been considered and determined.
Mr O’Hara has made submissions about the inadequacy of the rehabilitation program. It is likely his interest in the documents produced relates to this, as well as to the protection of personal, private information about him contained in the produced documents.
Comcare is the reconsideration decision-maker. Comcare’s interests in the documents produced touch on the issues of privilege I have addressed above as well as considerations of relevance, abuse of process and procedural fairness. Comcare’s interests must be viewed through the lens of its obligation to assist the Tribunal under s 33(1AA) of the AAT Act.
It is conceivable the question of relevance addressed by the Employing Agency when identifying documents within the terms of the summons might be somewhat different to the threshold of relevance Comcare might assert in respect of the issues for determination in the proceedings, even adjectivally. But this has not been crystallized in Comcare’s submissions. To be clear, crystallization does not require inspection of the documents, but it does require clarity in and a reasonable foundation for the submissions made.
The same can be said in respect of Comcare’s bald contention relating to possible abuse of process. Comcare has not objected to the summons and there is no clear assertion, and no relevant material to suggest, Mr O’Hara requested the summons for an ulterior purpose, beyond these proceedings. The ground on which this submission is made remains entirely opaque.
The proposition that, by granting Mr O’Hara leave to first inspect the documents produced, before Comcare, the Tribunal has subverted “the ‘usual process’, where there are no grounds to do so” cannot be accepted. As I comprehend Comcare’s submission on this point, the ‘usual process’ for which it contends is that described by the Tribunal in Gabriela’s case at [48], namely:
The non-summoning party will generally be provided with first access to this material, and the opportunity to object to the summonsing party’s access to any part of it. If such an objection is raised, it must be determined by the Tribunal before the summoning party is provided access, if at all.
Whether or not this description reflects a ‘usual process’ of the Tribunal, generally, the grant of leave under s 40B(1) of the AAT Act requires exercise of the discretion conferred in the particular circumstances of any case. Exercise of the discretion is not constrained by a ‘usual process’, such that departure from the ‘usual process’ would only be appropriate where sufficient grounds are made out in the particular circumstances of any case. The factors which are relevant when determining if it is appropriate to make an order granting leave for a party to inspect documents produced under summons are affected by the nature of the documents produced and the issues to be decided in the substantive proceedings.
Furthermore, I do not consider it apt to treat the procedural description and the procedure which was adopted in the circumstances of Gabriela’s case as a ‘usual process’ or policy which is generally applicable in any circumstances. It is not. And it is not appropriate to take it out of context. The procedure in Gabriela’s case was determined in the context of proceedings under the National Disability Insurance Scheme Act 2013, where the National Disability Insurance Agency asked the Tribunal to summon records of Ms Gabriela’s previous plan manager and Ms Gabriela objected to the summons after it had been complied with. In those circumstances, the Tribunal decided the summons would not be set aside and it was appropriate to grant Ms Gabriela first access to the documents produced.
I accept in some, even perhaps many, cases the appropriate order granting parties leave to inspect document produced under summons might align with the description of ‘usual procedure’ in Gabriela’s case. Nevertheless, there are also cases which do not so align, where leave is first granted to the party requesting the summons, in the case of a person calling upon the Tribunal’s summons power to obtain their own financial or medical records, or records about them, such a plan management records, for example which they cannot otherwise obtain. In such a case, it would be unusual for a government decision-maker to be granted leave to first inspect such documents in Tribunal proceedings to which they are a party.
The point of principle is that the discretion conferred under s 40B(1) requires consideration of the nature of the documents produced, the issues for determination in the substantive proceedings, private and public interests which might arise and related issues of procedural fairness. Matters of this kind cannot properly be determined by compliance with or exception from a ‘usual process’.
The documents produced are likely to contain personal information of Mr O’Hara’s and for this reason I considered it appropriate for him to be afforded an opportunity to inspect the documents and to raise any objection before Comcare is granted leave to inspect. Should Mr O’Hara make such an objection, Comcare will have an opportunity to be heard. Having heard the parties, my view has not changed. Were Comcare to be granted leave to first inspect the documents, Mr O’Hara would not be able to recover from disclosure to Comcare of objectionable documents containing personal information which is not of apparent or adjectival relevance in the proceedings. This is so, even though Comcare (and Mr O’Hara) are bound under the Harman doctrine by the obligation each owes to the Tribunal not to use the documents for any other purpose.

It is conceivable the documents might contain information Comcare considers to be not relevant or an abuse of process. If there is material of that kind, Comcare will have an opportunity to seek orders in relation to it or to object to it being admitted into evidence at a later point in the proceedings.
Comcare’s second primary ground in respect of ‘usual process’ lacks merit.
From this it follows, Comcare’s objections are refused. The inspection orders will be reinstated forthwith, granting leave for the Applicant to first inspect the documents, with Comcare being granted leave to do so, subject to objection, once 14 days have elapsed.

1. I certify that the preceding 46 (forty-six) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member.

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Associate
Dated: 2 July 2024

Date final submissions received: 27 June 2024

For the Applicant:

For the Respondent:

Mr Damon O’Hara

Mr Joe Okraglik, Australian Government Solicitor