O'Hara and Comcare (Compensation) - [2024] AATA 2145

O'Hara and Comcare (Compensation) [2024] AATA 2145 (26 June 2024)
Division:GENERAL DIVISION
File Number(s): 2023/9810
Re:Damon O’Hara
APPLICANT

ComcareAnd
RESPONDENT

INTERLOCUTORY DECISION
Tribunal:Mr S. Webb, Member
Date:26 June 2024
Place:Canberra

Objections not upheld. Comcare is granted leave to inspect the documents produced by Fisher Family Practice forthwith.
…[SGD]……………………………………………………
Mr S. Webb, Member
Catchwords
PRACTICE AND PROCEDURE – review of decision refusing compensation claim in respect of alleged injury – summons – objections to grant of access – scope of summons – documents within scope – relevance – objections refused
Legislation
Administrative Appeals Tribunal Act 1975 s 33, 39, 40A, 40B, 43
Safety, Rehabilitation and Compensation Act 1988, s 5A, 5B, 14
Cases
BrisConnections Finance Pty Ltd (Receiver and Manager Appointed) v Arup Pty Ltd [2016] FCA 906
Comcare v Maganga [2008] FCA 285
Comcare v Power [2015] FCA 1502
Hunt v Wark (1985) 40 SASR 489
Jack Brabham Engines Pty Ltd v Beare [2010] FCA 35
Lakatoi Universal Pty Limited and Ors v Walker and Ors [1998] NSWSC 470
Montenegro v Legal Profession Admission Board [2022] NSWSC 1100
O’Hara and Comcare (Compensation) [2024] AATA 1052
Secretary, Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145
Trade Practices Commission v Arnotts Pty Ltd & Ors [1989] FCA 248
Wong v Sklavos [2014] FCAFC 120
REASONS FOR DECISION
Mr S. Webb, Member
26 June 2024

Damon O’Hara claimed compensation in respect of an alleged irritable bowel syndrome injury in his employment by the Commonwealth. Comcare initially accepted liability for the claimed injury but reversed its position on reconsideration. Mr O’Hara applied to the Tribunal for review of this decision.
In the course of the resulting proceedings, on 4 April 2024, Comcare’s legal representative, the Australian Government Solicitor (AGS), applied for the Tribunal to summons materials from the Fisher Family Practice (Fisher FP).
The summons request is in the following terms:
The applicant has received treatment from the above medical practice.
The respondent had accepted liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) for irritable bowel syndrome. It revoked that liability ab initio.
The applicant now seeks review of the revocation of liability for irritable bowel syndrome.
The respondent considers the requested medical records from Fisher Family Practice will assist the Tribunal in considering the issues before it, in particular whether the respondent is liable for irritable bowel syndrome. In particular, the records will assist to understand the diagnosis of the applicant’s condition, any documents or information as to onset of the condition, the treatment the applicant has received over time, and recommended treatments.
On 8 April 2024, the Tribunal sealed and issued a summons for production of the following materials by the Fisher FP:
All medical notes, records, correspondence, referrals, reports, test results, or any other documentation held manually and/or electronically concerning or arising out of treatment or consultation by your practice of DAMON O’HARA, born on [XXX].
On 29 April 2024, Fisher…

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.

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Details

Case: [2024] AATA 2145
Decision Date: 26 June 2024

CaseChat Overview and Summary

This matter concerned objections raised by Mr O’Hara to a summons issued by Comcare seeking access to certain documents. The dispute arose in the context of a review of a decision refusing Mr O’Hara's compensation claim, which was before the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether Mr O’Hara’s objections to the grant of access to the documents sought by Comcare under the summons were valid. This required the Tribunal to consider the scope of the summons and the relevance of the documents to the proceedings.

The Member found that Mr O’Hara’s objections were not made out. The Tribunal determined that the documents sought by Comcare fell within the scope of the summons and were relevant to the compensation claim review. Accordingly, Comcare was granted leave to inspect the documents produced by Fisher FP.

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

That being so, Mr O’Hara’s objections are not made out.Decision Objections not upheld. Comcare will be granted leave to inspect the documents produced by Fisher FP forthwith.

Ratio Decidendi

Legal Principle Established

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