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 FP produced documents to the Tribunal.
On 3 May 2024, the Tribunal granted leave for the parties to inspect the documents produced by Fisher FP under s 40B(1) of the Administrative Appeals Tribunal Act 1975 (AAT Act). Mr O’Hara was granted leave to inspect the documents first, on 6 May 2024, and, subject to objection, Comcare was granted leave to inspect the documents thereafter from 20 May 2024.
On 19 May 2024, Mr O’Hara sent an email to the Tribunal in the following terms:
I am the Applicant in proceedings 2023/9810 O'Hara and Comcare.
On 3 May 2024 the Tribunal made inspection orders for documents produced under summons (see attached). The Applicant has inspected the documents produced by Fisher Family Practice.
The Applicant has substantially the same objections as he has previously raised for documents produced by Tuggeranong Square Practice; that is, objection to the documents produced by Fisher Practice in excess of summons, being documents that did not arise out of the treatment by the Practice.
The Applicant also has had regard for the Tribunal's interlocutory decision dated 14 May 2024,[1] and as a result, we do not anticipate that the Tribunal will uphold our objections here either. But we do not abandon the principle that the summons is confined to documents arising out of, or concerning, treatment by (doctors at) that practice and as such, document[s] arising from treatment by Dr Ravindran (psychiatrist), an[d] other doctors, at other practices, do not fall within the scope of the summons.
However, we do not seek to re-litigate that issue in these proceedings, save that we do not accept or accede to the principle.
[1] The Tribunal decided previous objections Mr O’Hara raised to Comcare inspecting documents produced under summons by the Tuggeranong Square Medical Practice (Ochre Medical Centre Tuggeranong Square) (Ochre MC) in O’Hara and Comcare (Compensation) [2024] AATA 1052 (AATA 1052).
On 20 May 2024, the Tribunal sought clarification from Mr O’Hara.
On 21 May 2024, Mr O’Hara provided the following response:
1. I stand by the principle that some of the documents returned in each of the Fisher and Tuggeranong Square bundles are in excess and should not have been returned, and on that basis the Respondent should not be granted leave to inspect those documents.
2. The Tribunal has made a substantially similar decision in relation to the Tuggeranong Square bundle. I acknowledge and respect that decision (although I don't agree with it). Finding that the summons captures psychiatric reports goes contrary to the decision history of the Respondent, which initially found liability of the IBS condition as a sequale to PTSD (a psychological condition), and on that basis summoned documents from my psychiatrist. The Respondent has now abandoned that view and says that the condition is not related to my psychology at all, and on that basis has not sought to summon documents from my psychiatrist. Yet, somehow the psychiatrist reports which appear in the GP records are relevant? If they were potentially relevant the Respondent would have summoned my psychiatrist. The Tribunal was wrong to find that all of the materials produced were responsive to the summons.
3. I don't presently have the capacity to prepare submissions to make more substantial objections, and as a result, I don't expect the Tribunal to arrive at any different conclusion than it did in the Tuggeranong Square matter.
4. I'm not a lawyer, so I anticipate that whatever I say will be twisted for technical and legal meaning by the Respondent. So while I do object to the Respondent inspecting some of the documents, I also don't want the Tribunal put to the trouble of re-making the same decision, particularly where there is no new submissions from me.
5. What I really want is for the Tribunal and the Respondent to acknowledge that there is a substantive difference between blanket summonsing all medical records which I say is an abuse of the process and a fishing expedition, and a summons which is focused upon the medical issue relevant to the decision under review, in this case a gastrological condition which is or should be (if it weren't fishing) the focus of the Respondent's summons.
The Tribunal suspended the 3 May 2024 inspection order and Comcare’s leave to inspect the documents produced by the Fisher FP. Comcare was directed to provide submissions responding to Mr O’Hara’s objection.
On 6 June 2024, Comcare provided written submissions in which it pressed for full access to the documents produced by the Fisher FP, over Mr O’Hara’s objection.
It is these matters, alone, which are the subject of this decision.
Mr O’Hara is correct to observe the substantial similarity between the objections I dealt with in AATA 1052 and those raised presently, in respect of the documents produced by the Fisher FP.
I accept his submission he does not seek to relitigate the objections previously made, in respect of ‘documents produced by Fisher Practice in excess of summons, being documents that did not arise out of the treatment by the Practice’ without abandoning ‘the principle that the summons is confined to documents arising out of, or concerning, treatment by (doctors at) that practice and as such, documents arising from treatment by Dr Ravindran (psychiatrist), an[d] other doctors, at other practices, do not fall within the scope of the summons’.
For ease of understanding, I will set out what I said in the AATA 1052 decision:
28. The Ochre MC summons is in the following terms:
YOU ARE REQUIRED to produce the following documents or things to the Administrative Appeals Tribunal:

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 10 March 1976.

29. As can be seen, there is some ambiguity in the language used which requires interpretation by a reader. The ambiguity arises from the use of relational language in the phrase ‘concerning or arising out of treatment or consultation by your practice’. This requires interpretation and the exercise of judgment in order to comprehend the ambit of material caught.
30. The word ‘all’ is unambiguous when read with the inclusive list of documentation to which it applies, namely all documents of the kinds specified which are ‘held manually and or electronically’ by Ochre MC. What is meant by the word ‘manually’ is not clear. In all likelihood this refers to documents held in physical form by Ochre MC. I will proceed on that understanding.
31. Clearly enough, documents held by Ochre MC ‘concerning or arising out of treatment or consultation by your practice’ of Mr O’Hara are within the terms of the summons and the compulsion to produce. The contrary holds. Documents held by Ochre MC which are not ‘concerning or arising out of treatment or consultation by your practice’ of Mr O’Hara are not within the terms of the summons.
32. The phrase ‘concerning or arising out of’ is expansive in effect. It expands the scope of the summons beyond documentation ‘of treatment or consultation by your practice’ to encompass documents held by Ochre MC ‘concerning or arising out’ of such treatment or consultation.
33. The Oxford English Dictionary relevantly defines the word ‘concerning’ to mean ‘to refer, to relate to’ and ‘as regards, as relates to’. The relational threshold is broad. The threshold does not require a direct relation between documents of the kind specified and any particular treatment or consultation or any kind of treatment or consultation by Ochre MC. It is sufficient if the decision-maker, approaching the matter objectively, is satisfied the documents refer or relate to, or they arise out of, treatment or consultation by Ochre MC.
34. Proceeding on this basis, the following findings can be made.
35. Ochre MC produced the documents set out in Mr O’Hara’s Table 2 (above) to the Tribunal.
36. To the extent of the ambiguity I have discussed, it may be inferred that Ochre MC exercised reasonable judgement when identifying documents from within its holdings which are subject to and within the terms of the summons to produce.
37. The controversial documents in Table 2 were created by entities other than Ochre MC, namely the Fisher FP, GastroACT and Dr Ravindran. The documents contain information relating to Mr O’Hara’s consultations, symptoms, conditions, investigations, treatments, progress and related matters (including administrative matters) at various times. The lawful transfer or provision of a person’s medical records from one medical practice to another is commonplace. For obvious reasons, a patient’s past manifestations of illness and treatment are likely to inform the person’s subsequent progress and treatment.
38. To varying degrees, the Fisher FP, GastroACT and Dr Ravindran documents are likely to inform and relate to Mr O’Hara’s treatment by and consultations with Ochre MC at a different time. Viewed in this manner, the information in the controversial Fisher FP, GastroACT and Dr Ravindran documents about Mr O’Hara’s past medical history can be understood to relate to or concern Mr O’Hara’s treatment by Ochre MC.
39. The very existence of the documents within Ochre MC’s holdings and Ochre MC’s judgement the documents are within the terms of the summons, support this finding.

It is important to note the terms of the summons sealed in respect of the Fisher FP (at paragraph [4] above) are the same, with the same ambiguity, as the summons sealed in respect of Ochre MC.
The observations and conclusions I have set out are equally applicable in respect of Mr O’Hara’s similar objections in this instance, in respect of the scope of the summons and the documents produced by Fisher FP. In consideration of Mr O’Hara’s submissions addressing this point, it is not necessary to revisit those conclusions. They are presently apposite and I have reached no different conclusions in consideration of Mr O’Hara’s objections, presently. The key point is the terms of the summons admit more than one interpretation and, when considered in the context of the proceedings and the issues to be determined by the Tribunal, I am not persuaded the narrow interpretation preferred by Mr O’Hara is correct.
Additionally, Mr O’Hara’s present objection expressly raises a question of relevance. Addressing these matters, I make the following observations and findings.
The Tribunal’s summons power is set out in s 40A of the AAT Act:
(1) For the purposes of a proceeding before the Tribunal, the President, an authorised member or an officer of the Tribunal may summon a person to do either or both of the following, on the day, and at the time and place, specified in the summons:
(a) appear before the Tribunal to give evidence;
(b) produce any document or other thing specified in the summons.
(2) The President or an authorised member may refuse a request to summon a person.
(3) A person may, before the day specified in the summons, comply with a summons to produce a document or thing by producing the document or thing at the Registry from which the summons was issued. If the person does so, the person is not required to attend the hearing of the proceeding unless:
(a) the summons or another summons requires the person to appear before the Tribunal; or
(b) the Tribunal directs the person to attend the hearing.
As can be seen, the summons power is for the purposes of a proceeding before the Tribunal.
Albeit that under s 33(1)(c) of the AAT Act the Tribunal is not bound by the rules of evidence, common law principles relating to subpoenas issued by courts have been applied in respect of a Tribunal summons, such that the summons must be for a legitimate forensic purpose and the material sought must, at the minimum, have apparent or adjectival relevance[2] to the issues in the principal proceeding.[3] The thresholds of legitimate forensic purpose and apparent relevance involve two key considerations:
(a)whether there is a real possibility, beyond speculation, the documents ‘could reasonably be expected to throw light on’ some of the issues in the principal proceedings[4] and there is a reasonable basis beyond speculation that the documents will materially assist on an identified issue,[5] or may assist in the resolution of the issues in the proceedings;[6] and
(b)whether there is reason to suppose that the documents will be capable of being used as evidence or for a legitimate forensic purpose in cross-examination,[7] such that, when ‘viewed realistically, the documents sought have a bearing on an issue which is not unreal, fanciful or speculative, or that the material sought is reasonably likely to add in some way to the relevant evidence in the case, or that it be “on the cards” that the documents sought will materially assist the party at whose request the subpoena has been issued.’[8]
[2] Comcare v Maganga [2008] FCA 285 (Maganga) at [36].
[3] Secretary, Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 at [65], [80], [89] and [98]; Jack Brabham Engines Pty Ltd v Beare [2010] FCA 35 at [7]-[9].
[4] Trade Practices Commission v Arnotts Pty Ltd [1989] FCA 248 at [41].
[5] Montenegro v Legal Profession Admission Board [2022] NSWSC 1100 at [6].
[6] Maganga at [37].
[7] Hunt v Wark (1985) 40 SASR 489 per King CJ at [493].
[8] Wong v Sklavos [2014] FCAFC 120 at [12].
The ambit of apparent relevance is not unlimited. It does not cover materials which have no possible relevance, or which serve no legitimate forensic purpose in the proceedings. A reasonable basis for thinking the materials may have some relevance must be established. Simply trawling for materials, fishing in the hope of finding something of relevance, is not an appropriate or permissible use of the Tribunal’s summons power. More is required of the party seeking the summons: it is that party who bears the onus of demonstrating there is a legitimate forensic purpose in relation to the issues in the proceedings.[9]
[9] Ibid.
Under s 43 of the AAT Act, the Tribunal must provide reasons for its decision. Section 43(2B) requires that the reasons must include the Tribunal’s ‘findings on material questions of fact and a reference to the evidence or other material on which those findings were based’.
The Tribunal must ensure that each party has a reasonable opportunity to present their case. As s 39(1) of the AAT Act sets out, this includes giving each party the opportunity to inspect and make submissions about relevant documents:
Subject to sections 35, 36 and 36B, the Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents.
It is this and the requirements of procedural fairness, particularly with regard to obtaining material of likely relevance which serves a legitimate forensic purpose in the proceedings, including testing evidence at a hearing, which underlie the entitlement of each party to build an evidentiary mosaic when preparing a case for hearing.[10] Arguing that a narrow view should be taken of the relevant materials, such that the entitlement should be confined to materials of obvious or direct relevance, is no answer. The threshold of relevance which applies to production under summons is somewhat broader than the relevance threshold that applies when considering the admission of evidence.[11]
[10] Lakatoi Universal Pty Limited and Ors v Walker and Ors [1998] NSWSC 470 at 497.
[11] BrisConnections Finance Pty Ltd (Receiver and Manager Appointed) v Arup Pty Ltd [2016] FCA 906 at [25].
Whether the materials produced under summons have apparent or adjectival relevance in the particular case is a matter to be assessed against the substantive issues to be decided and the purposes to which the materials may legitimately be put in the proceedings. At this stage, the probative value of the documents is not determinative. These considerations hinge on the statutory and legal questions raised by the application that the Tribunal must address, and the factual findings required for that purpose.
The present proceedings in the Tribunal arise from Comcare’s decision-making in respect of Mr O’Hara’s claim for compensation in relation to Irritable Bowel Syndrome (IBS). I note the claim form is not in the materials that have been given to the Tribunal in these proceedings. On 24 August 2022, Comcare initially accepted liability for Mr O’Hara’s IBS as a ‘disease’ on the grounds that Mr O’Hara’s previously accepted Post Traumatic Stress Disorder (PTSD) ‘injury’ contributed to it to a significant degree. This was despite Mr O’Hara’s compensation claim specifying that the IBS ailment arose from unsanitary conditions in his employment. Subsequently, Comcare decided to undertake an ‘own motion’ reconsideration of the positive liability determination. In the result, on 12 December 2023, Comcare decided to ‘deny liability for IBS’ under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act).[12] This decision is the subject of Mr O’Hara’s application for review by the Tribunal.
[12] T1.1

A decision of this kind hinges on the definitional provisions in s 5A of the SRC Act in respect of an ‘injury’ and s 5B in respect of a ‘disease’:
5A Definition of injury
(1) In this Act:
injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
(2) …
5B Definition of disease
(1) In this Act:
disease means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
significant degree means a degree that is substantially more than material.
As can be seen, in order to address the contributory requirement applying to a ‘disease’, without limiting the matters which may be taken into account in the circumstances of any case, the matters set out in s 5B(2) are to be taken into account.[13] These matters include any predisposition Mr O’Hara may have had or any other matters affecting his health relevant to his claim.
[13] Comcare v Power [2015] FCA 1502 at [94].
Quite plainly, at first instance, Comcare came to the view Mr O’Hara’s PTSD significantly contributed to his IBS ailment, such that it was a ‘disease’ kind of ‘injury’. On the text of the reconsideration decision, it appears this was on the basis of evidence provided by Dr Ryan:[14]
[14] T1.1, folio 16.
Furthermore, the 30 August 2023 report of Dr Corbett, a gastroenterologist, raises the prospect Mr O’Hara’s PTSD might contribute to his IBS ailment.[15]
[15] T1.4, folio 21.
The Tribunal’s role is to make a fresh decision, addressing all of the matters which were before the reconsideration decision-maker. In so doing, it exercises all of the powers and is subject to the same limits as the reconsideration decision-maker when addressing and determining afresh Mr O’Hara’s compensation claim in respect of IBS.
It is trite to observe the specific contents of the claim and the notice of the alleged injury frame such considerations. On this point, absent the actual claim form, I can go no further.
In his application, Mr O’Hara appears to contend his IBS is of a post-infection type, as suggested by Dr Corbett. It is not clear to me, however, that his claim is cast in such terms without reference to his PTSD injury or related psychological factors as Comcare’s initial determination suggests. Nevertheless, having regard to s 5B(2), while the Tribunal is not limited or bound by the reconsideration decision or the primary determination Comcare made, it is required to take account of relevant matters, including the circumstances in which Mr O’Hara’s IBS symptoms arose and the degree to which his employment contributed, if at all.
As will be clear by now, I am satisfied Mr O’Hara’s psychological condition and PTSD are factors of some relevance to the matters the Tribunal must decide in these proceedings.
Medical materials produced by the Fisher FP relating to Mr O’Hara’s PTSD and his psychological symptoms are likely to be relevant when deciding his compensation claim in respect of IBS. The extent to which such symptoms might predispose Mr O’Hara to IBS or contribute to the onset or progress of IBS symptoms are matters of direct relevance. It is for this reason the psychiatric materials produced by the Fisher FP are not in excess of the summons sealed by the Tribunal and they are likely to be of relevance, at least adjectivally, in these proceedings.
Furthermore and finally, materials relating to Mr O’Hara’s psychological health are within the ambit of s 5B(2)(e) and such materials are likely to serve a legitimate forensic purpose in the proceedings when determining the contributory requirement in the context of a ‘disease’. Comcare seeking to obtain or to inspect such materials does not amount to an impermissible fishing expedition.
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.

I certify that the preceding 39 (thirty-nine) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member.

....[SGD].................... ..................................
Associate
Dated: 26 June 2024

Date final submissions received:

For the Applicant:

For the Respondent:

Mr Damon O’Hara

Mr Joe Okraglik, Australian Government Solicitor