O'Hara and Comcare (Compensation) - [2024] AATA 1052

O'Hara and Comcare (Compensation) [2024] AATA 1052 (14 May 2024)
Division:GENERAL DIVISION
File Number(s): 2023/9810
Re:Damon O’Hara
APPLICANT

ComcareAnd
RESPONDENT

INTERLOCUTORY DECISION
Tribunal:Mr S. Webb, Member
Date:14 May 2024
Place:Canberra

Objections not upheld. Comcare is granted leave to inspect the documents produced by Tuggeranong Square Medical 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 – objections refused
Legislation
Administrative Appeals Tribunal Act 1975 s 40B
Cases
Jack Brabham Engines Pty Ltd v Beare [2010] FCA 35
REASONS FOR DECISION
Mr S. Webb, Member
14 May 2024

Damon O’Hara claimed compensation in respect of an alleged injury in his employment by the Commonwealth. Comcare decided to refuse the claim by primary determination and 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), requested the Tribunal to summons materials from the Fisher Family Practice (Fisher FP), GastroACT and Tuggeranong Square Medical Practice (Ochre Medical Centre Tuggeranong Square) (Ochre MC).
On 8 April 2024, the Tribunal summonsed records from each entity.
On 16 April 2024, Ochre MC produced documents to the Tribunal.
The Tribunal granted leave for the parties to inspect the documents produced under s 40B(1) of the Administrative Appeals Tribunal Act 1975 (AAT Act). By this order, Mr O’Hara was granted leave from 22 April 2024, with Comcare’s leave being subject to objection raised by Mr O’Hara prior to 7 May 2024.
On 29 April 2024, the Fisher FP and GastroACT produced documents to the Tribunal.
On 1 May 2024, Mr O’Hara objected to Comcare inspecting documents produced by Ochre MC:
The applicant is of the view that certain documents are included within the scope of the summons and as such the applicant does not object to the documents listed in Table 1 (see attached).
The applicant is of the view that certain documents are included outside the scope of the summons and as such the applicant objects to the documents listed in Table 2 (see attached).
Table 2 – Applicant’s objections to documents returned under summons Tuggeranong Square / Lakeview Medical Practice

Page of Summons Return

Document

Objection

53 - 57

New Patient Registration Form – Fisher Family Practice - Page 2

Document returned in excess of summons. Original will be provided by Fisher Practice summons return.

68 - 73

GastroTrACT letter dated 20/05/20 and attachments

Document returned in excess of summons. Original will be provided by Dr Corbett summons return.

74

GastroTrACT letter dated 28/07/20

Document returned in excess of summons. Original will be provided by Dr Corbett summons return.

126 - 140

Dr Arul Ravindran clinical notes dated 26/04/22 through 05/10/22

Document returned in excess of summons. Original will be provided…

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 1052
Decision Date: 14 May 2024

CaseChat Overview and Summary

This matter concerned objections raised by Mr O’Hara regarding a summons issued by Comcare. Comcare sought access to certain documents as part of its review of a compensation claim made by Mr O’Hara, which had been refused. The proceedings were before Mr S. Webb, a Member of the relevant tribunal.

The central legal issue before the Member was whether the documents sought by Comcare under the summons fell within its permissible scope, or if Mr O’Hara’s objections to their production on that basis should be upheld.

The Member considered the scope of the summons and concluded that Mr O’Hara’s objections were not well-founded. Accordingly, the Member decided that Comcare should be granted leave to inspect the documents produced by Ochre MC without further delay.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In conclusion, Mr O’Hara’s objections on grounds of the scope of the summons are not upheld. Decision Objections not upheld. Comcare will be granted leave to inspect the documents produced by Ochre MC forthwith.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Page of Summons Return	Document	Objection
53 - 57	New Patient Registration Form – Fisher Family Practice - Page 2	Document returned in excess of summons. Original will be provided by Fisher Practice summons return.
68 - 73	GastroTrACT letter dated 20/05/20 and attachments	Document returned in excess of summons. Original will be provided by Dr Corbett summons return.
74	GastroTrACT letter dated 28/07/20	Document returned in excess of summons. Original will be provided by Dr Corbett summons return.
126 - 140	Dr Arul Ravindran clinical notes dated 26/04/22 through 05/10/22	Document returned in excess of summons. Original will be provided…