O'Hara and Comcare (Compensation)
[2024] AATA 1052
•14 May 2024
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 by Fisher Practice summons return.
155 - 157
Medical certificates of Fisher Practice
Document returned in excess of summons.
Original will be provided by Fisher Practice summons return.
159 - 167
Medical certificates of Fisher Practice
Document returned in excess of summons.
Original will be provided by Fisher Practice summons return.
168 - 219
Medical records of Fisher Practice
Document returned in excess of summons.
Original will be provided by Fisher Practice summons return.
Notes:
Documents are returned in excess of summons where they have been produced outside the scope of the summons issued by the Tribunal.
Original documents summonsed from another entity (eg. Dr Corbett or Fisher Practice) will be returned by that entity.
On 3 May 2024, under s 40B(1) of the AAT Act, the Tribunal granted leave for the parties to inspect the documents produced by the Fisher FP and GastroACT. Mr O’Hara was granted leave to inspect from 6 May 2024. Comcare’s leave to inspect was subject to objection raised by Mr O’Hara prior to 20 May 2024.
On 8 May 2024, Mr Andrew Dillon, an AGS Senior Executive Lawyer, lodged the following submissions in respect of Mr O’Hara’s objection:
In the respondent’s submission, the applicant’s objections are absurd and wasteful for the following reasons.
1. The summonses issued in this matter were necessary only because of the applicant’s intransigence in relation to the implied undertaking over the medical records produced by the same practices in matter number 2022/9052. The Tribunal, the medical practices and the respondent have been put to unnecessary effort and expense in duplicating the earlier summonses to no practical effect. This process has delayed the Tribunal’s review of the application unnecessarily.
2. Even if the applicant were able to certify that copies of documents held by Ochre Medical Centre Tuggeranong Square are identical to those held by Fisher Family Practice and Dr Corbett, which he cannot, there is no practical advantage to the applicant in allowing the respondent access to one copy of a document and not to another identical copy of that document. He cannot so certify and nor can the Tribunal or the respondent know whether, for example, one copy has annotations not made to the other copy. Only by examination of the documents can the respondent be satisfied that there are no material differences in copies held by different practices.
3. The respondent is bound by the implied undertaking and its ethical responsibilities not to misuse any document it accesses under summons. There is no detriment, or potential detriment, to the applicant in the respondent having duplicate electronic copies of the same document albeit returned by different practices.
4. The applicant’s objection to inspection of certain documents is, in the respondent’s submission, vexatious, in that it can achieve no practical benefit to him, but engages the respondent in unnecessary and unproductive work and costs unrelated to the substance of the application.
The respondent submits that the Tribunal should make an order granting full access to the Ochre Medical Centre records. The respondent further submits that this order should be made without hearing further from the parties.
On 8 May 2024, Mr O’Hara lodged the following reply to Comcare’s submissions:
Please refer to the attached email from Mr Dillon of AGS which states that from 9 April 2024 he does not have carriage of matter 2023/9810 and 2023/9545 and asking the Tribunal to update its records accordingly.
I ask both the Tribunal and OLSC to note Mr Dillon's intervention in this matter-- despite not having carriage of it-- as well as his discourteous tone in this and prior correspondence with me for which he has already apologised.
Mr Dillon's unwarranted interest in my Tribunal applications, even those he does not have carriage of, is not assisting the Tribunal. For example, refusing to engage in any extra-Tribunal discussions between the parties to narrow matters genuinely in dispute, and making insulting submissions, do not advance the Tribunal's objectives and tend to slow the progress of matters before it. The 'win at all costs' attitude is not helping anyone.
It is now clear to me, and should be clear to the AGS Senior Executive (and the OLSC), that Mr Dillon's zealous interest in my Tribunal affairs has become personal to him. This conduct strays from the Commonwealth's model litigant obligations and I think is notifiable.
I feel victimised by this continued, relentless, accusatory and hurtful correspondence from someone in the AGS who isn't even a party to this matter. All of which is made worse because Mr Dillon knows (from the medical files he refers to below) that I have a serious mental health condition.
While I will make some observations about these matters, it is Mr O’Hara’s objection, alone, which is the subject of this decision.
The objection
Leave to inspect documents produced under a Tribunal summons is to be decided under s 40B(1) of the Administrative Appeals Tribunal Act 1975 (AAT Act):
(1) Any of the following persons may give a party to a proceeding leave to inspect a document or other thing produced under a summons in relation to the proceeding:
(a) the President;
(b) an authorised member;
(c) an authorised officer.
As can be seen, the authorised person may give a party leave to inspect documents produced. The grant of leave involves exercise discretion. The relevant principles which are applicable when exercising the discretion and determining objections, in respect of relevance for example, [1] are well established.
[1] Jack Brabham Engines Pty Ltd v Beare [2010] FCA 35 at [7]-[9].
Mr O’Hara’s objection turns on a different point. His objection to Comcare inspecting the documents produced by Ochre MC (as specified in Table 2, above) is that the documents were produced in excess of the summons.
The nub of his objection is that documents produced beyond the express terms or the ‘scope’ of the summons are in excess of the summons and leave to inspect them should not be granted.
Mr O’Hara’s objection, and the Tribunal’s power under s 40B(1), hinges on the specific terms of the summons under s 40A(1) of the AAT Act.
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.
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.
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.
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.
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.
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.
Proceeding on this basis, the following findings can be made.
Ochre MC produced the documents set out in Mr O’Hara’s Table 2 (above) to the Tribunal.
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.
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.
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.
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.
I am satisfied the controversial documents in Table 2 are within the broad frame of documents concerning or arising out of treatment or consultation by Ochre MC in respect of Mr O’Hara. Consequently, the Tribunal’s discretionary power in s 40B(1) of the AAT Act to grant leave to inspect the documents Mr O’Hara has specified in Table 2, above, is enlivened.
That being so, Mr O’Hara’s objections are not made out.
Other matters
With regard to Mr O’Hara’s complaint about Mr Dillon’s involvement, there are a number of things to say.
Firstly, AGS is Comcare’s legal representative in these proceedings. AGS, and more particularly Mr Dillon, is not a party to the proceedings. AGS must act on instructions it is given by Comcare. It is expected that all submissions made for Comcare are properly made on the basis of instructions. Comcare is bound to comply with the model litigant obligations under the Legal Services Directions 2017.
Secondly, while the solicitor with carriage is a matter of record, it is for Comcare and AGS as its legal representative to determine which solicitor has direct involvement in the proceedings from time to time. I note on 19 January 2024, AGS notified the Tribunal it had received instructions to act from Comcare and Mr Dillon would have conduct. On 9 April 2024, Mr Dillion notified the Tribunal he no longer had carriage of application 2023/9810 and Mr Joe Okraglik would have day to day carriage under Ms Nicky McGowan’s supervision. On 8 May 2024, Mr Dillon made written submissions for Comcare in response to Mr O’Hara’s objection. The basis on which Mr Dillon rather than Mr Okraglik made the submissions is not apparent on the materials given to the Tribunal and it has not been explained.
Thirdly, Mr O’Hara is representing himself. He has health issues, including a mental health condition. It is important to recognise and respond appropriately to these circumstances, allowing reasonable flexibility and appropriate latitude, including procedurally, and approaching issues with due sensitivity to Mr O’Hara’s condition.
Fourthly, each party in the proceedings has an obligation under s 33(1AB) of the AAT Act to use their best endeavours to assist the Tribunal to fulfil the objectives in s 2A. Under s 39(1) of the AAT Act, the Tribunal must ensure each party to a proceeding is given a reasonable opportunity to present their case. It does not assist the Tribunal for any party or representative of a party in proceedings before the Tribunal to adopt an overly adversarial approach, or to engage in personal criticism of another party or a legal representative of a party in the course of the proceedings. Furthermore, it does not assist the Tribunal for any party to engage in disputation over technical, procedural or incidental matters unnecessarily, without a good cause. The Tribunal’s objective in s 2A of the AAT Act must be kept squarely in mind:
In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that:
(a) is accessible; and
(b) is fair, just, economical, informal and quick; and
(c) is proportionate to the importance and complexity of the matter; and
(d) promotes public trust and confidence in the decision‑making of the Tribunal.
With regard to Comcare’s submission alleging intransigence by Mr O’Hara in respect of the implied undertaking over the medical records produced by the same practices in matter number 2022/9052 some caution is required. It is trite to observe Mr O’Hara has no authority to grant release from the implied obligation which is owed to the Tribunal in respect of documents produced under summons in another proceeding. Mr O’Hara’s resistance to the application for release on grounds of relevance is a matter the Tribunal would have dealt with had Comcare not withdrawn its application for release on 4 April 2024. Comcare gave the following reasons for withdrawing the release application:
The applicant opposed the request on the basis that some of the documents covered by it were not directly relevant. The respondent accepts that that contention was correct, although, given all the documents were already before the Tribunal, it took the view that it was in the interests of the Tribunal and all the parties to quickly and without a detailed process, bring the documents in 2022/9052 into 2023/9810.
…
Clearly, the application for release from the implied undertaking has not produced the efficiency intended, and it is inevitable that the applicant's resistance to the application means that there will be the need for a directions hearing and possibly submissions going to the relevance of every page covered by the request. The respondent has formed the view that it is now more efficient for it to file selective documents that are in the T-Documents and Supplementary-Documents (unfiled) under s38AA of the Administrative Appeals Tribunal Act 1975. These documents were not obtained by Comcare by compulsion in the course of 2022/9052 and are under Comcare's possession and control. They come within the scope of s37 and s38AA of the AAT Act and can be filed without release.
Similarly, it is more efficient for the respondent to apply for the issuing of summonses in 2023/9810 than to debate the relevance of every entry in the medical records obtained under summons and filed in 2022/9052.
For these reasons, the respondent withdraws its application for release from the implied undertaking in respect of any documents in 2022/9052 D.O and Comcare.
For completeness, the respondent acknowledges the applicant's application in his submissions dated 29 March 2024 for release from the implied undertaking in respect of 20 specific documents in 2022/9052. The respondent does not oppose the release in respect of those documents.
In these circumstances, Comcare’s description of Mr O’Hara’s resistance to the release application as intransigent is somewhat inapt. Without release, Comcare called upon the Tribunal’s summons power in seeking to gain access to the documents sought. That was a matter for Comcare.
With regard to Comcare’s submission Mr O’Hara’s objection is vexatious, this is not made out in the circumstances. Mr O’Hara’s objection is likely within the meaning of ‘proceeding’ in s 3 of the AAT Act and Comcare’s submission is to be considered in this context. The test of whether a proceeding is vexatious requires an objective determination the proceeding is without foundation, hopeless or futile, or it involves relitigating matters which have previously been authoritatively decided. An objection may well be considered to be vexatious if the objection lacks a proper foundation, or it is frivolous or hopeless. While intention or motive are not relevant considerations, the Tribunal must protect against unwarranted usurpation of its resources in proceedings which lack substance and put parties to costs unnecessarily.
In the circumstances, I am satisfied Mr O’Hara’s objection approaches these thresholds but, as he is representing himself, some latitude is required. Notwithstanding the objection has a technical character and it is not made out, I am not persuaded it is vexatious as raised a legitimate issue which required resolution of ambiguity in the language of the summons and consideration of the Tribunal’s power under s 40B(1) of the AAT Act.
As a matter of general principle, production of a document to the Tribunal in excess of the terms of a summons may be a legitimate ground for objection to the grant of leave to inspect. The terms specified in the summons frame the compulsion to produce. There is no compulsion to produce a document outside the specified terms of summons. The discretionary power under s 40B(1) extends to the grant of leave to inspect a document produced under summons. Where an objection to inspection is made on grounds the production is in excess of the summons, it is for the Tribunal to be satisfied the grounds of the objection are made out.
It is conceivable, even likely, at least some of the controversial documents Mr O’Hara identified in Table 2 will be produced to the Tribunal by other entities under summons, as he asserts in Table 2 (above). This does not render his objection otiose. Should that occur, the parties will be granted leave to inspect subject to objection, as occurred in respect of the documents produced by Fisher FP and GastroACT. The period in which Mr O’Hara has been granted leave to inspect documents produced by the Fisher FP and GastroACT has not yet elapsed. It will end on 20 May 2024. He has not yet raised an objection to Comcare inspecting the documents produced, but he may yet do so. That is a matter for him. In these circumstances, if documents described in Table 2 above are produced to the Tribunal by another entity, it cannot be assumed Mr O’Hara will make no other objection to Comcare inspecting the documents produced.
I understand some, if not all, of the controversial documents have been previously produced to the Tribunal under compulsion in other proceedings without admission into evidence. If that is correct, the documents cannot be used for any other purpose than the proceedings in which they were produced. It was for this reason Comcare requested release under the Harman principle. The fact that the request was opposed, at least in part, by Mr O’Hara and it was subsequently withdrawn by Comcare does not permit a finding the question of release thus raised was decided by the Tribunal. It was not, and release from the obligation owed to the Tribunal has not been granted.
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.
I certify that the preceding 44 (forty-four) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member.
........................[sgd].................................
Associate
Dated: 14 May 2024
Date final submissions received: 8 May 2024
For the Applicant:
For the Respondent:
Mr Damon O’Hara
Mr Joe Okraglik, Australian Government Solicitor