O'Sullivan and P&O Maritime Services Pty Ltd (Compensation)
[2019] AATA 2966
•13 August 2019
O'Sullivan and P&O Maritime Services Pty Ltd (Compensation) [2019] AATA 2966 (13 August 2019)
Division:GENERAL DIVISION
File Number: 2015/0698
Re:Michael O'Sullivan
APPLICANT
AndP&O Maritime Services Pty Ltd
RESPONDENT
DECISION
Tribunal:Deputy President Boyle
Date: 13 August 2019
Date of written reasons: 30 August 2019
Place:Perth
The Tribunal orders that the respondent have leave to inspect the documents produced under summons by the Royal Australasian College of Surgeons and TAMS Group Pty Ltd.
..........[sgd]..............................................................
Deputy President Boyle
CATCHWORDS
PRACTICE AND PROCEDURE – Administrative Appeals Tribunal Act 1975 (Cth) – objection by the Applicant to the Respondent’s inspection of material produced under summons – whether the documents relate to the proceedings such that there is a real possibility that they may assist in the resolution of issues in the proceedings – privacy of medical records – implicit surrender would apply in the case of claim against an employer under the Seafarers Rehabilitation and Compensation Act 1992 (Cth) – error in summons corrected – objection disallowed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – ss 39(1), 40A, 40A(1), 40B, 40B(1), 40B(2)
Seafarers Rehabilitation and Compensation Act 1992 (Cth)
CASES
Comcare v Maganga (2008) 101 ALD 68; [2008] FCA 285
O’Sullivan and P&O Maritime Services Pty Ltd [2018] AATA 2899
O’Sullivan and P&O Maritime Services Pty Ltd [2019] AATA 126
Panagiotou and TNT Australia Pty Ltd [2011] AATA 565
ZFCC and Comcare [2018] AATA 1358REASONS FOR DECISION
Deputy President Boyle
13 August 2019
THE APPLICATION
The applicant has objected to the respondent being given leave to inspect documents produced under summons issued at the request of the respondent.
BACKGROUND
The substantive application in these proceedings seeks the review of the respondent’s decision to deny liability for a back injury claimed by the applicant. As was noted by Member Webb in his reasons for decision in a previous interlocutory application in this matter:[1]
[1] O’Sullivan and P&O Maritime Services Pty Ltd [2019] AATA 126 at [5].
5.The factual background has been set out in detail in previous decisions of the Tribunal and court judgments, namely:
(a)
O’Sullivan and P & O Maritime Services Pty Ltd [2016] AATA 283
(3 May 2016);
(b)
O’Sullivan and P & O Maritime Services Pty Ltd [2016] AATA 865
(10 October 2016);
(c)
O’Sullivan and P & O Maritime Services Pty Ltd [2018] AATA 2899
(15 August 2018);
(d)O’Sullivan v P & O Maritime Services Pty Ltd [1998] DCWA CIV2466 of 1997 (17 September 1998);
(e)
O’Sullivan v P & O Maritime Services Pty Ltd [2016] FCA 969
(9 August 2016);
(f)
O’Sullivan v P & O Maritime Services Pty Ltd [2017] FCA 47
(2 February 2017);
(g)
O’Sullivan v Barker J & Ors [2017] HCA P38 of 2017
(8 November 2017); and
(h)O’Sullivan v Barker J & Ors [2018] HCA P62 of 2017 (21 March 2018).
I adopt the facts as set out in the above decisions and judgments. It is not necessary to set the facts out in this decision other than to note the general nature of the applicant’s claim in these proceedings which was succinctly described by Member Webb as follows:[2]
Michael O’Sullivan injured his back in the course of his employment by P & O Maritime Services Pty Ltd (the Company) in 1993. He claimed and was paid benefits under the applicable Award. His employment with the Company and benefit payments ceased in 1995. In 2014, Mr O’Sullivan lodged a claim for compensation in respect of a back injury, citing the Company as his employer. The Company rejected the proposition that it was Mr O’Sullivan’s employer and refused the claim. Mr O’Sullivan requested reconsideration of this decision. As no decision was made within the time allowed, the refusal decision is deemed to have been affirmed. Mr O’Sullivan applied to the Tribunal for review.
[2] O’Sullivan and P&O Maritime Services Pty Ltd [2018] AATA 2899 at [1].
The respondent’s request for issue of summonses
The relevant facts surrounding the issue of the summonses are accurately set out in the respondent’s submissions dated 1 August 2019 as follows:
1. Six Summonses to Produce were lodged with the Administrative Appeals Tribunal (AAT) on 7 June 2019 addressed to:
(a)The Royal Australian College of Surgeons;
(b)Australian Health Practitioners Regulation Authority (AHPRA), WA Branch;
(c)Maersk Shipping (Seaway Agencies Pty Ltd);
(d)Sea Corporation Pty Ltd;
(e)TAMS Group Pty Ltd; and
(f)Atlas Professionals (Offshore Marine) Pty Ltd.
2. The Summonses were duly sealed by the Registry and a return date of
12 July 2019 was entered on each by Registry staff. After sealing occurred, the Respondent’s solicitors noted errors in the Summonses to Sea Corporation Pty Ltd, TAMS Group and Atlas Professionals (Offshore Marine). In each case, the categories of documents sought by those Summonses referred to the employment of the Applicant by Maersk which was in error. Consequently, the Respondent’s solicitors lodged Amended Summonses, correcting this typographical error. The Summonses were sealed by Registry staff and returned to the Respondent’s solicitors for service.
3. Upon receipt of the amended Summonses, those documents, together with the Summonses directed to the Royal Australian College of Surgeons, AHPRA and Maersk Shipping, were sent to Network Process Service Pty Ltd (NPS) for serving upon each recipient. NPS was instructed to serve each Summons to Produce on their intended recipients, as well as a covering letter prepared by the Respondent’s solicitors. A copy of the bundle of documents sent to NPS on 7 June 2019, comprising a letter of instruction, covering letters to each recipient and sealed Summonses to Produce are attached to these submissions as “Attachment A”.
4. Each covering letter:
(a)stated that HFW Australia acted on behalf of the Respondent;
(b)listed the categories of documents sought by the Summons; and
(c)suggested that all documents falling within the nominated categories should be sent to the AAT’s Registry in Western Australia.
5. On 20 June 2019, solicitors for the Respondent received telephone calls from employees of Sea Corporation Pty Ltd, TAMS Group Pty Ltd and Seaway Australia Pty Ltd.
6. The employee of Seaway Pty Ltd informed Mr Buckhurst of the Respondent’s solicitors that the company did not hold any records relating to the Applicant and that it was a different corporate entity to Maersk. Mr Buckhurst informed her that this should be relayed to the AAT in writing.
7. The employee of Sea Corporation Pty Ltd stated that she could not locate any records relating to the Applicant. The employee stated that Sea Corporation had used a crewing/manning agency in the past and that this entity may have records relating to the Applicant.
8. Mr Lee Bartlett of TAMS Group stated that he had located documents meeting the categories listed in the Summons to Produce that he had received and wanted to know where they should be sent. Mr Buckhurst asked that he send the documents to the AAT in accordance with the directions given on the Summons.
9. On 21 June 2019, the Respondent’s solicitors received a letter from Ms Lorraine Yii of the AHPRA seeking further information before a decision would be made whether or not to object to the Summons. A copy of this letter is attached to these submissions as “Attachment B”.
10. On 21 June 2019, the Respondent’s solicitors received an email from Mr A. Arscott of Atlas Professionals informing he was unable to locate any records relating to the Applicant in Atlas’ systems and that he could not locate any records unless precise dates of the Applicant’s employment and the name of the “employing entity” during that time could be supplied. A copy of this email is attached to these submissions as “Attachment C”.
11. ...
12. On 21 June 2019, Mr Bartlett of TAMS Group forwarded an email to the Respondent’s solicitors stating that a USB stick had been sent to the AAT containing the Applicant’s employee file. A copy of this email is attached to these submissions as “Attachment D”.
13. On 27 June 2019 the Respondent’s solicitors forwarded a letter to AHPRA in response to Ms Yii’s letter attached to this submission as “Attachment E”. Ms Yii responded by letter dated 1 July 2019 attached to this submission as “Attachment F”.
14. On 3 July 2019, Mr Arscott of Atlas Professional sent an email to the Respondent’s solicitors stating that as he had not received a response to his email of 21 June 2019, he considered the matter closed. A copy of this email is attached to this submission and marked as “Attachment G”.
15. On 28 June 2019 two Amended Summonses were lodged with the AAT to the Royal Australasian College of Surgeons (as opposed to the Royal Australian College of Surgeons) and the AHPRA. In addition to the change of name, the documents sought by both Summonses corrected a typographical error, changing the date “2994” to “1994” The documents sent to the Registry consisted of two pages, the latter of the pages containing the words “This summons has been issued at the request of the applicant/respondent [delete whichever is not applicable]” and the Respondent’s solicitors’ contact details.
16. Those Summonses were accepted and sealed by the Registry. The copies returned to the Respondent’s solicitors were one page in length. Both sealed Summonses were sent to NPS, for service. Copies of the covering letter to NPS, letters to be provided to recipients at the time of service and each amended Summons to Produce are attached to these submissions as “Attachment H.”.
17. After service of the Summonses on AHPRA, the Respondent’s solicitors sought instructions in relation to the letter provided by Ms Yii on 1 July 2019. Following receipt of those instructions, Mr Buckhurst of instructing solicitors informed Ms Yii by telephone on 8 July 2019 that an extension of the return of summons date would be sought. The Respondent’s solicitors informed the AAT on 9 July 2019 that they intended to seek an extension of the compliance date to 12 August 2019 by letter dated 9 July 2019 (a copy of this letter is attached as attachment I). The extension was subsequently granted by Deputy President Boyle on 12 July 2019.
18. The Respondent’s solicitors are informed that the Royal Australasian College of Surgeons has provided documents to the Tribunal.
19. No documents have been sent to the Respondent’s solicitors by any of the companies or organisations to which Summonses to Produce were directed. Those documents sent to the Tribunal’s registry have not been inspected by or on behalf of the Respondent.
At the time of the issue of the summonses on 28 June 2019 a letter was sent by the Tribunal to the applicant advising of the issue of the summonses and advising that if the applicant objected to the issue of the summonses, or to the making of the standard inspection orders, the applicant should notify the Tribunal within 14 days.
In response to the summonses, documents were produced to the Tribunal by the Royal Australasian College of Surgeons (RACS) on 11 July 2019 and by TAMS Group Pty Ltd (TAMS) on 27 June 2019.
The Tribunal made orders on 12 July 2019 providing for:
(a)inspection of the documents produced by RACS and TAMS by the applicant commencing on 12 July 2019;
(b)
subject to (c), inspection of those documents by the respondent commencing on
5 August 2019; and
(c)if the applicant objects to the respondent having leave to inspect any of the documents, the respondent’s right to inspect documents to which objection is taken is suspended until the applicant’s objection is determined by the Tribunal.
The applicant has objected to the respondent inspecting any of the documents produced by RACS and TAMS.
THE HEARING
The applicant’s objections were heard on 13 August 2019. The applicant represented himself and the respondent was represented by Mr Lenczner. The applicant filed written submissions dated 22 July 2019 and the respondent filed written submissions dated
1 August 2019. The applicant had also provided written submissions dated 17 June 2019 objecting to the issue of the summonses sought by the respondent. The applicant provided further documents on 7 August 2019.At the hearing on 13 August 2019 I found that the applicant had not raised any legitimate reason for the respondent not having leave to inspect the documents produced under the summonses. Accordingly, I did on 13 August 2019, make an order pursuant to s 40B(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) granting leave to the respondent to inspect the documents.
On 14 August 2019 the applicant requested written reasons for the decision made on
13 August 2019. These are those written reasons.LEGISLATION
Subsection 39(1) of the AAT Act relevantly provides:
(1) … 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.
Subsection 40A(1) of the AAT Act relevantly provides:
(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.
Subsections 40B(1) and (2) of the AAT Act relevantly provide as follows:
(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.
(2)However, an authorised officer must not make a decision about giving leave, and must instead arrange for the President or an authorised member of the Tribunal to make the decision, if:
(a)the officer considers that it is not appropriate for the officer to make the decision; or
(b)a party to the proceeding applies to the officer to have the decision made by a member of the Tribunal.
CONSIDERATION
It is important to note two things before considering the parties’ respective submissions.
Firstly, the applicant has not inspected the documents produced under the summonses and advised at the hearing that he would not be inspecting the documents.[3]
[3] Transcript at 6.
Secondly, the documents produced are relevant to the matters to be determined by the Tribunal. The summons to RACS sought the last known contact details of three identified doctors who had, at some stage, treated the applicant. As it turns out the documents produced by RACS indicate that two of those doctors are deceased. The summons addressed to TAMS sought documents relating to the applicant’s employment with TAMS from 2010. In both cases the documents sought by and produced under the summonses are of the type that are invariably sought by respondents in compensation matters where work and medical histories are relevant considerations.
I am satisfied that there is a real possibility that the documents that have been produced may assist in the resolution of the issues in the proceedings.[4]
The parties’ submissions
[4] See Comcare v Maganga (2008) 101 ALD 68; [2008] FCA 285 (Maganga) at [37].
Applicant’s submissions
Based on the applicant’s written submissions of 22 July 2019 and on his oral submissions made at the hearing, the thrust of the applicant’s objection appears to be as follows:
(a)The applicant had not given his consent to the issuing of the summonses.
(b)The back page of the summonses as issued had not been completed to delete “the applicant” where the pro-forma summons provided: “This summons has been issued at the request of the applicant/respondent [delete whichever is not applicable]”.
(c)The respondent’s solicitor included his firm’s phone number and him as the person to contact in the section of the pro-forma summons which provides:
For further information please contact:
Firm/Agency:
Person dealing:
Telephone:
(d)Two of the summonses that had been issued at the request of the respondent contained errors and were replaced by corrected summonses. Relevantly, the relevant summons that had been initially issued was wrongly addressed to the Royal Australian College of Surgeons rather than the Royal Australasian College of Surgeons and had referred to the year in a date as “2994” rather than “1994”.
(e)The respondent has in resisting the substantive proceedings disputed (amongst other things) that it was the applicant’s employer at the time of the claimed injury in 2014. The applicant asserts that:
The crucial reason was P&O have presented a defence to the claim that they are not the employer and have no identity or legal status to instruct their solicitors to apply to the AAT for such an order, because in what circumstances P&O was Mr O’Sullivans [sic] deemed employer for the purposes of proceedings before the Tribunal has not been considered and determined by the Tribunal [Gordon J High Court] and without that being established the issue of summonses requiring the mentioned persons to produce documents does not arise.[5]
[5] 22 July 2019 submissions at para. 10.
(f)The applicant disputes the Tribunal’s power to issue summonses.[6]
[6] 22 July 2019 submissions paras. 12 and 13.
(g)The summonses as issued were:
in a condition of disrepair, and he [the respondent’s lawyer] had prior opportunity to taint the witnesses or documents to be produced when he provided his contact details on the summonses, to refer to, for further information without declaring the position he, or his Firm [sic], were acting for in accordance with the document.
(h)The summonses did not comply with procedural fairness or natural justice.[7]
(i)The proper parties to proceedings under the Seafarers Rehabilitation and Compensation Act 1992 (Cth) (SRC Act) are the applicant and the employer and the Federal Court found that the respondent was not the “Actual” employer on the relevant date being 26 August 2014.[8] For the purposes of the AAT Act and the SRC Act the respondent cannot maintain that defence.[9]
(j)The summonses that contained errors had been served at the time when the summonses were revoked by the Tribunal.
(k)The copies of the summonses provided to the applicant were different to those issued by the Tribunal because the back page of the copies of the summonses sent by the Tribunal to the applicant do delete “whichever is not applicable [applicant/respondent]” and identify the summonses as having been issued at the request of the respondent.[10]
(l)On 5 July 2019 the applicant received correspondence from the respondent’s solicitors (with copies of summonses enclosed) which referred to “Amended” summonses as having been issued to various organisations which identified the amendments as being the correction of the reference to the Royal Australian College of Surgeons to the Royal Australasian College of Surgeons and the correction of the reference of 2994 to 1994, but did not mention the change on the back page to identify the summonses as having been issued at the request of the respondent.[11]
(m)The applicant accordingly considers the summonses as served to be “an illegal search warrant” because of the “error riddled condition that was accepted for filing, sealing, and service…” and that the respondent’s solicitors “may have tainted the evidence or, if called, the witnesses”.[12]
[7] 22 July 2019 submissions para. 13.
[8] 22 July 2019 submissions para. 14.
[9] 22 July 2019 submissions para. 16.
[10] 22 July 2019 submissions paras. 27 and 28.
[11] 22 July 2019 submissions paras. 29-31.
[12] 22 July 2019 submissions paras. 38 and 39.
In his oral submissions made at the hearing the applicant continued on the theme of the summonses somehow being ineffective because of what he sees as errors in the summonses. He submitted that:
MR O’SULLIVAN: All right. Well, as I said before, the Tribunal’s got an obligation to apply with the requirements of natural justice and procedural fairness. Now, Mr Buckhurst would not be able to register these documents in the state they were in any court in the land. The Federal Court or the High Court, he would be refused.[13]
[13] Transcript at 5.
When at the hearing I pointed out to the applicant that the documents that had been produced by RACS and TAMS were standard sorts of documents produced in and relevant to personal injury compensation claims, the applicant said that:[14]
[14] Transcript at 7.
MR O’SULLIVAN: It’s got my name on them and I’m a very private person.
DEPUTY PRESIDENT: Okay.
MR O’SULLIVAN: And I don’t like people digging into anything that’s got my name on it and if they do they’re going to get an argument.
DEPUTY PRESIDENT: So is that the basis?
MR O’SULLIVAN: No, that’s not the basis at all. The basis is that Mr Buckhurst has had a field day. He’s contacted people from TAMS, he’s put his name on that that he shouldn't have done. He hasn’t – he hasn’t filled the documents out properly. They shouldn’t have been filed in the first place and then he goes and has a field day and people are ringing him up from TAMS and my employers are ringing him up because he’s put his contact details on there and he’s having chats with them and, you know, how do I know what he’s talking with them.
He’s tainted the witnesses to start with. These witnesses might be called in for the hearing and this guy has just had an open field day with the whole lot of them and people – there’s a list of names. There’s Mrs Lorraine Lee from the – that’s AHPRA, that’s knocked him back. Now I notice he doesn’t want to – he doesn’t want to do business with AHPRA anymore because they’ve got a legal department so, ‘Oh we’ll drop that summons’.
But anyway, he’s had a field day with all of these people so that’s my point and they can – and these people – because I don’t know what’s been happening with them conversations he could have tainted them witnesses that I might need to call for the hearing.
The applicant repeatedly made personal attacks on the respondent’s solicitor and on officers of the Tribunal. The following exchange took place at the hearing:[15]
[15] Transcript at 9-10.
MR O’SULLIVAN: If you make a judgment today, you better – hopefully you make a good judgment on it.
DEPUTY PRESIDENT: Well, I haven’t heard anything yet as to why ---
MR O’SULLIVAN Well, I’ve just told you.
DEPUTY PRESIDENT: Okay. Is that ---
MR O’SULLIVAN: This guy’s been up to no good. He’s been up to mischief. He’s been ringing all the people, you know. He’s been ringing TAMS. How do I know what he said to TAMS?
DEPUTY PRESIDENT: Well, if TAMS give evidence then you can ask them those questions.
MR O’SULLIVAN: Okay, well he’s a known liar. It’s just about to the stage of unconscionable conduct by the solicitor.
DEPUTY PRESIDENT: Yes, okay.
MR O’SULLIVAN: And along the other lines. How can the tribunal amend the respondent’s documents because we’re going to get to these, that’s why I’ve sent you these, so there’s no – there’s no confusion. I’ve got attachment A---
…
MR O’SULLIVAN: Yes, it’s BB. So that’s the balls-up. And these are the updated. Now, the balls-up and the updated summonses are both stamped 5 June. The tribunal call the ‘updated’ and Mr Buckhurst calls them ‘amended’. So what are they, are they amended? Because they’re amended I didn’t get any of the paperwork that come through with the amendment and you didn’t revoke them.
So as I said at a guess I reckon that about 7 June Mr Buckhurst got on a phone to Jason Bee and Jason Bee said, ‘Look, mate. I’ll just backdate these for you and we’ll stamp them the 5th’ without giving me any paperwork. Right, so that’s that one. Now, here we go here: then we’ve got attachment C. This is correspondence from the respondent’s solicitor dated 27 June 2019 addressed to the AAT, ‘We’ve copied and directed to applicant including attachment amended unsealed summonses addressed to: The Proper Officer, Australian Health; and The Proper Officer, College of Surgeons. And there you go, he raves on. You’ve probably already read this. You’ve had a good look at them, I know you have.
Okay, now what have we got on the back page? Well, he hasn’t deleted it and he hasn’t deleted it, hasn’t deleted any of these documents, and he hasn’t deleted it to get the edge. It’s to get his foot through the door, to get his contact, for employers to contact him, so he can have a chat with them.
At the hearing I tried to explain to the applicant that the form of the summons provided for the issuing party to identify a contact person to whom the recipient of a summons could talk. The following exchange occurred:[16]
DEPUTY PRESIDENT: Sorry, what’s – that’s just providing the contact details.
MR O’SULLIVAN: Yes, I know.
DEPUTY PRESIDENT: It’s a standard provision in the summons.
MR O’SULLIVAN: Okay.
DEPUTY PRESIDENT: To give people – well, when they receive a summons we want to discuss the scope of the summons and things like that or if they can’t produce on time they might go to the party who served the summons and say, ‘We can’t do it on time. We need an extension’.
[16] Transcript at 12.
The applicant’s primary concern seemed to be that by not deleting the party on the last page (which the amended summonses did do) the party receiving the summons would not know that the person whose details were provided was acting for the respondent.
The final issue that the applicant had was that apparently the copies of the amended summonses that were sent to him by the respondent did not include the last page. The only thing appearing on the last page of the amended summonses was the statement that the summonses had been issued at the request of the respondent. In relation to that issue the following exchange occurred:[17]
[17] Transcript at 16-18.
DEPUTY PRESIDENT: Just let me finish. All he’s done obviously is failed to photocopy the back page, that’s the same document. Have a look at the signature.
MR O’SULLIVAN: Well, how many failures has this guy got to do?
DEPUTY PRESIDENT: So your point---
MR O’SULLIVAN: Come on, come on---
DEPUTY PRESIDENT: So your point is – the sum total of your point is that he sent you a copy of a summons which you had already received from – a full copy of which you had already received from the tribunal prior to receipt by the respondent’s solicitors of the copy which didn’t have the back page; was that it?
MR O’SULLIVAN: I’m saying that we have an obligation to be fair under 2(a) and we have an obligation ---
DEPUTY PRESIDENT: Yes, I’m aware of that.
MR O’SULLIVAN: --- for the tribunal to (indistinct words) the obligation that we’ve got.
…
DEPUTY PRESIDENT: You already had by 28 June, or some time shortly after that, you had a copy of the summonses – a full copy of the summonses including the back page; you already had those from the tribunal. Have a look at your document DD. By letter dated 28 June you received a letter from the tribunal, which we’ve gone through, which as you point out had the back page photocopied on it.
MR O’SULLIVAN: Yes.
DEPUTY PRESIDENT: And you subsequently then received from the respondent’s solicitors the same documents except they didn’t have the back page photocopied. Isn’t that clearly just an omission of having photocopied the back page which really is only telling you something that you already knew in any event; namely, that the summonses have been issued at the request of the respondent.
As well as apparently arguing that the respondent has no standing in the proceedings because it was not his employer at the time of his injury in 2014,[18] the applicant also sought to raise (apparently) a jurisdictional argument in the following exchange at the hearing:[19]
[18] Transcript at 33.
[19] Transcript at 35-36.
MR O’SULLIVAN: I need to get – I’ve got a punchline coming and I haven’t got to that punchline.
DEPUTY PRESIDENT: Well, unless there’s something that – I have to make – well, there is nothing that’s been presented today which would dissuade me from the view or would provide any legal basis for the respondents not to have a look at the documents.
MR O’SULLIVAN: But since I’ve been looking into the – we’ve been into the evidence part of things and I’ve discovered different things so, you know, – okay, well, I’ve got another issue. Mr Hotop – Hotop DP, he granted jurisdiction to the AAT to hear this matter. He was the first one ---
DEPUTY PRESIDENT: Was it, yes okay.
MR O’SULLIVAN: He granted the jurisdiction and there were some matters that weren’t disclosed to Mr Hotop, the Deputy President Hotop, that had a bearing on the tribunal’s jurisdiction and I’d like to be able to put them matters before they had a look at them documents.
…
DEPUTY PRESIDENT: But if you’re talking about jurisdiction again, you not being represented you’re going on to dangerous territory for yourself because if we don’t have jurisdiction then the application will have to be dismissed. Are you saying – and I can’t see why the tribunal wouldn’t have jurisdiction given that under the SRC Act it’s – well the SRCA Act, it is all that’s required is that there be a determination or request for a review of the determination and then you duly made your application for review of the respondent’s determination in relation to that issue or decision in relation to not reversing their determination.
As with the applicant’s apparent argument of the respondent not having standing because it was not his employer, I suggested that it would not be in the applicant’s interest to run an argument that the Tribunal did not have jurisdiction. Accordingly, that apparent line of argument was not developed. I am, in any event, satisfied that the Tribunal does have jurisdiction in this matter.
Respondent’s submissions
The thrust of the respondent’s written submissions were:
(a)The summonses were duly issued and served.
(b)At the time of service of the summonses a letter from the respondent’s lawyers was also served which:
(i)stated that HFW Australia acted on behalf of the Respondent;
(ii)listed the categories of documents sought by the Summons; and
(iii)suggested that all documents falling within the nominated categories should be sent to the AAT’s Registry in Western Australia.
(c)A number of the recipients of summonses contacted the respondent’s lawyer identified as the contact in the summonses, in one case advising that they did not have any relevant documents and in another case (Australian Health Practitioners Regulation Authority) seeking an extension of time to comply with the summons. In the case of the summons to TAMS, an officer of that company rang the respondent’s identified contact solicitor and asked what it was to do with the documents that it had located. They were advised to forward the documents to the Tribunal as required by the summons.
(d)At paragraph 33 of its written submissions, the respondent summarises the applicant’s objections as follows:
33. The Applicant in his letter of 22 July 2019 to the Administrative Appeals Tribunal has raised a number of objections to the issue of summonses and inspection of documents, specifically:
(a) The Applicant had not been notified of the intention to issue Summonses to Produce, nor was his consent sought (paragraphs 3, 8);
(b) The failure to delete “Applicant” from the back page of the Summonses to Produce (paragraphs 4, 13, 18, 25, 31 and 32S);
(c) The alleged inability of the Respondent to instruct its solicitors until such time as the Respondent is determined to be the Applicant’s employer (paragraph 10, 14-16);
(d) Conversations that Mr Buckhurst may have had with the recipients of the Summonses (paragraphs 19,22, 35 and 36); and
(e) “Invasion of privacy” (paragraph 37).
(Note: I agree that the above is a fair summary of the objections raised by the applicant.)
(e)In the respondent’s submission, the objections raised by the applicant cannot be maintained. Neither s 40A of the AAT Act (which is concerned with the issue of summonses to produce) nor s 40B of the AAT Act (which is concerned with inspections of documents) require notification of the other party or consent of that party to the issue of summonses. The failure to delete one of the “applicant/respondent” is not a precondition to the issue of a summons nor inspection of documents.
(f)In relation to the objections in paragraphs 33(c) and 33(d) the respondent submits that they do not provide any basis for the rendering of any of the summonses as being invalid nor precluding the inspection of any of the documents that have been produced by the respondent and in relation to the objection referred to in paragraph 33(e) (invasion of privacy), the respondent refers to and repeats its submissions set out in [e] above.
CONSIDERATION
A helpful statement of the relevant principles behind the Tribunal issuing summonses and subsequent access to documents produced under summons was provided by Deputy President Forgie in Panagiotou and TNT Australia Pty Ltd:[20]
19. A summons issued by the Tribunal has many similarities to a subpoena issued by a court. Both compel either a person to give evidence or produce documents or things for the purpose of, in the case of a subpoena, a court and, in the case of a summons issued under the AAT Act, the Tribunal to carry out its functions. Failure to comply with either a subpoena or a summons is an offence. Other parties to the action or matter in which a party requests that a subpoena or summons be issued may object to their being issued. Those to whom they are addressed may object to complying with them.
20. Whether a subpoena or a summons, it is usually issued without question in the first instance. That assumes that there is no reason from the description of the documents or the identity of the person to be summonsed to question the relevance of the documents to the issues to be decided in the particular court or tribunal proceeding. Three steps follow the issue of a summons. The first two precede the substantive hearing of the issue by the court or Tribunal and the third occurs during the course of, and as part of, that hearing. They have been identified by Moffit P in Waind and Hill v National Employers’ Mutual General Association Ltd:
“The first is obeying the subpoena, by the witness bringing the documents to the court and handing them to the judge. This step involves the determination of any objections of the witness to the subpoena, or to the production of the documents to the court pursuant to the subpoena. The second step is the decision of the judge concerning the preliminary use of the documents, which includes whether or not permission should be given to a party or parties to inspect the documents. The third step is the admission into evidence of the document in whole or in part; or the use of it in the process of evidence being put before the court by cross-examination or otherwise. It is the third step which alone provides material upon which ultimate decision in the case rests. In these three steps the stranger and the parties have different rights, and the function of the judge differs.”
(Footnotes omitted.)
[20] Panagiotou and TNT Australia Pty Ltd [2011] AATA 565 at [19]-[20].
Deputy President Forgie went on to consider the objection of the applicant in that case to the production of health records held by various doctors. She observed:[21]
24. The fact that any applicant must face when applying for review of a decision in the Tribunal is that things that are personal to him or to her must be revealed if they are relevant to the issues raised by his or her application. This case provides a very clear example. Mr Panagiotou may well regard matters relating to his health as personal to him as do most, if not all, people. That does not make them irrelevant to the issues that must be decided on his application. Mr Panagiotou cannot control what the Tribunal regards as relevant and nor can TNT. Only the Tribunal can do that.
25. What the Tribunal regards as relevant when it is actually reviewing a decision may be different from what it regards as relevant when it issues a summons. When reviewing a decision, it must have regard only to evidence or material that it actually regards as relevant. When it is issuing a summons for documents or material, it requires only that they appear to have relevance to the issues to be decided. That is, it may issue a summons requiring their production if they can reasonably be expected to throw some light on the issues that will have to be decided in reviewing the decision.
26. Each of the six summonses to which Mr Panagiotou has objected required the person to whom it was addressed to produce the same type of documents. I have set out their description at [7] above. Mr Panagiotou has not suggested that he has not been treated by any of the medical practitioners or at the medical practice to which the summonses were directed. On their face, the documents could reasonably be expected to throw some light on the issues that will have to be decided in reviewing the decision. Therefore, I have decided that Mr Panagiotou’s objection to the issue of the summonses is without foundation. The persons to whom the six summonses are directed must comply with them ...
(Footnotes omitted.)
[21] Ibid at [24]-[26].
The test to be applied in determining whether documents are relevant is that set out in Comcare vMaganga (Maganga) as follows:[22]
... the test of relevance is whether the documents relate to the proceedings such that there is a real possibility that they may assist in the resolution of issues in the proceedings ...
… The court may allow documents to be inspected if they are apparently relevant or are on the subject matter of the litigation … or if they might be used for a legitimate forensic purpose in cross-examination ...
(References omitted.)
[22] Maganga (n 4) at [37]-[38].
In relation to the applicant’s objection to the respondent having access to documents relating to his work and medical history, Deputy President Humphries in ZFCC and Comcare observed:[23]
The right to privacy, including the privacy of intimate medical records, is
well-established in Australian law. There are, however, circumstances where an individual may explicitly or implicitly surrender elements of that privacy in a legal context. One such context is where an individual seeks to secure a pension or allowance from Centrelink, eligibility for which is determined by establishing that the individual suffers a statutorily-determined level of illness or disability …
[23] ZFCC and Comcare [2018] AATA 1358 at [10].
The same implicit surrender would apply in the case of claim against an employer under the SRC Act. Deputy President Humphries went on to observe:
11. Medical records are generally produced through the issuing of a summons under s 40A on an applicant’s medical practitioner. When the records are produced to the Tribunal, an applicant will have the first opportunity to inspect those records. In almost all cases, those records are then made available to the respondent to inspect and copy pursuant to s 40B, often for the purpose of commissioning a medical report from a doctor regarding the applicant’s condition. An applicant may object to the respondent inspecting and copying those records, but the acceptable grounds for such objection are limited, as these reasons will explain.
12. An objection may assert that the summonsed records include documents covered by legal professional privilege, or refer to another person (such as a family member) in such a way as to unduly intrude on that person’s privacy. Such an objection will often result in a refusal to grant access by the other party to parts of those documents. Sometimes an applicant will object to inspection on the basis that the records – or parts of them – are not relevant to the proceedings before the Tribunal. There are practical reasons however for caution in denying access on this basis and why, conversely, an eclectic approach should be taken to the question of a party inspecting medical records.
The applicant’s arguments are not clear. I have not been able to find any legal basis for him opposing the respondent being granted leave to have access to the documents that have been produced. The applicant’s complaints seem to be directed at what he sees as problems with the process by which the summonses were issued, in particular the reissue of summonses correcting what could best be described as typographical errors, and in the form of the summonses (or at least the original version of some of the summonses) not identifying that they were issued at the request of the respondent.
In relation to these “issues”, as I explained to the applicant at the hearing, it is not uncommon for a party who discovers an error in a summons that has been issued to correct that error by requesting the issue of an amended summons. There is nothing sinister or devious about that course which is all that happened in this case.
Similarly there is nothing sinister or inappropriate in the respondent’s lawyer inserting his contact details in the summons. On the contrary, the standard form of the summons to produce documents provides for that information to be inserted so that if the recipient of the summons to produce documents has any queries they know who to contact.
The fact that the summonses (or at least the original version of some of them) did not delete “applicant” in the part stating on whose request the summons had been issued, is not material to the legal efficacy of the summons. I accept the respondent’s evidence that at the time of each summons being served a letter from the respondent’s solicitors was served on the recipient making it clear that the summons was issued at the request of the respondent. Even if such an omission was material, it would only go to the legal efficacy of the summons to produce, a matter that might be raised by a recipient resisting production of the documents. In the present case no recipient has taken the point, the documents have been produced to the Tribunal and the only issue is whether the respondent should be given leave to inspect the documents which have been produced under the summonses issued at its request.
As noted above, I am satisfied that the documents that have been produced are relevant in determining the matters in issue before the Tribunal under the test in Maganga. For the reasons set out above I am not satisfied that the applicant has established any recognised legal basis for the respondent not to have access to the documents that have been produced. I therefore dismiss the applicant’s objections to the respondent having access to the documents produced by the Royal Australasian College of Surgeons and TAMS Group Pty Ltd.
ORDER
The Tribunal orders that the respondent have leave to inspect the documents produced under summons by the Royal Australasian College of Surgeons and TAMS Group Pty Ltd.
I certify that the preceding 39 (thirty -nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle
....[sgd]....................................................................
Associate
Dated: 30 August 2019
Date of hearing: 13 August 2019 Applicant: In person Counsel for the Respondent: Mr J Lenczner Solicitors for the Respondent: Holman Fenwick Willan
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