Oliver and Comcare (Compensation) - [2018] AATA 1351

Oliver and Comcare (Compensation) [2018] AATA 1351 (17 May 2018)
Division:GENERAL DIVISION
File Number(s): 2016/4926, 2017/0156, 2017/7685
Re:Catrina Anne Oliver
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Mark Hyman, Member
Date:17 May 2018
Place:Canberra

The objection to the documents returned under the summons of 20 March 2018 is denied.

......................[sgd]..................................................
Mark Hyman, Member
Catchwords
PRACTICE AND PROCEDURE – summons – objection to inspection of summoned documents – relevance – other considerations – inspection granted
Legislation
Administrative Appeals Tribunal Act 1975, ss 39, 40A, 40B
Safety, Rehabilitation and Compensation Act 1988, s 37
Cases
Associated Dominions Assurance Society v John Fairfax & Sons (1952) 72 WN(NSW) 250
Comcarev Maganga [2008] FCA 285; (2008) 101 ALD 68
Hunt v Wark (1985) 40 SASR 489
Kennedy and Comcare [2014] AATA 369
Trade Practices Commission v Arnotts [1989] FCA 248
REASONS FOR DECISION
Mark Hyman, Member

This matter involves the resolution of a dispute between the applicant, Ms Catrina Oliver and the respondent, Comcare. Ms Oliver suffered an injury to her wrist and associated tissues in 2012 and Comcare accepted liability under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act). On 14 July 2016 the Department of Social Services, (the Department), Ms Oliver’s employer, determined under subsection 37(1) of the SRC Act that Ms Oliver should undertake a rehabilitation program, beginning on that day. On 25 July 2016 Ms Oliver sought reconsideration of the 14 July determination. On 19 August 2016 a review officer affirmed the determination of 14 July 2016. Ms Oliver sought review of that decision in this tribunal. On 4 November 2016 the Department made a determination suspending Ms Oliver’s entitlements to compensation under subsection 37(7) of the SRC Act. That decision also had the effect of suspending Ms Oliver’s rights to continue proceedings under the SRC Act and her review before the tribunal was accordingly suspended.
Ms Oliver applied for reconsideration of the determination of 4 November 2016, and in a reviewable decision of 23 December 2016 Comcare affirmed the determination of 4 November 2016. Ms Oliver has now sought review of the decision of 23 December 2016 affirming the suspension of her entitlements.
ISSUE
This decision does not deal with the substance of that review but rather with a procedural issue that has arisen in the course of preparing for the hearing of the matter. The Department has objected to the production of documents under summons on the grounds that some summoned documents are not relevant.
Whether the summoned documents are relevant depends on the issues the tribunal is called upon to resolve in this matter. The tribunal is yet to hear the matter and therefore to make a clear determination of the issues for resolution, but the applicant and respondent have each submitted a formulation of the issues the tribunal is to determine in this matter. For the applicant, the issues requiring resolution are framed as:
·whether the applicant had a reasonable excuse not to undertake the rehabilitation program dated 14 July 2016 as at 4 November 2016; or
·alternatively, whether the applicant had a reasonable excuse not to undertake the rehabilitation program dated 14 July 2016 as at 18 January 2017.
For the respondent, the issues are:
·whether the applicant “refused or failed” to undertake the rehabilitation program dated 14 July 2016; and
·if so, whether the applicant had a reasonable excuse for refusing or failing to undertake the rehabilitation program.
Although the applicant and respondent have not identified the issues in identical terms, it is plain that whether the applicant had a reasonable excuse for any failure to participate in the rehabilitation program identified in the determination of 14 July 2016 is common ground as an issue that the tribunal would be expected to determine.
THE SUMMONED DOCUMENTS
On 20 March 2018 the applicant sought a summons under section 40A of the Administrative Appeals Tribunal Act 1975 (the AAT Act) to produce documents held by the Department. On receiving the summons the Department objected to the submission of some of the summoned documents on the grounds of relevance. At a directions hearing held on 18 April 2018 with the participation of the parties and the Department, the Tribunal decided to assess the relevance of the contested summoned documents, and grant or deny access accordingly.
In the summons the applicant is seeking documents related to a Ms Lam, for an extended period Ms Oliver’s case manager, in the following terms:
All investigations, findings and report of Stephanie Wannell relating to complaints made by the Applicant against Margaret Lam (also known as Margie Lam).
The summoned material comprised 12 documents, of which the Department sought to deny access to four. The Department contended that access to the contested documents should be denied because:
·the documents were created more than a year after the events the subject of the reviewable decision, and after the removal of Ms Lam as the Applicant’s case manager;
·access to the documents does not have a legitimate forensic purpose as there is no reason to suppose that they will throw any light on the issues in dispute;
·access does not reasonably balance the rights of the Department and the public interest in the administration of justice;
·the documents were created for a purpose separate and distinct from the matters currently before the tribunal;
·the documents reflect an abbreviated and expedited process undertaken internally, carried out informally and on a confidential basis;
·the detailed materials now available to the parties and the tribunal would allow the same matters to be canvassed on a sounder basis without reference to the contested documents; and
·to the extent that the documents have been sought in order to impugn Ms Lam’s credibility, the summons exceeds what has been recognised in the case law as acceptable in that regard, in that Ms Lam’s credit is not a relevant issue in this proceeding.
CONSIDERATION
The tribunal has examined the contested documents.
Access to relevant material is plainly critical to procedural fairness in the tribunal. Subsection 39(1) of the AAT Act requires that the tribunal ensure that parties to a proceeding are given every reasonable opportunity to present their case, and in particular, to inspect documents to which the tribunal proposes to have regard in reaching a decision. The reach of that provision is clearly limited, however, to documents that are relevant to the matter, as the tribunal will inevitably limit its attention to such documents. But at this stage of a matter a party is still putting its case together and identifying evidence that may be relevant; the net is therefore appropriately cast broadly rather than narrowly and a party should not lightly be denied access to material that may prove relevant.
The leading case on access to summoned documents in the tribunal is Comcare v Maganga (2008) 101 ALD 68 (Maganga). In that case Bennett J noted that:
·a party seeking to inspect documents does not need to demonstrate that they exist (at [34]);
·seeking documents going to the credit of a crucial witness is not of itself fishing (at [34]);
·a party seeking to inspect documents does not need to show that they are relevant; rather, the basis for inspection of documents is that there is a real possibility that they may assist in resolving matters before the tribunal (at [37]); and
·among the bases for allowing inspection is that the documents are apparently relevant, or on the subject matter of the proceedings, or might legitimately be used for cross-examination (at [38]).
These and other issues of relevance are also canvassed in Kennedy and Comcare [2014] AATA 369, along with a discussion of a second reason (other than irrelevance) for vacating a summons, namely that the summons would be oppressive to the person summoned. Among the reasons cited for a decision allowing inspection of documents are “There must be some reason to suppose that the documents sought will be capable of being used ...” (Hunt v Wark (1985) 40 SASR 489 at 493); and that the documents “could reasonably be expected to throw light on some of the issues in the principal proceedings” (Trade Practices Commission v Arnotts [1989] FCA 248 at [41]). But a party is not allowed to use the summons power to trawl for documents on the off-chance that they may be useful (Associated Dominions Assurance Society v John Fairfax & Sons (1952) 72 WN(NSW) 250); and in particular (in the present context) to seek documents that might be used solely to impugn the credit of a witness, unless that witness’s credit is directly relevant to the matters to be determined.
Of the four objection documents, one is a report of Ms Stephanie Wannell, an Assistant Director in the Department (in the form of a signed minute to the Director of her section), two are brief emails between Ms Wannell and her supervisor, and the fourth is a response from another director in the Department to whom the minute was evidently forwarded. The minute from Ms Wannell includes some recommendations and the fourth document sets out the Department’s response to those recommendations.
Clearly the summons elicited documents; there is no question that documents answering the terms of the summons existed and it does not appear to have been oppressive to the Department to produce the documents. The question is whether they are sufficiently relevant to allow their inspection.
As noted above, it is critical to the applicant’s case whether or not she had a reasonable excuse for any refusal or failure to undertake a rehabilitation program. A broad range of materials could conceivably cast light on that subject, as it is inherently one that can be affected by many different incidents of a person’s employment. Documents recording the history of the Department’s dealings with the applicant, and commenting on that history, even if prepared well after the event and for a different purpose, are certainly capable of shedding light on that subject. The report of Ms Wannell and the documents that follow it fall into that category. It is not for the tribunal, at this stage of the proceedings, to determine that the documents are definitely relevant, but simply, as outlined by Bennett J in Maganga, that there is a real possibility of that outcome. The bar is set low at this stage. The documents meet the threshold of relevance for the purposes of inspection.
It is not apparent that the documents would provide the means for an attack on Ms Lam’s credibility or have been sought for that purpose.
It is not immediately apparent how the Department’s rights would be adversely affected by granting access to the contested documents. It is possible that the Department would be simply embarrassed at having internal, confidential or truncated processes exposed to view. I do not think it would be controversial in those circumstances to conclude, as I do, that the rights of the Department do not outweigh the public interest in the administration of justice so as to prevent access to the contested documents. The contested documents contain, however, the names of some departmental staff dealing with the applicant’s case. To the extent that those staff are otherwise not referred to in the rest of the documents in the case, an argument can be made that their names are not relevant to the case and that their privacy should be protected. I have therefore ordered that any such names, with the exception of those of Ms Lam and Ms Wannell, should be redacted.
CONCLUSION
The objection to the documents returned under the summons of 20 March 2018 is denied.
Access will be granted through the usual orders.

20. I certify that the preceding 19 (nineteen) paragraphs are a true copy of the reasons for the decision herein of Member Mark Hyman

21.

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Associate
Dated: 18 May 2018

Solicitors for the Applicant: Canberra Legal Group

Solicitors for the Respondent:

Solicitors for the Department:

Self-represented

Self-represented