Pitman-Keys and Australian Capital Territory (Compensation)
[2023] AATA 1635
•7 June 2023
Pitman-Keys and Australian Capital Territory (Compensation) [2023] AATA 1635 (7 June 2023)
Division:GENERAL DIVISION
File Number(s): 2022/3645
Re:Cassandra Pitman-Keys
APPLICANT
Australian Capital TerritoryAnd
RESPONDENT
DECISION
Tribunal:Mr S. Webb, Member
Date:7 June 2023
Place:Canberra
The Objections are not upheld. The ACT is granted access to the documents produced under summons by Headspace Canberra without redaction.
................[SGD].............................
Mr S. Webb, Member
Catchwords
PRACTICE AND PROCEDURE – compensation claim for psychological injury – liability denied – thresholds for satisfaction of disease provisions – dispute about employment contribution to ailment or aggravation of ailment and administrative action taken – applicability of exclusionary provisions – summons – production of psychological counselling records – objections to grant of access – relevant principles – adjectival relevance – right to privacy – sensitivity of records and privacy consideration outweighed – objection refused
Legislation
Administrative Appeals Tribunal Act 1975 ss 2A, 35, 40A, 40B
Safety, Rehabilitation and Compensation Act 1988 ss 4, 5A, 5B, 7, 14
Cases
Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN(NSW) 250
AWB Limited v Honourable Terence Rhoderic Hudson Cole [2006] FCA 571
Becker and Minister for Immigration and Ethnic Affairs [1977] AATA 12
BrisConnections Finance Pty Ltd (Receiver and Manager Appointed) v Arup Pty Ltd [2016] FCA 906
Comcare v Maganga [2008] FCA 285
Cosco Holdings Pty Ltd v Federal Commissioner of Taxation [1997] FCA 1504
Farnaby and Military Rehabilitation and Compensation Commission [2007] AATA 1792
Frugtniet v Australian Securities and Investments Commission [2019] HCA 16
Hearne v Street [2008] HCA 36
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
Martinovic and Australian Capital Territory [2021] AATA 3435
O’Sullivan and P&O Maritime Services Pty Ltd [2019] AATA 2966
Panagiotou and TNT Australia Pty Ltd [2011] AATA 565
Trade Practices Commission v Arnotts Pty Ltd & Ors [1989] FCA 248
Wong v Sklavos [2014] FCAFC 120
REASONS FOR DECISION
Mr S. Webb, Member
7 June 2023
Cassandra Pitman-Keys claimed compensation in respect of an injury she allegedly sustained in employment by the Australian Capital Territory (ACT). Employers Mutual Limited (EML), the ACT’s compensation claims manager, decided to reject her claim. This decision was affirmed on reconsideration. Ms Pitman-Keys applied to the Tribunal for review.
In the course of the resulting proceedings, the ACT lodged a request for the Tribunal to summons treatment records of Headspace Canberra (Headspace) in respect of Ms Pitman-Keys. The summons was sealed and issued on 16 December 2022 (Summons), and it was subsequently served on Headspace.
On 10 January 2023, Headspace produced documents in compliance with the Summons (Headspace documents).
On 20 January 2023, the Tribunal issued access orders granting Ms Pitman-Keys access to the Headspace documents on 23 January 2023 and, subject to objection, the ACT access from 7 February 2023.
Headspace objected to the grant of access to the Headspace documents. Ultimately, on 28 March 2023, this objection was withdrawn, and it is not necessary to deal with it any further in these reasons. Consequent fresh access orders were made granting Ms Pitman-Keys immediate access to the Headspace documents, which she subsequently inspected.
On 6 April 2023, prior to grant of access to the ACT, Ms Pitman-Keys objected to the ACT being granted access to all or some of the documents on grounds of relevance. Ms Pitman-Keys asserted:
… the documents produced contain information that is not related to a matter in question and there is no basis to believe the documents will materially assist the Respondent prove an issue in the case.
…The communications with Headspace Canberra solely relate to non-employment issues which have caused the diagnosis of complex PTSD and anxiety at the time. The Applicant’s diagnosis of Adjustment Disorder with Mixed Anxiety and Depressed Mood as a result of workplace bullying is not discussed as they predate the injury by six years.[1]
[1] Applicant’s Objection to inspection of documents, 6 April 2023, paragraphs 2.1 and 3.3.
On 13 April 2023, I issued directions requiring Ms Pitman-Keys to provide greater specificity in respect of her objections.
On 20 April 2023, Ms Pitman-Keys complied with the directions and provided the Tribunal a redacted copy of the Headspace documents and written submissions. In her submissions, she frames her objections in respect of specific Headspace documents or parts of documents on grounds of relevance, asserting a lack of legitimate forensic purpose, and on personal privacy grounds.
On 27 April 2023, the ACT provided written submissions in reply, pressing for access to the unredacted Headspace documents.
It is these issues alone I will deal with in this interlocutory decision.
The objection
The particular records which are the subject of Ms Pitman-Keys’ objections are clinical notes of psychologists she consulted in 2013. Specifically, she objects to the ACT being granted access to clinical notes of psychological counselling sessions on 11 February 2013, 26 February 2013, 18 March 2013, 12 April 2013, 18 April 2013, 30 May 2013, 11 June 2013, 13 June 2013, 21 June 2013 and 31 July 2013.
Principles
The principles to be applied when dealing with objections of the kind Ms Pitman-Keys has made are well established. The application of principal requires a clear understanding of the Tribunal’s statutory functions and relevant powers when determining Ms Pitman-Keys’ application for review.
The Tribunal is not a court. It is a statutory body which does not exercise judicial power. Nevertheless, the Tribunal “is vested with statutory authority to determine issues with legally binding consequences”[2] and it makes administrative decisions which “affect people’s rights”.[3] It conducts business in a court-like manner, according to the judicial model.[4] The Tribunal is required to make the correct or preferable decision on the materials before it.
[2] AWB Limited v Honourable Terence Rhoderic Hudson Cole [2006] FCA 571 at [161].
[3] Farnaby and Military Rehabilitation and Compensation Commission [2007] AATA 1792 at [20].
[4] Becker and Minister for Immigration and Ethnic Affairs [1977] AATA 12, per Brennan J at [161].
This model underlies some of the statutory features of Tribunal proceedings and the powers conferred upon the Tribunal by the legislature when enacting the Administrative Appeals Tribunal Act 1975 (AAT Act), including –
(a)the obligation to ensure that each party has a reasonable opportunity to present their case and to inspect and make submissions about documents before the Tribunal (s 39);
(b)the requirement to act on evidence and to give reasons for its decision (s 34E, s 40 and s 43); and
(c)the power to summons persons to give evidence or to produce documents (s 40A).
In a case of the present kind, involving a claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) and review of a reviewable decision, the Tribunal has jurisdiction and power to make a fresh decision, addressing the same statutory questions the person who made the decision under review was bound to decide, exercising all of the powers and being subject to the same constraints that applied to the person who made the decision under review.[5] In so doing, the Tribunal exercises power under s 43(1) of the AAT Act for the purposes of the review.
[5] Frugtniet v Australian Securities and Investments Commission [2019] HCA 16 per Keifel CJ, Nettle and Keane JJ at [14]-[15] and Per Bell, Gageler, Gordon And Edelman JJ at [51].
Despite appearances, Tribunal proceedings are not strictly adversarial and, under s 33(1A) of the AAT Act, each party to a proceeding bears a legal obligation to assist the Tribunal to fulfill its statutory objective set out in s 2A –
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.
Under s 33(1), the Tribunal has power to determine procedure –
In a proceeding before the Tribunal:
(a) the procedure of the Tribunal is, subject to this Act and the regulations and to any other enactment, within the discretion of the Tribunal;
(b) the proceeding shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit; and
(c) the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.
Even though the Tribunal is not bound by the rules of evidence, it must make findings in a logically probative manner on the relevant materials placed before it according to substantial justice and the merits of the case.
Furthermore, under s 39(1) of the AAT Act, the Tribunal must ensure that each party has a reasonable opportunity to present their case, including inspecting and making 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.
In this context, even though the Tribunal does not have a formal mechanism or procedure for discovery, each party is entitled to prepare their case on the basis of an evidentiary mosaic constructed from materials of relevance to which access has been granted for the purposes of the proceedings.[6] There is no proper basis to narrow the entitlement to materials of direct or substantive relevance. While that threshold may be applicable in the hearing of an application, when considering the admission of evidence, a broader threshold applies to the discovery of relevant materials in the preparation of a case. The applicable threshold is one of apparent or adjectival relevance.[7]
[6] Lakatoi Universal Pty Limited and Ors v Walker and Ors [1998] NSWSC 470 at 497.
[7] BrisConnections Finance Pty Ltd (Receiver and Manager Appointed) v Arup Pty Ltd [2016] FCA 906 at [25].
It is in this context the Tribunal’s summons power in s 40A of the AAT Act and the power in s 40B to give a party leave to inspect documents produced in compliance with a summons must be considered. These powers operate for the purposes of a proceeding before the Tribunal.
Importantly, documents produced in compliance with a Tribunal summons for the purposes of the particular proceedings cannot be used for any other purpose.[8] This is a substantive rule of law which arises from disclosure under compulsion,[9] such that –
Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise to disclose documents or information, the party obtaining the disclosure cannot, without leave of the court, use it for any purpose other than that for which it is given unless it is received into evidence.[10]
[8] AAT President’s General Practice Direction, 28 February 2019, Part 5.
[9] Hearne v Street [2008] HCA 36, per Hayne, Heydon and Crennan JJ at [105]-[109].
[10] Ibid, at [96].
Grant of leave to inspect documents produced under a Tribunal summons must be for a legitimate forensic purpose. While it is not necessary to establish that the documents have substantial or direct relevance to the proceedings,[11] at a minimum, the documents must have apparent or adjectival relevance to the issues for determination in the proceedings.[12]
[11] Comcare v Maganga [2008] FCA 285 at [36].
[12] Jack Brabham Engines Pty Ltd v Beare [2010] FCA 35 at [7]-[9].
The threshold of apparent relevance was discussed in Martinovic and Australian Capital Territory[13]:
23. The test of apparent relevance involves two considerations:
(a) whether there is a real possibility that the documents could reasonably be expected to throw light on some of the issues in the principal proceedings[14] and may assist in the resolution of the issues in the proceedings;[15] 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, [16] 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.[17]
[13] [2021] AATA 3435.
[14] Trade Practices Commission v Arnotts Pty Ltd & Ors [1989] FCA 248 at [41].
[15] Comcare v Maganga [2008] FCA 285 at [37].
[16] Hunt v Wark (1985) 40 SASR 489 per King CJ at [493].
[17] Wong v Sklavos [2014] FCAFC 120 at [12].
Considering such matters, it is necessary to balance competing interests:
“... the need to balance the reasonableness of the burden imposed upon the recipient and the invasion of his private rights with the public interest in the due administration of justice and, in particular, that all material relevant to the issues be available to the parties to enable them to advance their respective cases. There is, in every case, a clash between these competing interests and whilst the balancing exercise to which I have referred must be carried out, it is the latter interest which is predominant.”[18]
[18] Cosco Holdings Pty Ltd v Federal Commissioner of Taxation [1997] FCA 1504, Spender J quoting with approval what Clarke J said in South Pacific Hotel Services Inc v Southern Pacific Hotel Corporation Ltd [1984] 1 NSWLR 710 at 719.
Trawling to find a case on the basis of mere unsupported speculation, without reasonable grounds for believing that access to the documents produced will assist in proof or presentation of the particular case, may amount to an impermissible ‘fishing expedition’:
“A `fishing expedition', in the sense in which the phrase has been used in the law, means, as I understand it, that a person who has no evidence that fish of a particular kind are in a pool desires to be at liberty to drag it for the purpose of finding out whether there are any there or not.”[19]
[19] Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN(NSW) 250 at 254.
The right to privacy, especially in respect of sensitive personal information contained in medical or psychological counselling records, is an important consideration.
The motivation to protect such records from disclosure to an employer or an insurer can readily be understood as such records may contain very private and sensitive information about the person’s experiences and innermost feelings or motivations, exposure of which may be potentially damaging, compromising or embarrassing. But an objection raised on such grounds may not be upheld if the information or the document is at least adjectivally relevant to the issues the Tribunal must decide.[20]
[20] Panagiotou and TNT Australia Pty Ltd [2011] AATA 565 at [24].
Some elements of an employee’s right to privacy, including in relation to intimate personal information contained in psychological counselling records, may be impliedly surrendered in the context of making a compensation claim. The employee should expect the entity responsible for deciding the claim, EML acting for the ACT in this case, to do so on the basis of relevant information. It is for this reason the Tribunal adopts a cautious approach when deciding an objection in respect of medical or psychological counselling records on grounds of relevance.[21]
[21] O’Sullivan and P&O Maritime Services Pty Ltd [2019] AATA 2966 at [32]-[33].
As Headspace operates in the ACT, it is germane to briefly refer to privacy protections in the ACT even though no such matters were raised in submissions by the parties. The Health Records Act (Privacy and Access) 1997 (ACT) (ACT Health Records Act) sets out privacy principles applicable to a person’s health records. By operation of s 6(1), compliance with the privacy principles is subject only to proof of authorised contravention under s 6(2). An authorised contravention includes a law of the Commonwealth or an order of a court of competent jurisdiction.
Principles 9 and 10, which limit the use and disclosure of health records, are expressly subject to a law of the Commonwealth or an order of a court of competent jurisdiction. As the summons provisions in s 40A and s 40B of the AAT Act are laws of the Commonwealth, the limits imposed by Principles 9 and 10 fall away.
Under complementary provisions of the Privacy Act 1988 (Cth) (Privacy Act) and the Australian Privacy Principle 6, the use or disclosure of personal information of a person for another purpose is not permitted by operation of s 6.1 of Part 3, Schedule 1 unless, under s 6(2)(b), the use or disclosure of the information is required or authorised by or under an Australian law or a court/tribunal order. Consequently, where inspection of personal information is authorised by order of the Tribunal under s 40B of the AAT Act, s 6.1 of Privacy Principle 6 does not apply.
Consideration
The substantive issues to be decided in Ms Pitman-Keys application turn on applicable thresholds of ‘injury’, ‘disease’ and related issues of liability to pay compensation.
Ms Pitman-Keys claim is in respect of a psychological ailment allegedly suffered as a result of bullying and harassment in her employment as a registered nurse by the ACT in the Calvary Public Hospital from 2019 to the date of claim: 4 October 2021.[22]
[22] T37, folios 76-77.
Considering the issues arising from the claim, and in order to make necessary findings, evidence relevant to s 5A, s 5B, s 7 and s 14 of the SRC Act will be required. The Tribunal will be required to address the following statutory questions:
(a)For the purposes of s 5B(1), did Ms Pitman-Keys suffer from an ‘ailment’ (a disease in the ordinary sense) or the aggravation of an ‘ailment’ as those terms are defined in s 4(1)?
(b)Taking account of the matters set out in s 5B(2), did her employment contribute to a significant degree to the ailment or aggravation such that it amounts to a ‘disease’?
(c)For the purposes of s 7()7), did she make a wilful and false representation she had not previously suffered from the disease (in the ordinary sense), such that it is deemed not to be an injury for the purposes of the SRC Act?
(d)For the purposes of s 5A(1), did the ‘disease’ result from reasonable administrative action taken in a reasonable manner in respect of her employment, such that the ‘disease’ is excluded from the meaning of ‘injury’?
(e)If not, for the purposes of s 14(1), did the ‘injury’ result in impairment or incapacity for work, such that the ACT is liable to pay Ms Pitman-Keys compensation for the ‘injury’?
When assessing whether Ms Pitman-Keys’ employment contributed to a degree that is substantially more than material to the psychological ailment she claimed as an injury, any other factors outside her employment which may have contributed to the ailment, including any predisposition or other matters affecting her health, should be taken into account under s 5B(2):
(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.
It is in this context, Ms Pitman-Keys medical and mental health history may be a relevant consideration. It may also be a relevant consideration in respect of s 7(7):
A disease suffered by an employee, or an aggravation of such a disease, shall not be taken to be an injury to the employee for the purposes of this Act if the employee has at any time, for purposes connected with his or her employment or proposed employment by the Commonwealth or a licensed corporation, made a wilful and false representation that he or she did not suffer, or had not previously suffered, from that disease.
Commonly, identifying causal factors which have contributed to a psychological ailment, and the extent to which each has contributed to the ailment or intruded upon the nexus with employment, requires consideration of relevant medical materials and psychological health records. Where there is a history of mental health symptomatology and treatment, records of such matters may be relevant, at least adjectivally, when considering if the employee has a predisposition to the ailment under claim and if the mental health history is a contributory factor which intrudes upon the significance of any employment contribution.
The nature of the psychological ailment Ms Pitman-Keys claimed as an injury is important. It appears Ms Pitman-Keys has a complex mental health history with diagnoses of an adjustment disorder[23] as well as probable Bipolar Affective Disorder II, Borderline Personality Disorder and Post-Traumatic Stress Disorder.[24] On the materials I have examined, it appears Ms Pitman-Keys has experienced psychological symptoms, including depression and anxiety in the past. In this context, when determining her claim in respect of the psychological ailment for which she is seeking compensation, her mental health history may illuminate possible contributory causes of subsequent psychological symptoms.
[23] See T48, folio 185-186, and T52, folio 241, for example.
[24] See T4, folio 9, T5, folio 11, T31, folio 55, T35, folio 70 and T42, folio 91, for example.
These are matters of fact and degree that turn on relevant medical and psychological records and related medical, psychiatric and psychological opinions. While ultimately these are matters for evidence at a hearing in the proceedings, in the context of each party preparing their case, I am satisfied they are matters for legitimate forensic enquiry.
I am not persuaded the ACT’s request for access to the documents produced by Headspace in their entirety amounts to a fishing expedition without legitimate purpose. Even though the 10 consultations recorded in the documents produced occurred in 2013 occurred 6 years prior to the circumstances Ms Pitman-Keys alleges caused the ailment for which she claimed compensation, the matters disclosed in the consultation records may illuminate aspects of her psychological constitution and her mental health history which have potential or adjectival relevance to assessment of her claim under the applicable statutory thresholds.
As I have said, giving leave to inspect the documents does not mean their contents will be exposed to broader scrutiny or disclosure. The ACT and EML are legally obligated not to use the documents for any purposes outside the Tribunal proceedings. Furthermore, there are mechanisms and powers available under the AAT Act which might be called upon to protect her privacy in respect of sensitive personal information. For example, should Ms Pitman-Keys be concerned about broader disclosure of sensitive personal information contained in the documents, or disclosure of her identity, she is at liberty to apply for confidentiality orders under s 35 of the AAT Act.
On balance, weighing the competing considerations of relevance and Ms Pitman-Keys privacy, I am not persuaded the objections to the ACT (and EML) inspecting the documents produced by Headspace in their entirety are made out. I am satisfied the documents in their entirety may be relevant, at least adjectivally, to matters the Tribunal will be required to decide in the review consequent to Ms Pitman-Keys’ application. While the controversial parts of the documents produced refer to sensitive personal matters and issues she was dealing with at the time, the extent to which, if at all, those issues illuminate or contribute to any predisposition or vulnerability in Ms Pitman-Keys is a matter which may relevantly be taken into account when applying the statutory thresholds under which her claim must be assessed and determined.
Ms Pitman-Keys mental health history is a relevant contextual consideration to be taken into account under s 5B(2) of the SRC Act. While the particular issues Ms Pitman-Keys encountered in 2013 which caused her to attend 10 counselling sessions may not have direct relevance to the ailment for which she claimed compensation, they are nevertheless adjectivally relevant. This is because the extent to which, if at all, her mental health history and the psychological issues she encountered in 2013 bear upon the ailment for which Ms Pitman-Keys claimed compensation are matters for the Tribunal to take into account when deciding if the ailment is a ‘disease’. The controversial counselling records illuminate aspects of Ms Pitman-Keys’ psychological state at the time, including the intensity of symptoms and related causal factors. Without consideration of the content of the counselling records in the context of other materials of relevance to Ms Pitman-Keys mental health history, it is not possible to determine, one way or the other, if her mental health in 2013 bears upon the question whether her employment contributed to a significant degree to the ailment for which she claimed compensation.
Finally, the content of the controversial records produced by Headspace might have some relevance to the factual findings the Tribunal may be required to make should issues be pressed under s 7(7) of the SRC Act. As I have said, the Tribunal is obliged to ensure each party is given a reasonable opportunity to prepare and present their case. Necessarily, in a case of this kind, the parties are entitled to inspect materials of apparent relevance in order to construct a mosaic of evidence on which the particular issues in the proceedings are to be assessed and determined. This obligation, and the right of each party to thoroughly prepare their case, reflects a powerful public interest in the fair and just review of administrative decisions in accordance with the objectives expressed in s 2A of the AAT Act:
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.
In conclusion, Ms Pitman-Keys’ objections on grounds of relevance and privacy are not made out.
Decision
The objections are not upheld. The ACT will be given leave to inspect the documents produced under summons by Headspace without redaction forthwith.
I certify that the preceding 47 (forty-seven) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member.
..............[SGD]............................
Associate
Dated: 7 June 2023
Decision made on the papers
Date final submissions received
27 April 2023
Representative for Applicant:
Mr Paul Robertson
Solicitor for Respondent:
Mr Ben Mason, Moray & Agnew Lawyers
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