| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : RAMSHAW -v- SHERIDAN [2011] WADC 182 CORAM : REGISTRAR KINGSLEY HEARD : 12 OCTOBER 2011 DELIVERED : 26 OCTOBER 2011 FILE NO/S : CIV 2944 of 2008 BETWEEN : KIM RAMSHAW Plaintiff
AND
RICHARD SHERIDAN
First Defendant
ACCESS HOUSING ASSOCIATION INCORPORATED
Second Defendant
Catchwords: Practice - Application to require plaintiff to make a request pursuant to the Freedom of Information Act (1982) to Centrelink Legislation: Nil
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Result: Application allowed Representation: Counsel:
Plaintiff : Mr T P Heard
First Defendant : Ms D M Templeman
Second Defendant : No appearance
Solicitors:
Plaintiff : Bradford & Co
First Defendant : Gilchrist Connell
Second Defendant : Jarman McKenna
Case(s) referred to in judgment(s):
Attard v Hore [2002] QSC 437
Merkuloff v Yalisheff [2003] NSWSC 1183
Wray v Wray [2007] NSWSC 164
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1 REGISTRAR KINGSLEY: The first defendant has brought an application for orders that the plaintiff or her authorised representative apply to Centrelink under the Freedom of Information Act 1982 (Cth) (FOI) using Centrelink form FI031 for copies of all primary documents comprising the plaintiff's Centrelink file for the period 27 September 2002 to the present. Included in the application is an order that the first defendant pay any Centrelink fees and/or Centrelink processing charges applied to the application made by the plaintiff.
Context 2 The plaintiff pleads she was an administrative assistant and on 27 September 2007 was attempting to descend stairs at the first defendant's premises. A dog ran under the plaintiff's feet causing the plaintiff to become unbalanced, as a result of which she fell and suffered injury to her right knee, and lumbar spine with resulting sequelae, including depression. 3 As a result of the injury, the plaintiff pleads that she has been rendered totally unfit to return to work as an administrative assistant and claims an economic loss of at least $800 net per week to age 65. The first defendant does not admit the loss of earnings pleaded, both past and future. 4 In order to deal with that issue at trial, the first defendant seeks to obtain information as to what the plaintiff has told Centrelink. 5 The plaintiff opposes the application and says that an application to Centrelink has been made and information released. In an affidavit of Timothy Phillip Heard sworn 6 September 2011, at page 11, Mr Heard attaches a letter from Centrelink dated 28 June 2011 enclosing copies of benefit payment, taxation details, details of earnings and medical certificate information. The information in relation to earnings was provided from three years before the accident date to present. 6 The period of three years before the accident is a requirement imposed by Centrelink but I am not informed as to the legislative or legal basis for imposing that time limit. In this matter, the first defendant seeks Centrelink release documents five years prior to the accident date.
Discussion 7 Section 207 Social Security (Administration) Act 1999 imposes considerable restrictions on the release of information. It provides that an officer must not, except for the purposes of social security law, be (Page 4)
required to produce any documents in his or her possession to a court having the power to require the production of documents for the answering of questions. To overcome this imposition courts in New South Wales and Queensland have determined that a State court has the power to make in personam orders requiring the relevant party (in this case the plaintiff) authorise a request for documents under Centrelink's own procedures and the FOI (Merkuloff v Yalisheff [2003] NSWSC 1183; Wray v Wray [2007] NSWSC 164; Attard v Hore [2002] QSC 437). 8 In Ray and Attard the orders were that the applicant apply to Centrelink to obtain copies of records without any limitation as to time. In Merkuloff, whilst accepting the power to make such an order, Young CJ in Equity, no doubt having regard to the subject matter in dispute, preferred to stay the action until the plaintiff provided the defendant the information required and how the plaintiff got that information was a matter for the plaintiff. 9 Having regard to the authorities mentioned above I am of the opinion there is power to order a litigant to make a request under the FOI to Centrelink for their documents.
Does a registrar have power to make the order. 10 In my opinion, a legally qualified registrar of the court has power to make an in personam order. Section 53(1) District Court Act 1969 provides that a legally qualified registrar has the power conferred under the District Court Act and the same power and authority as a master and registrar of the Supreme Court. 11 Section 88 District Court Act provides that rules of court may provide for powers of registrars. Rule 8(1) District Court Rules 2005 states that a legally qualified registrar may deal with any proceedings that a judge may deal with in chambers with four limitations that are not relevant here. In any event a personam order sought is, in my opinion, no different than an order requiring a litigant to provide a list of documents verified on oath or to respond to interrogatories.
Are the documents sought relevant 12 The documents sought from the Centrelink file are relevant in the proceedings. The plaintiff's claim is that she has been rendered permanently unfit to return to employment, though, according to her interrogatories, she has now returned to work as a trainee phlebotomist. (Page 5)
13 The documents on the Centrelink file would be relevant to determining the plaintiff's capacity for work, the vocational information on file to determine what work the plaintiff may be capable of, and whether the plaintiff's claim to have lost full time uninterrupted earning capacity is supported on a historical basis. 14 Whilst this information may well be an intrusion on the plaintiff that perhaps is the price plaintiffs must pay if they are to persuade a judge to order substantial damages. This leads into the issue of whether the first defendant should seek an additional two years beyond what already has been delivered to the plaintiff pursuant to a formal request to Centrelink. 15 As previously stated, on the form FI301 the plaintiff was able to obtain information going back three years from the date of incident to the present time. The first defendant seeks to go back five years from the date of incident. This in my opinion would be achievable because under an FOI request there would be no restriction on the period for which documents may be obtained from Centrelink. 16 In the end it is a balancing act. By necessity there is an intrusion on the plaintiff however, that intrusion is slight and is ameliorated by the fact the first defendant is paying any costs levied under the FOI application. The additional two years sought may lead to a train of inquiry for the first defendant. 17 Accordingly, I am prepared to make orders in term of par 1 and par 2 of the first defendant's application. 18 I will hear counsel on the issue of costs. |