Riger and Commonwealth Bank of Australia Limited (Compensation)
[2020] AATA 3528
•9 September 2020
Riger and Commonwealth Bank of Australia Limited (Compensation) [2020] AATA 3528 (9 September 2020)
Division:GENERAL DIVISION
File Number: 2018/3229
Re:Sarah-Anne Riger
APPLICANT
AndCommonwealth Bank of Australia Limited
RESPONDENT
DECISION
Tribunal:Senior Member P J Clauson AM
Date:9 September 2020
Place:Brisbane
The Tribunal DECIDES that in relation to Parts 1(b) to (d) inclusive of the Summons dated 23 March 2020 that the Summons be narrowed to require the disclosure of the following:
(a)All documents relating to complaints made by the Applicant against Ms A, Ms B and Ms C;
(b)The disciplinary records of Ms A, Ms B and Ms C;
(c)Any complaints made against Ms A, Ms B and Ms C by the Respondent’s staff, including:
(i)The names of complainants;
(ii)Dates or incidents giving rise to the complaint;
(iii)Nature of complaint;
(iv)Description of the alleged conduct;
(v)Investigation reports prepared by the Respondent or third-parties in relation to such complaints;
(vi)Responses provided by Ms A, Ms B and Ms C;
(vii)Responses provided by the Respondent to the complainant; and
(viii)Outcome of the complaint.
(d)Any letter of resignation offered by Ms B;
(e)Any letter of termination issued by the Respondent to Ms B; and
(f)Any notes or memorandum made during Ms B’s exit interview.
The Tribunal ORDERS the following:
(a)The Respondent produce the documents referred to in Parts 1(b) to (d) inclusive, as narrowed above, within fourteen (14) days; and
(b)The Respondent produce the document referred to in Part 7 within fourteen (14) days.
.............................[SGD]......................................
Senior Member P J Clauson AM
Catchwords
PRACTICE AND PROCEDURE – Administrative Appeals Tribunal Act 1975 (Cth) – Summons – Objection to Summons – Relevance of evidence to facts in issue – propensity evidence – similar fact evidence – rules of evidence in the Tribunal – objection refused – summons varied in scope – summons to be complied with
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Cases
Bushell v Repatriation Commission (1992) HCA 47
Comcare v Maganga (2008) FCA 285; (2008) 101 ALD 68
Goldsmith v Sandilands (2002) 190 ALR 370
Hehir v Smith [2002] QSC 092
Jacara Pty Ltd v Perpetual Trustees W.A. Ltd [2000] FCA 1886
Minister for Immigration and Ethnic Affairs and Pochi (1980) 4 ALD 139
Mullins v Workers’ Compensation Regulator; Ex Parte Drake International Pty Ltd (No. 2) [2020] QIRC 003
R. v The War Pension Entitlement Appeals Tribunal; Ex Parte Bott (1933) 50 CLR 228
Re Moore and Military Rehabilitation and Compensation Commission [2006] 90 ALD 417
Rothnie and Australian Securities and Investment Commission [2020] AATA 373
VBN & Anor. v Australian Prudential Regulation Authority & Anor [2005] AATA 1060; (2005) 92 ALD 455Weigand v Comcare [2002] FCA 1464
Secondary Materials
Law Reform Commission, Evidence, Report No. 26 (Interim, Volume 1, para. 785)
REASONS FOR DECISION
Senior Member P J Clauson AM
9 September 2020
BACKGROUND
The principal proceeding before the Tribunal is a review sought by the Applicant of a decision of the Respondent to deny her claim for Workers’ Compensation.
The Applicant lodged a Workers’ Compensation claim on 21 January 2018 pursuant to the Safety Rehabilitation and Compensation Act 1988 (‘the SRC Act’) for ‘Adjustment Disorder with mixed anxiety and depressed mood’.
The Applicant’s claim alleged that she was a victim of bullying and harassment by three of her superiors, namely Ms B, Ms C and Ms A whilst employed by the Respondent at its Warner and Strathpine branches.
The Respondent denied liability pursuant to section 14 of the SRC Act (‘the primary determination’).
The Applicant requested a review of the determination on 10 May 2018 and the Respondent affirmed the primary determination on 7 June 2018.
The Applicant, on 13 June 2018, sought a review of the determination by the AAT (‘this Tribunal’).
The Applicant requested the Tribunal to issue a Summons to produce documents on the ‘Proper Officer, Commonwealth Bank of Australia, Limited’ on 23 March 2020 (‘the Summons’).
The Summons requested production of the documents (inter alia below listed), namely:
(a)the complete records of Ms B, Ms C and Ms A;
(b)the formal complaint lodged by a customer of the Respondent in or about August 2017 against the Applicant;
(c)the leave record of the Applicant provided by Ms B during a meeting on 16 October 2018;
(d)complete copies of certain closed circuit television (‘CCTV’) footage, relating to the periods:
(i)8am to 10am AEST on 6, 13 and 27 September 2017 from all cameras in the ATM room at the Respondent’s Warner branch; and
(ii)10am to 4pm AEST on 18 October 2017 from the camera outside of the meeting room situated in the back right corner of the Respondent’s Strathpine branch.
On 23 March 2020, the Tribunal issued the sealed Summons, returnable at 9am on 27 April 2020.[1]
[1] Attachment ‘A’ to the Applicant’s submissions.
The Summons was received by the Proper Officer on 30 March 2020. [2]
[2] Applicant’s Submissions dated 20 May 2020, 2.
The Applicant’s lawyers, on 27 April 2020, received a responding email from the Respondent’s representative, Mary Kerekos, stating:
I refer to the above and confirm that documents with the exception of documents listed below were uploaded to the Registry in compliance with the Summons issued on CBA.
I will provide the documents in three parts. The documents not produced were as follows:
1. Parts 1(b), (c) and (d) of the Schedule - Complete employment records of: [REDACTED] A, [REDACTED] B and [REDACTED] C. The Respondent states that production of employment records for the above noted is inappropriate and is in contravention of privacy legislation.
2. Part 3 of the Schedule - Formal complaint lodged by a Commonwealth Bank customer - the Respondent is in the process of attempting to locate this document.
3. Part 7 of the Schedule - Leave record of the Applicant provided by [REDACTED] B in the meeting 18th October 2018 (sic - 2017). The Respondent is in the process of attempting to locate this document but in the interim has provided the Applicant’s leave records.
4. Part 8 of the Schedule - Complete copies of closed circuit CCTV footage - The Respondent is unable to comply with this request as there is no footage available prior to 2018.
It is noted that on 3 June 2020, the Respondent provided the Tribunal with a screenshot of a complaint lodged with the Commonwealth Bank on 1 August 2017 at 6:56 PM. The screenshot does not identify the subject of the complaint nor the author, however, the cover email explains that this document was being submitted in compliance with Part 3 of the Summons. This document is therefore considered received.
THE PARTIES’ CONTENTIONS
The Applicant contended that the Respondent was required to request from the Tribunal in writing an Order that it was not required to produce certain documents before the date specified in the Summons.
The Applicant also noted that the Respondent’s email of 27 April 2020:
(a)was sent on the date specified on the Summons and not prior to as required;
(b)did not request an order that they not be required to produce certain documents;
(c)did not provide reasons why Items 3 and 7 could not be located by the date specified on the Summons or when they might be provided;
(d)did not provide adequate reasons why the documents requested in Item 1 had not been provided.
Further it is noted, in the Respondent’s email of 27 April 2020, the Respondent stated its objection to the disclosure of Items 1(b) to (d) inclusive of the Summons as ‘inappropriate and is in contravention of privacy legislation’.
The Tribunal notes and accepts the Respondent’s stated intention that it no longer wishes to press its reliance, as earlier contended, on the privacy legislation as a basis for objecting to the Summons.[3]
[3] Respondent’s Submission in Reply as to Summons to Produce Documents dated 23 March 2020, filed 28 May 2020.
The Tribunal notes and accepts this concession and notes further the Respondent’s intention to rely upon the implied undertaking as to confidentiality by the Applicant should the Tribunal require the Respondent to provide complete or partially narrowed employment records of Ms B, Ms C and Ms A as set out in paragraph 40(a)(ii) of the Applicant’s submissions document.
Given that the Respondent has declined to agitate privacy issues as an objection ground to the Summons, the remaining aspect for consideration by the Tribunal is whether or not the material sought by the Applicant from the Respondent is too broad in its scope for the purpose of allowing an efficient review of the Respondent’s decision to refuse the Applicant’s claim under the SRC Act.
The Respondent has argued that neither the Applicant nor the Respondent carries a general ‘legal burden of proving facts in order to satisfy any entitlement to pay compensation’. This is opposed to the Applicant’s submissions that these documents are logically probative to a fact in issue as to whether the Applicant was subjected to bullying behaviour by those supervising employees (‘the Supervisors’).
The Respondent asserts that whether the Supervisors subjected the Applicant to bullying behaviour is not to the point because the Respondent does not deny that there were interactions between the Applicant and the Supervisors regarding the Applicant’s employment issues. The Respondent, however, argues that both the Delegate and the Review Officer accepted that there were no actions by the Supervisors indicating they had acted mala fides towards the Applicant. They did, however, acknowledge that such interactions were events that contributed to the ailment or aggravation of the ailment sufficiently to permit a finding that the Applicant, for the purposes of the SRA, sustained a disease.
The Respondent drew the Tribunal’s attention to the Federal Court decision of Weigand v Comcare [2002] FCA 1464 where the legal question for the purposes of the SRA is set out:
If the incident or state of affairs actually occurred and created in the mind of the employee (whether reasonable or unreasonable in the thinking of others)[4] and the perception contributed in a material degree to an aggravation of the employee’s ailment, the requirements of the definition of disease are fulfilled.
Thus, the Respondent submitted that no submission is required to be made by the Applicant that the Supervisors possessed a propensity to behave in the manner alleged by the Applicant and does not bear a burden of proof so to do.
[4] Tribunal’s emphasis.
The Tribunal also notes the words of Brennan J., as he then was, in the matter of Bushell v Repatriation Commission (1992) HCA 47 where he stated:
The notion that an onus of proof, which plays such an important part in fact-finding in adversarial proceedings before judicial Tribunals, has no part to play in these administrative proceedings.
Given that the Tribunal accepts the principle enunciated above, it needs to consider the views of the Applicant insofar as her argument that the Summons is not ‘inappropriate’ for the purpose of an anticipated review hearing de novo.
The Applicant contends that in coming to its decision regarding the suitability of the Summons, the Tribunal must draw distinctions between:
(a)whether the Respondent has a valid reason for refusing to comply with the Summons;
(b)whether the documents sought are admissible in the proceedings; and
(c)what weight the Tribunal should give to them in coming to its decision.
The Applicant asserts that even if the Respondent does not hold a valid reason for objecting to the Summons, the Tribunal may ultimately decide that the summonsed evidence is inadmissible or of little or no weight in the matter.
The Tribunal is unable to make that decision unless it has before it that material in the first instance to consider.
The Tribunal has a quite wide discretion as to the material upon which is may wish to rely in coming to a decision on any matter before it. Section 33(1)(c) recognises the scope of the Tribunal’s powers to seek and give consideration to any materials it may wish to be apprised of. The relevant sub-section states:
The Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.[5]
[5] Administrative Appeals Tribunal Act 1975 (Cth), section 33(1)(c).
The Applicant in this matter is in effect asserting that her Supervisors’ actions were, in her view, actions which went beyond what would constitute reasonable administrative action and, in fact, were of a bullying nature. It would seem that she has sought review of the previous determinations on this point on the basis that those reviews did not consider the possibility that evidence may have existed which may have indicated the possibility that mala fides behaviour may have been involved, thus taking the supervisory actions beyond reasonable administrative actions.
The Respondent has effectively labelled the Applicant’s Summons a ‘fishing’ expedition on the basis that the material sought is not necessary or relevant given the fact that the requirements for the definition of the Applicant’s disease have been established. That view, however, confines the scope of the evidence to that which has gone before in relation to those previous decisions, the last of which is the subject of a review before this Tribunal.
The Tribunal, in the process of informing itself ‘on any matter in such manner as it thinks appropriate’, may consider such evidence as is ‘logically probative’[6] and relevant to the issues before it. The Tribunal may also seek information or material it may consider necessary to consider whether it is or is not strictly admissible. The Applicant relies upon this broad legislative entitlement of which the Tribunal may avail itself and has cited R. v The War Pension Entitlement Appeals Tribunal; Ex Parte Bott[7] in support of this proposition.
[6] Minister for Immigration and Ethnic Affairs and Pochi (1980) 4 ALD 139.
[7] (1933) 50 CLR 228.
The Applicant in this matter clearly holds the belief that the actions of her Supervisors may have contributed to, or exacerbated her disease and exceeded what would be considered ‘reasonable administrative action’. Whether this view is rightly or wrongly held is not a matter for this Tribunal to consider, but for the Tribunal, at a later time and differently constituted to contemplate as part of the principal hearing to review the decision to reject the Applicant’s claim under the SRA. Whether the Applicant wishes to agitate this point would be a matter for the Applicant based on the evidence available at that time.
This then brings the Tribunal in its consideration as to the appropriateness of the Summons to examine whether or not the evidence which may be adduced by the exercise of the Summons could or may be ‘relevant in the overall context of the Applicant’s claim’.
In the matter of Goldsmith v Sandilands[8] it was stated that evidence is considered ‘relevant’ when it ‘could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding’.[9]
[8] (2002) 190 ALR 370.
[9] Gleeson CJ citing the Evidence Act1995 (NSW).
The Applicant has sought a review by this Tribunal of the decision to reject her claim in part on the basis that, she considers, as previously outlined herein, the actions of her Supervisors exceeded what would be considered reasonable administrative action and thus created a claimed fact that, in her view, has been placed in issue. The Applicant’s contention is that as the Supervisors’ actions went beyond reasonable, and she is entitled to attempt to establish if there existed a ‘propensity’ for the Supervisors to behave in an authoritarian, bullying manner.
The Applicant contends that because there is a lack of corroborative independent witnessing of the incidents that took place involving the Applicant and the Supervisors from time to time, or some of them, it is appropriate for the Summons to be complied with in order to establish if the Supervisors, as a group or individually, were possessed of a ‘propensity’ to behave in similar fashion towards subordinate staff members. It is argued that if such a style or pattern of behaviour can be shown to exist upon examination of the material sought under the Summons, then that would be relevant to the question whether if the Supervisors held such a ‘propensity’ for the type of behaviour alleged, would have been likely to have directed their supervisory role in similar style towards the Applicant. ‘Propensity’ has been accepted as a relevant consideration insofar as it forms a ‘link in the process of tending to show that (a party) did in fact behave in the particular way alleged’.[10]
[10] See Jacara Pty Ltd v Perpetual Trustees W.A. Ltd [2000] FCA 1886.
The Applicant drew the Tribunal’s attention to a description of ‘propensity’ as outlined in the Law Reform Commission, Evidence, Report No. 26 (Interim, Volume 1, para. 785) and which this Tribunal finds helpful as referring to an inclination or tendency to:
Act, think or feel in a particular way. Usually the propensity will be evidenced by specific conduct, leading (like character) to the inference that the person will behave in conformity with that propensity.
The admission of evidence supporting a pattern of similar behaviour is not a novel concept. In the matter of Hehir v Smith, Wilson J. allowed evidence from another party who alleged similar behaviour by the first Respondent towards them, to be admitted and found:
In a case such as this which will turn on the facts and the credibility of the witness, it is also not evidence which would simply be used to fortify a case. Rather, it may be crucial to the balance of the burden of proof where some of the alleged incidents were not witnessed by anybody else.[11]
[11] [2002] QSC 092 at [13].
The Applicant’s circumstances in this matter lie closer to the situation in Hehir given that there is a paucity of corroborative eyewitness evidence and the Applicant has to rely upon other evidence to attempt to show that her allegation of bullying behaviour could be substantiated. The evidence sought by the Applicant is, if it exists, prima facie evidence to support her originating claim that she had been bullied. It is not evidence sought to challenge any other witness’ credibility. It would be evidence, in the opinion of the Tribunal, falling into that class of evidence of complaints made by employees against a Manager as in Mullins v Workers’ Compensation Regulator; Ex Parte Drake International Pty Ltd (No. 2)[12] where it was held that the evidence of complaints made by employees against a Manager were considered prima facie relevant because the primary issue was whether the Applicant had been bullied by the Manager.
[12] [2020] QIRC 003.
There is no dispute that the Applicant is suffering from a ‘disease’ for the purposes of the definition pursuant to the SRA. The Applicant is not seeking out the information for the purpose of ‘finding a case’, but to seek evidence which she considers may be legitimately corroborative of her allegation of fact that her Supervisors, in her opinion, bullied her.
In the matter of Re Moore and Military Rehabilitation and Compensation Commission[13], Senior Member McCabe, as he then was, held that the Department of Defence was required to disclose certain materials from an individual’s personnel records who had assaulted the Applicant as they:
May shed some light on [the perpetrator’s] state of mind and behaviour towards the Applicant and others.
The Supervisors of the Applicant here are not accused of committing physical assault upon the Applicant, however, the Applicant’s contention is equally valid insofar as that access to the disciplinary records, inter alia, of the Supervisors may indicate that her beliefs are not unfounded that there could have been a propensity for those parties to bully subordinates in the workplace and thus contributed to her disease.
[13] [2006] 90 ALD 417 at [423].
The test as to whether a Summons should be issued was described by Bennett J. in the matter of Comcare v Maganga[14] in the following terms as to whether there:
… is a real possibility that (the documents required) may assist in the resolution of issues in the proceedings.
[14] [2008] FCA 285 (2008); 101 ALD 68 at [37].
Further, in the matter of VBN & Anor. v Australian Prudential Regulation Authority & Anor.[15] (‘VBN’) and cited with approval by Member Grigg in Rothnie and Australian Securities and Investment Commission[16], Deputy President Forgie explained that[17]:
[31]Given the nature of merits review by the Tribunal, documents that are relevant - - - must be documents that are connected with or pertinent to the multifaceted task, or a part of it, that the Tribunal must undertake.
[15] [2005] AATA 1060; (2005) 92 ALD 455.
[16] [2020] AATA 373.
[17] At paragraph [31].
The Tribunal, in this matter, considers that the documents sought by way of Summons are of ‘apparent relevance’ given the nature of the dispute[18] where Bennett J. reiterated that this approach was the test of relevance.
[18] Comcare v Maganga (2008) 101 ALD 68 at [38].
The Applicant’s claim for review is clearly based on the contention that the Respondent’s employees engaged in some form of bullying behaviour which was conducive to her ‘disease’ as defined in the SRA. This Tribunal has no interest in forming an opinion as to whether or not this was so. That is a matter for this Tribunal differently constituted at a later time.
This Tribunal accepts that records relating to the employment of parties who hold or held positions of a supervisory nature in the Respondent’s organisations would, in the circumstances around the Applicant’s claim, be of some ‘apparent relevance’ to the issues being agitated.[19] They would also be able to ‘throw some light on whether the Supervisors act (sic) in a bullying manner or not towards the Applicant’. They form part of that body of material which could assist the Tribunal in deciding the primary issue under contest, to make the correct and preferable decision.
[19] See Maganga, ibid.
The Tribunal, when considering the primary issue, is entitled to consider new material which may have a degree of ‘apparent relevance’ as to whether the Applicant was a victim of bullying behaviour as the Applicant alleges. Such information would logically assist the Tribunal in its determination of the primary issue under review. The Tribunal would be entitled to consider such material so produced.
CONCLUSION
The Tribunal finds, after consideration of the materials, that the documents sought by the Summons do have apparent relevance to the principal issue on review before the Tribunal.
DECISION
The Tribunal decides that in relation to Part 1(b) to (d) inclusive of the Summons that the scope of the Summons is narrowed to require the disclosure of the following:
(a)All documents relating to complaints made by the Applicant against Ms A, Ms B and Ms C;
(b)The disciplinary records of the Ms A, Ms B and Ms C;
(c)Any complaints made against Ms A, Ms B and Ms C by the Respondent’s staff, including:
(i)Names of complainants;
(ii)Date or dates of incident or incidents giving rise to the complaint;
(iii)Nature of complaint;
(iv)Description of the alleged conduct;
(v)Investigation reports prepared by the Respondent or third parties for or on behalf of the Respondent;
(vi)Responses provided by Ms A, Ms B and Ms C;
(vii)Responses provided by the Respondent to the complainant; and
(viii)Outcome of the complaint.
(d)Any letter of resignation offered by Ms B;
(e)Any letter of termination issued by the Respondent to Ms B; and
(f)Any notes or memoranda made during Ms B’s exit interview.
The Tribunal ORDERS the following:
(a)The Respondent produce the documents referred to in Part 1 of the Summons, as narrowed in compliance with this decision; and
(b)The Respondent produce the document referred to in Part 7 of the Summons within fourteen (14) days.
I certify that the preceding 49 (forty nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member P J Clauson AM
................................[SGD]........................................
Associate
Dated: 9 September 2020
Date(s) of hearing: 29 May 2020 Date final submissions received: 28 May 2020 Solicitors for the Applicant: J Hodge, Hall Payne Lawyers Counsel for the Respondent: J R Wallace
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