[2014] AATA 369
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/5878
2013/0026
Re
Ross Kennedy
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Mr S. Webb, Member
Date 11 June 2014 Place Canberra For the reasons following, requests for Summons 1 to 8 inclusive and Summons 21 are dismissed.
Requests for Summons 9 to 20 and Summons 22 to 25 inclusive are allowed.
Summons 26 to 29 inclusive, sealed on 3 June 2014, are set aside and vacated.
..........................[sgd]..............................................
Mr S. Webb, Member
PRACTICE AND PROCEDURE – summons – objection – legitimate forensic purpose – fishing expedition – adjectival relevance
Administrative Appeals Tribunal Act 1975, s 40
Safety, Rehabilitation and Compensation Act 1988 , ss 5A, 5B, 7(7)
Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN(NSW) 250
Australian Competition and Consumer Commission v Shell Co of Australia Ltd [1999] FCA 212
Comcare v Maganga (2008) 101 ALD 68
Cosco Holdings Pty Ltd v Federal Commissioner of Taxation [1997] FCA 1504
Hunt v Wark (1985) 40 SASR 489
South Pacific Hotel Services Inc v Southern Pacific Hotel Corporation Ltd [1984] 1 NSWLR 710Trade Practices Commission v Arnotts Pty Ltd & Ors [1989] FCA 248
REASONS FOR DECISION
Mr S. Webb, Member
11 June 2014
This matter stems from Ross Kennedy’s 2012 claims for compensation. Mr Kennedy maintains that he was injured in his previous employment by the Department of Industry – he says that he was bullied and badly treated to the extent that he suffered a psychological injury, and that this injury was subsequently aggravated by further bullying and bad treatment. Both claims were rejected by Comcare. In the result, Mr Kennedy lodged two applications for review.
The key issues in dispute
There are several key issues in dispute, none of which I am about to deal with now – the matters I must decide relate to summons under s 40 of the Administrative Appeals Tribunal Act 1975 (the AAT Act). Nonetheless, in order to address these matters it is necessary to understand Mr Kennedy’s case, at least as presently conceived. This requires brief consideration of the key issues in dispute.
The first key issue relates to the exclusionary effect of s 7(7) of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) and whether Mr Kennedy made a wilful and false representation about not having previously suffered from the mental illness he has claimed as an injury. This requires examination of Mr Kennedy’s history of mental illness and documents in which he has made statements about not previously suffering from the illness under claim.
The second key issue is whether his previous employment significantly contributed to cause or aggravate the mental illness under claim, such that a ‘disease’ is established for the purposes of s 5B of the SRC Act. This requires examination of medical evidence addressing the diagnosis, history and causal factors operative in Mr Kennedy’s mental illness under claim. It also requires consideration of workplace stressors or events that are…
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- Ross Kennedy and Comcare [2014] AATA 369
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- [2014] AATA 369
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CaseChat Overview and Summary
The legal issues the court needed to address included whether the summonses were properly executed and whether the documents sought were relevant to the proceedings. Additionally, the court had to consider whether the documents were subject to legal professional privilege or contained exempt information, which would render them inadmissible. The court also needed to determine whether the summonses were too broad or vague, making them unenforceable.
The court found that some of the summonses were unsigned and unsealed, rendering them invalid. It also found that certain requests were too broad, vague, or sought information that was not relevant to the proceedings. Furthermore, some of the documents were subject to legal professional privilege, or contained exempt information, such as personal or confidential data. The court concluded that certain summonses were overly broad and not specific enough to be enforceable. Consequently, the court set aside and vacated some of the summonses while allowing others. The court dismissed requests for some summonses and allowed requests for others, ensuring that only relevant and admissible documents were compelled.
In summary, the court's decision involved a thorough examination of the summonses and the documents sought, ensuring that only relevant and admissible documents were compelled. The court set aside and vacated certain summonses that were improperly executed or overly broad and allowed others that were properly executed and specific enough. The final orders included dismissing requests for certain summonses and allowing requests for others, ensuring that the proceedings were fair and just.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
For ease of reference, each of the summons is allocated a number, as follows:(a)unsigned and unsealed summons forms directed to Ms Glenys Beauchamp, Secretary, Department of Industry in respect of –(i)“… documents that were sent to Manufacturing Division staff including myself notifying of various relocation arrangements and directions to take place on 28 October 2011 likely to have been written by Mr Michael Lawson, Head, Manufacturing Division in September 2011 and/or October 2011” (Summons 1);(ii)“… any response to letter with Appendix A that I provided to Mr Michael Lawson, Head, Manufacturing Division on 16 July 2012. The letter is entitled: ‘Formal assessment, Response to 4th meeting notes.’” (Summons 2);(iii)“… documents that were produced in response to a Medical Certificate for Workers Compensation that I provided to my supervisor Ms Yvonne Noordhuis dated 22 June 2012” (Summons 3);(iv)“… documents that were produced in response to a Medical Certificate for Workers Compensation that I provided to my supervisor Ms Yvonne Noordhuis dated 29 June 2012” (Summons 4);(v)“… copies of Individual Performance Plan (IPP) (or equivalent) and Individual Development Plan (IDP) (or equivalent) for Ms Margaret Crooks of Department of Industry for years 2012/2011, 2010/2011, 2009/2010 and 2008/2009” (Summons 5);(vi)“… copies of Individual Performance Plan (IPP) (or equivalent) and Individual Development Plan (IDP) (or equivalent) for Mr Gary Davis of Department of Industry for years 2012/2011, 2010/2011, 2009/2010 and 2008/2009” (Summons 6);(vii)“… documents that relate to and/or support the claim made by Ms Jane McGowan of Human Resources Branch that I did not attend an Employment Assistance Program counselling session soon after she advised me that I should as per her statement below…” (Summons 7);(viii)“… documents that relate to and/or support the claim that I contacted Mr Michael Lawson on 17 January and requested a transfer as outlined and claimed by the Department of Industry in the statement that: ‘On 17 January Mr Kennedy contacted Mr Lawson requesting he be moved’…” (Summons 8);(ix)“… any documents that were produced by Mr Gary Davis, Ms Deborah Anton, Human Resources Branch (HR) or some other Department of Industry staff member during December 2011 and early January 2012 that may relate to and/or support the claim that any face-to-face meeting on my performance was held between Mr Davis and myself as outlined and claimed by the Department of Industry in the statement that ‘During December 2011 and early January 2012 Mr Kennedy Mr Davis and Ms Anton met regularly and feedback was provided to Mr Kennedy’…” (Summons 9);(x)“… documents that were produced in response to a report that I provided to Mr Gary Davis, Ms Deborah Anton, Dr Alison Manion and Ms Natalie Marsh on 10 January 2012 from a meeting held at Industry House on 6 December 2011” (Summons 10);(xi)“… documents that were produced in response to a feedback report that I drafted and provided to Human Resources Branch’s Ms Natalie Marsh and Ms Jane McGowan pertaining to a range of bad experiences that I had encountered in the first 6 months of working in the Department under supervisors Ms Margaret Crooks and Mr Gary Davis. I had completed the report as part of a 6 month survey feedback that I had received on-line from Ms McGowan in August 2011… I am particularly interested in any documents that were produced by Ms McGowan and the Department used to put in place any changes in response to the feedback that I had provided” (Summons 11);(xii)“… documents that relate to and/or support the allegation that I ‘stood over’ a Human resources officer as outlined and claimed by the Department of Industry in the statement that: ‘Due to a meeting between Ms McGowan and Mr Kennedy where Mr Kennedy stood over her…’…” (Summons 12);(xiii)“… documents that relate to and/or support the allegation that I ‘slammed’ a door in the face of a Human Resources officer as outlined and claimed by the Department of Industry in the statement that: ‘After the meeting Mr Kennedy left the room and slammed the door in Ms Marsh’s face’…” (Summons 13);(xiv)“… documents that were produced by the Department of Industry that may relate to and/or support the claim that I refused to accept feedback from Mr Davis at a meeting held at Industry House on 6 December 2011 as outlined and claimed by the Department of Industry in the statement that: ‘Mr Kennedy was argumentative and agitated throughout the meeting and refused to accept feedback from Mr Davis’…” (Summons 14);(xv)“… documents that were produced by the Department of Industry that may relate to and/or support the claims that I did not accept feedback from my supervisor Ms Margaret Crooks as outlined and claimed by the Department of Industry in the statement that: ‘Mr Kennedy continued to refuse to accept the feedback provided’ and ‘……..refutes all constructive criticism’…” (Summons 15);(xvi)“… documents that relate to and/or support the allegation that I was ‘overly aggressive’ in the workplace as outlined and claimed by the Department of Industry’s Mr Michael Lawson, Head, Manufacturing Division in the statement made in a letter to me on 16 July 2012…” (Summons 16);(xvii)“… documents that relate to and/or support the allegation that I ‘misrepresented the intent’ of a meeting held on 6 December 2011 as outlined and claimed by the Department of Industry in the statement that: ‘Ms Marsh discussed what the meeting was about for all parties as Mr Kennedy had misrepresented the intent of the meeting to others’…” (Summons 17);(xviii)“… documents including any witness statements or file notes that were produced by Ms Natalie Marsh, Mr Richard Byron or Ms Jane McGowan that relate to and/or support their claims that it was ‘clear’ to these persons that I that I [sic] was ‘aggressive’ as outlined and claimed by the Department of Industry in the statement below…” (Summons 18);(xix)“… documents including any witness statements or file notes that were produced by Ms Natalie Marsh, Mr Richard Byron or Ms Jane McGowan that relate to and/or support their claims that it was ‘clear’ to these persons that I that I [sic] was ‘intimidating’ as outlined and claimed by the Department of Industry in the statement below…” (Summons 19);(xx)“… documents that relate to and/or support the allegation that I was ‘intimidating’ at the workplace as outlined and claimed by the Department of Industry in the statement that: ‘Mr Kennedy’s behaviours have on a number of occasions been aggressive, unprofessional, and intimidating.’… Human Resources Branch …” (Summons 20);(xxi)“… documents that relate to and/or support the allegation that I was ‘intimidating’ at the workplace as outlined and claimed by the Department of Industry in the statement that: ‘Mr Kennedy’s behaviours have on a number of occasions been aggressive, unprofessional, and intimidating.’… HR Branch …” (Summons 21);(xxii)“… documents that relate to and/or support the allegation that I was ‘aggressive’ in the workplace as outlined and claimed by the Department of Industry in the statement that: ‘Mr Kennedy’s behaviours have a number of occasions been aggressive...’…” (Summons 22);(xxiii)“… documents that relate to and/or support the allegation that I demonstrated an ‘aggressive response to counselling’ as outlined and claimed by the Department of Industry in the statement that: ‘Ms Crook’s concern about Mr Kennedy’s aggressive response to counselling about his work performance.’…” (Summons 23);(xxiv)“… documents that relate to and/or support the allegation that I was ‘argumentative’ at the workplace as outlined and claimed by the Department of Industry in the statement that: ‘Mr Davis had some examples to help illustrate his concerns. Mr Kennedy was argumentative and agitated throughout the meeting.’…” (Summons 24);(xxv)“… documents that relate to and/or support the claims that I was a ‘difficult man’ at the workplace as outlined and claimed by the Department of Industry in the statement below…” (Summons 25);(b)signed and sealed summons directed to Ms Glenys Beauchamp, Secretary, Department of Industry in respect of –(xxvi)“… all documents including, but not limited to letters, emails, meeting notes, conversation notes, memoranda, interim or draft reports, final reports, file notes, letters of advice and notes of conferences relating to complaints, grievances, investigations or disciplinary procedures made with respect to Ms Margaret (Meg) Crooks in her employment at the Department of Industry” (Summons 26);(xxvii)“… all documents including, but not limited to letters, emails, meeting notes, conversation notes, memoranda, interim or draft reports, final reports, file notes, letters of advice and notes of conferences relating to complaints, grievances, investigations or disciplinary procedures made with respect to Mr Gary Davis in his employment at the Department of Industry” (Summons 27);(c)signed and sealed summons directed to Dr Paul Grimes, Secretary, Department of Agriculture in respect of –(xxviii)“… all documents including, but not limited to letters, emails, meeting notes, conversation notes, memoranda, interim or draft reports, final reports, file notes, letters of advice and notes of conferences relating to complaints, grievances, investigations or disciplinary procedures made with respect to Mr Gary Davis in his employment at the Department of Agriculture” (Summons 28); and(d)signed and sealed summons directed to Mr David Elder, Clerk of the House of representatives, Department of the House of Representatives in respect of –(xxix)“… all documents including, but not limited to letters, emails, meeting notes, conversation notes, memoranda, interim or draft reports, final reports, file notes, letters of advice and notes of conferences relating to complaints, grievances, investigations or disciplinary procedures made with respect to Ms Margaret (Meg) Crooks in her employment at the Department of the House of Representatives” (Summons 29).The objections and consideration of relevant issues