Ross Kennedy and Comcare
[2014] AATA 369
•11 June 2014
[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 covered by the two compensation claims Mr Kennedy lodged in March 2012.
In those claims he set out the circumstances and timing of the alleged injuries. In the first, Mr Kennedy claims that he was injured in “March-April 2011” by “Inappropriate, unfair, unreasonable and oppressive supervisory conduct. Untrue allegations” for which he first sought medical treatment on 4 April 2011.[1]
[1] T4.1 folios 46 and 48.
In the second, he claims that he was injured in “November 2011” and first sought medical treatment on 18 November 2011.[2] The causes of this claimed injury are said to be “25 incidents/events”, including –
“inappropriate and unreasonable supervisory behaviours which were designed to disengage, de-skill, disempower, demean, belittle and intimidate me”
“[six incidents of significance] where my supervisor made a number of untrue and unfounded accusations”
“… inappropriate behaviour towards me by two supervisors and a failure of my supervisor to follow due process at the mid-year performance assessments held on 28 November 2011 and 30 January 2012 and confusion and mis-handling of matters relating to an assessment undertaken 6 February 2012 – 16 March 2012.[3]
[2] T4.2 folio 60.
[3] Ibid, folio 62.
If a ‘disease’ is found to exist for the purposes of s 5B, the third key issue is whether the disease under each claim is excluded as an ‘injury’ for the purposes of the SRC Act by operation of the exclusionary elements of s 5A(1). In brief, a ‘disease’ is excluded from the meaning of an ‘injury’ if it is ‘suffered as a result of reasonable administrative action undertaken in a reasonable manner in respect of the employee’s employment’.
In this regard, Comcare says that, if Mr Kennedy suffered a ‘disease’ (which is not conceded), the disease resulted from actions that are within the scope of the exclusionary proviso. The specific actions Comcare relies upon are set out in paragraph 4.5 of its Statement of Facts and Contentions of 6 November 2013. Without setting out the alleged details of each action, it is sufficient to note for present purposes that these involve interactions between Mr Kennedy and his supervisors, Margaret Crooks and Gary Davis, regarding performance and behaviour issues in the period from March 2011 to 28 October 2011.
Determining these matters will require evidence about actions that are said to be exclusionary. This is not simply in order to determine what took place, but it is also to determine whether the subject action was reasonable and undertaken in a reasonable manner. Even though the test of reasonableness has an objective character, contextual considerations may assume some importance. For this reason, evidence addressing the sequence of events leading to a subject action, or that illuminates the true character of the action, whether in prospect or in retrospect, may be anticipated.
The proceedings so far
Initially, Mr Kennedy was legally represented in the proceedings before the Tribunal. Each party summoned documents. On 21 June 2013, a summons on the Department of Industry (the Department) was signed and sealed at the request of Mr Kennedy’s then lawyer, seeking
“All documents including, but not limited to, letters, emails, 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 Ross Kennedy for the period 31 January 2011 to date.”
A substantial body of documents was produced by the Department and initial access orders were given on 22 July 2013, excluding access to documents under claim of privilege. Subsequently, the claims of privilege were dealt with and orders were given in respect of those documents on 12 August 2013. I note in passing that the original request for summons does not expressly encompass performance procedures or actions relating to Mr Kennedy during the period specified.
A large volume of documents were filed by the parties, including witness statements from Mr Kennedy, Ms Crooks and Mr Davis, among others.
Case conferences were conducted and efforts were made to resolve Mr Kennedy’s disputed claims by conciliation. Both parties put on Statements of Facts, Issues and Contentions. When resolution was not agreed, the applications were readied for hearing. A hearing was listed for three days in April 2014.
Some weeks before the hearing, Mr Kennedy informed the Tribunal that his lawyer was no longer representing him. Mr Kennedy requested the hearing dates be vacated and sought time to obtain replacement legal representation. This was granted. He then decided that he would proceed on, alone, without legal representation, and set about reformulating his case.
Soon thereafter, on 8 May 2014, Mr Kennedy presented the Tribunal with 25 summons documents for signing and sealing. In the course of a directions hearing before me addressing other matters, Mr Kennedy handed copies of the unsealed summons documents to Comcare’s legal representative, Mr Andrew Schofield.
Soon after the directions hearing, Comcare objected to the issue of all but one of the summons.
The Tribunal listed a directions hearing to hear and rule on Comcare’s objections, providing an opportunity for both parties to be heard. Mr Kennedy objected to this procedure and sought vacation of the directions hearing. After a good deal of communication between Mr Kennedy and the Tribunal, which I do not need to address in any detail here, the directions hearing was relisted before me.
In the meantime, Comcare informed the Tribunal that it withdrew its objection to 24 of the summons sought by Mr Kennedy. But then, a short time later, it changed its mind again and re-asserted its original objections. I was informed that Comcare considered that by withdrawing objections it may, in some way, assist the proceedings before the Tribunal. It must be said that Comcare’s vacillation caused a deal of confusion and consternation, and it was unhelpful.
Undeterred by this, Mr Kennedy presented the Tribunal with four further summons documents he wanted sealed and issued. This was done by a Tribunal registrar on 3 June 2014. I understand that shortly thereafter Mr Kennedy collected and served the summons documents.
Shortly thereafter, Comcare objected and asked for each of the summons to be set aside. I decided to deal with these objections in the directions hearing, without further delay. Mr Kennedy was informed of this prior to the directions hearing.
On 4 June 2014, I heard the parties in respect of each of the summons requested by Mr Kennedy.
The summons
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
It is immediately apparent that Summons 20 and Summons 21 are the same, but for the words ‘Human Resource Branch’ in the former and ‘HR Branch’ in the latter. There is no purpose served in allowing this duplication to proceed any further. For this reason Mr Kennedy’s request for Summons 21 is dismissed.
In the course of the directions hearing, it came to light that Summons 1 is for all practical purposes the same as a summons that was previously signed and sealed by a registrar of the Tribunal on 5 May 2014. Mr Kennedy informed me that he could not recall if he had served this summons. The date specified for production of documents under the summons is 2 June 2014. I understand that no documents have been produced to the Tribunal. Service of the sealed summons is a matter for Mr Kennedy. If he has not done so, and the date for production has now passed, it is for him to make an application to the Tribunal for the sealed summons to be vacated and for a fresh summons to be issued. As there is doubt about whether or not Mr Kennedy served the summons, I will not now accede to his request for Summons 1 to be issued, and that request is dismissed.
Furthermore, Mr Kennedy informed me that he wanted to withdraw his requests in respect of Summons 2, Summons 3, Summons 4, Summons 5, Summons 6, Summons 7 and Summons 8. He told me that he wanted to redraft each Summons. That is a matter for him. I accept his oral statement of withdrawal and his requests in respect of Summons 2 to 8 inclusive are at an end.
Mr Schofield informed me that Comcare did not object to Summons 9. That notwithstanding, I must be satisfied that it is appropriate for the Summons to be issued.
Summons 9 is drafted in imprecise terms that require interpretation. The words ‘any documents’ that ‘may relate to and/or support the claim’ cast a wide net of uncertain scope. The uncertainty is not simply in terms of scope, but also in the result - one reader might consider that a document ‘may’ relate to the subject or ‘support the claim’, whereas another reader might come to a different conclusion. The word ‘relate’ is, itself, very broad, and it may be argued that it and its derivatives, and words of similar relational meaning which commonly appear in summons, are imprecise and require “fine judgement regarding the relevance of documents” sufficient to render summons oppressive – see Australian Competition and Consumer Commission v Shell Co of Australia Ltd[4] (Shell) at [45] to [53], for example. The real difficulty is that the person under summons may be left in a state of uncertainty about the scope of the requirement for production and whether or not a document ‘may relate to and/or support the claim’, such that it is considered relevant and must be produced.
[4] [1999] FCA 212.
There is no bright dividing line between what may readily be understood in one summons using relational terms and that which may remain opaque and uncertain in another. If a reader is left in a state of uncertainty, such that clear and certain judgements as to relevance of a document cannot be made, and where it is necessary to exercise judgement about relevance in a manner that exceeds what may reasonably be expected, the summons may be considered oppressive and struck out. Each case must be considered in its terms, and the need for judgement when determining the scope of relevance described by relational terms must be assessed in the context of the particular document.
Returning to Summons 9, I think that the subject is sufficiently clear (face-to-face performance meetings between Mr Kennedy and Mr Davis in December 2011 and January 2012) that the need for interpretation, and any attendant uncertainty, is sufficiently reduced to enable the relevance of documents within its terms to be identified without the need for fine judgement. In those circumstances, I would not strike out Summons 9 on grounds of uncertainty. It remains open for the person under summons to object if the task of compliance is too uncertain or so onerous that Summons 9 may be oppressive.
The relevance of documents sought in Summons 9 is also in issue. The Summons is framed in reference to meetings between Mr Kennedy and Mr Davis in December 2011 and January 2012, after the action on 28 October 2011 that Comcare says is exclusionary and after the date Mr Kennedy first sought medical treatment for the injury specified in his second claim form. However the question of relevance is not confined to this allegedly exclusionary action. Whether or not Mr Kennedy has suffered a ‘disease’, being an ailment to which his previous employment contributed to a significant degree, is a live issue. In the claim form, Mr Kennedy clearly nominates allegedly causative events relating to assessment processes up to 16 March 2012.
That being so, I see no reason why Summons 9 should not be issued.
Comcare objects to Summons 10 to 29. I have already dealt with Summons 21.
As I understand Comcare’s objections, there are two main points in contention – each Summons is onerous as it requires interpretation to identify documents captured within its terms; and each Summons is not relevant to issues the Tribunal must decide when hearing Mr Kennedy’s applications for review. On the point of relevance, Comcare says that in some of the requests for summons Mr Kennedy is engaged in a fishing expedition, trawling for documents without any reasonable basis for believing the documents exist, and in others he is seeking information that can have no meaningful bearing or relevance to the issues to be decided by the Tribunal, including documents relating to Ms Crooks and Mr Davis from previous years and employers, and documents relating to events well after the claimed injuries are said to have occurred.
Mr Kennedy rejects Comcare’s objections and maintains that the requests for summons are clear and precise, and highly relevant to the issues raised by his claims. He maintains that Ms Crooks and Mr Davis did not manage him appropriately or reasonably and, on the basis of his experience, he believes that each would be likely to have a track-record of poor management performance. It is this he seeks in Summons 5 and 6 (which have been withdrawn) and in Summons 26, 27, 28 and 29, which have been issued and served. In his submission, material of this kind would be highly relevant to his case. As regards his requests for summons directed to events after his claimed injuries, he asserts that the documents he seeks may illuminate events that contributed to his claimed injuries and assist him to present his case. His case, so the argument goes, is that the allegations made against him are frankly untrue or they are fabrications after the fact, and the actions taken against him that Comcare says are exclusionary are not reasonable and these were part of a pattern of bad management behaviour that continued after the claimed injuries.
The issue of a summons is to be determined under s 40(1A) to (1D) of the AAT Act, but the Act provides little guidance on factors that should be considered when deciding to refuse a request to issue a summons. Under common law principles relating to the issue of subpoenas by a court, which have been applied when deciding the issue of a summons by the Tribunal,[5] the summons must have a legitimate forensic purpose, otherwise it will be an abuse of process.[6] The relevance of the documents sought to the issues in the proceedings is to be assessed, “such that there is a real possibility that they may assist in the resolution of the issues in the proceedings”[7] and in making this assessment “There must be some reason to suppose that the documents sought will be capable of being used…”[8]. The test is whether the documents sought have adjectival or apparent relevance such that they “could reasonably be expected to throw light on some of the issues in the principal proceedings” [9]. But this is not the only consideration.
[5] Cosco Holdings Pty Ltd v Federal Commissioner of Taxation [1997] FCA 1504.
[6] Trade Practices Commission v Arnotts Pty Ltd & Ors [1989] FCA 248 at [42].
[7] Comcare v Maganga (2008) 101 ALD 68 at 76.
[8] Hunt v Wark (1985) 40 SASR 489 at 493.
[9] Trade Practices Commission v Arnotts Pty Ltd & Ors [1989] FCA 248 at [41]
As with the courts, the Tribunal’s power to control proceedings, and to refuse the issue of a summons, may be exercised to prevent injustice if the proceedings, or the requested summons, are oppressive or vexatious. In CoscoHoldings Pty Ltd v Federal Commissioner of Taxation,[10] Spender J quoted with approval what Clarke J said in South Pacific Hotel Services Inc v Southern Pacific Hotel Corporation Ltd[11], stressing –
“… 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.”[12]
[10] [1997] FCA 1504.
[11] [1984] 1 NSWLR 710.
[12] Ibid, at 719.
Furthermore, a summons that is merely speculative may not be allowed, or may be set aside – some reasonable basis for believing that the person has relevant material in his or her possession is required. Trawling to find a case on the basis of mere unsupported assertion has been referred to in the law over very many years as a ‘fishing expedition’. In Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd,[13] Owen J described it the following, oft quoted, metaphor –
“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.”[14]
[13] (1952) 72 WN(NSW) 250.
[14] Ibid, at 254.
The real point of substance behind the metaphor, subject to considerations of relevance, is whether the party pressing for the summons has reasonable grounds for believing that the person to be summoned holds documents or information of the kind sought that will assist in proof or presentation of the particular case – naked assertion or unsupported suspicion is unlikely to be enough. A summons request seeking documents from a person when there is no reasonable ground for believing that the named person holds documents of the kind sought is unlikely to be allowed.
Applying these principles, I make the following determinations in respect of Summons 10 to 29.
Summons 10 – Comcare’s primary objections are directed to the use of imprecise wording, “documents that were produced in response to”, and relevance. The requirement for documents produced in response to a report is not difficult to understand or apply when the subject report is clearly identified. As to the question of relevance, I accept Mr Kennedy’s assertion that the report he wrote on 10 January 2012 addressed issues discussed in a meeting on 6 December 2011 that related, in part at least, to matters of present relevance concerning performance and behaviour. This may have adjectival relevance to issues of causation and exclusion. The Summons is allowed.
Summons 11 – As with Summons 10, there is sufficient specificity in the terms of Summons 11 to enable the person summoned to understand what is sought and required without the need to exercise fine judgement. The material sought has apparent adjectival relevance to issues of causation and exclusion. The Summons is allowed.
Summons 12 to 25 (excluding Summons 21) – Each of these requests seek documents that “relate to and/or support” an allegation, claim or series of claims stated in documents produced by employees of the Department against Mr Kennedy. I understand that these allegations or claims form the basis, at least in part, of the case Mr Kennedy is pressing in terms of causation. He is also seeking to test the credit of the Departmental employees who have made allegations or claims against him and on whose evidence Comcare seeks to rely. It appears to me that documents of the kinds sought are likely to have adjectival relevance to the principal proceedings.
As to Comcare’s objection on grounds of imprecision, I am not persuaded that these requests for summons are oppressive in their terms. While the drafting is somewhat unusual and less precise in its terms than may optimally be expected, each is sufficiently specific in its subject to clearly convey to a reader what is required. Whether the task of complying with the terms of each Summons and ransacking the records of the Department may be oppressive in practice is not presently clear. If the person summoned seeks to raise an objection along those lines in due course, it can be dealt with at the time.
As regards fishing expeditions, these requests for summons do not meet that description. To my mind it is reasonable to believe that the Department’s responses to Mr Kennedy’s compensation claims and the statements provided by Departmental officers months after the claims were made, might have been drawn from records held by the Department or by Departmental officers. Furthermore, in a contemporary public service Department which relies upon file notes, emails and other kinds of records, it is reasonable to believe that Departmental officers may have produced records documenting events in which Mr Kennedy is said to have behaved badly or inappropriately. With the exception of Summons 21, I would allow Summons 12 to 25 inclusive.
Summons 26 to 29 – Each of these Summons has been signed and sealed by a registrar of the Tribunal, and served by Mr Kennedy. Each is seeking materials “relating to complaints, grievances, investigations or disciplinary procedures made with respect to” Ms Crooks and Mr Davis in their employment by the Department, and in former employments. Mr Kennedy says that materials of this kind are relevant to his case in two ways. Firstly, materials demonstrating past supervisory under-performance or poor practice will support his case that Ms Crooks and Mr Davis treated him badly, causing injury. And secondly, he is seeking these materials in order to conduct a forensic cross-examination of Ms Crooks and Mr Davis, and their supervisory competence in particular, as well as to test issues of credit.
Having heard Mr Kennedy, his submissions fail for two reasons.
Firstly, I fail to see any apparent relevance or legitimate forensic purpose in materials of this kind, if any exist. If materials are produced establishing that Ms Crooks or Mr Davis were subject to complaints, grievances, investigations or disciplinary procedures in the past, I cannot see any present relevance to the issues in the principal proceedings. Even if the existence of past complaints, investigations or disciplinary procedures is exposed, at the highest, this might provide a background against which to consider specific actions taken by Ms Crooks or Mr Davis against Mr Kennedy. This might be relevant if it could illuminate the events that Mr Kennedy says caused the injuries he has claimed, or if it enabled Mr Kennedy to controvert the testimony of Ms Crooks or Mr Davis, but no such illumination or grounds for historical controversy are presently apparent to me. If Mr Kennedy’s point relates to under-performance, this is not squarely expressed in the terms of either Summons. No cogent reason has been raised why materials of the kind sought might possibly assist in the resolution of any issue in the proceedings, such that they may be capable of being used for a legitimate purpose in the proceedings.
In my view, it is not appropriate to permit the Tribunal’s power to summons to be used to obtain materials for the purpose of attacking the character or reputation of a witness, when those matters are not relevant to issues in the primary proceedings. It should be noted that the SRC Act provides a no fault scheme in respect to workers compensation. For Mr Kennedy to succeed he does not need to prove fault on the part of his previous supervisors. The exclusionary proviso in s 5A(1) raises tests of reasonableness in respect of administrative actions taken in respect of his employment. These are objective tests, sharply focussed on the reasonableness of specific actions and the manner in which they were undertaken in Mr Kennedy’s case, that are not assisted by material from the past arising from other circumstances that may be prejudicial.
The second reason Mr Kennedy’s submissions fail is that he does not have a reasonable basis for believing that complaints, grievances, investigations or disciplinary procedures were raised against Ms Crooks or Mr Davis. His submission is that he was told by a work colleague that another person alleged Ms Crooks and Mr Davis had a poor record. Third hand hearsay of this kind does not provide a reasonable basis on which to mount a summons, when the subject of the hearsay is not relevant and it is not likely to assist resolution of issues in the proceedings in any event. This is a fishing expedition that should not be allowed.
For these reasons I set aside and vacate Summons 26, 27, 28 and 29.
Conclusion and Order
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.
I certify that the preceding 53 (fifty -three) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member
..................................[sgd]......................................
Associate
Dated 11 June 2014
Date of hearing 4 June 2014 Applicant In person Advocate for the Respondent Andrew Schofield Solicitors for the Respondent SRC Legal, Legal Services Group, Comcare
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