Rutherford and Comcare (Compensation) - [2018] AATA 3628

Rutherford and Comcare (Compensation) [2018] AATA 3628 (26 September 2018)
Division:GENERAL DIVISION
File Number(s): 2018/1736, 2018/2189
Re:Lynette Rutherford
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Mark Hyman, Member
Date:26 September 2018
Place:Canberra

Ms Rutherford’s objection to inspection of the documents in these two matters returned under summons up to the date of this decision is denied.
.....................[sgd]...................................................
Mark Hyman, Member
Catchwords
PRACTICE AND PROCEDURE – compensation – access to documents returned under summons – medical evidence – principles governing access – relevance – privacy - incomplete records – applicant’s application for material to be excluded from inspection is denied
Legislation
Administrative Appeals Tribunal Act 1975, ss 38AA, 39, 40A, 40B
Safety, Rehabilitation and Compensation Act 1988, s 14
Cases
Associated Dominions Assurance Society v John Fairfax & Sons (1952) 72 WN(NSW) 250
Comcare v Maganga (2008) 101 ALD 68
Hunt v Wark (1985) 40 SASR 489 at 493
Trade Practices Commission v Arnotts [1989] FCA 248
ZFCC and Comcare [2018] AATA 1358
REASONS FOR DECISION
Mark Hyman, Member
26 September 2018

This matter involves access by the respondent, Comcare, to documents involving the applicant, Ms Lynette Rutherford. Ms Rutherford has injuries for which Comcare has previously accepted liability under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act). More recently claims by Ms Rutherford in respect of conditions which she says arose from aspects of her treatment or rehabilitation for those accepted injuries have been denied by Comcare, and Ms Rutherford has two matters before the tribunal arising from her application for review of those decisions.
In one of the matters for which she is seeking review (2018/1736) Ms Rutherford has obtained a diagnosis of her condition. Comcare has not yet accepted that diagnosis, and proposes to send Ms Rutherford to a specialist to have that and competing diagnoses tested. Ms Rutherford also has a second matter before the tribunal, involving a claim for a musculoskeletal injury. As part of the general preparation for the case, and also for the purpose of informing its diagnostic specialist in the first matter, Comcare has sought documents under summons from Ms Rutherford’s treating doctors, covering an extended period. Ms Rutherford objects to the documents being inspected by Comcare, on the grounds that most of them are not relevant to the matters before the tribunal, and in one case, that the record returned under summons is incomplete.
ISSUE
The only issue before the tribunal at this stage of the proceedings is whether Comcare should be allowed to inspect the summoned documents.
Whether the documents are relevant to a matter clearly depends on the issues to be resolved in the matter. At this stage the parties are yet to settle the outlines of their case. A person’s medical records, in general, can be expected to provide at the very least context and background to a person’s compensation claim, unless those records have been generated in respect of something totally unrelated to the kind of injury being claimed. Ms Rutherford,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Rutherford and Comcare (Compensation)

Details

AGLC: Rutherford and Comcare (Compensation) [2018] AATA 3628
Case: [2018] AATA 3628
Decision Date: 26 September 2018

CaseChat Overview and Summary

This matter concerned an application by Ms Rutherford for access to certain documents, including a Medicare record, which had been returned under summons in a compensation proceeding before the Administrative Appeals Tribunal. Ms Rutherford objected to the inspection of these documents, arguing that they were either irrelevant or, in the case of the Medicare record, incomplete and therefore inaccurate.

The primary legal issue before the Tribunal was to determine the principles governing access to documents summoned in proceedings, particularly in the context of medical evidence, and whether Ms Rutherford's objections to inspection were valid. The Tribunal was required to balance the applicant's right to access material relevant to presenting her case against potential objections based on relevance, completeness, and privacy.

The Tribunal applied the principles established in *Comcare v Maganga* and other relevant case law, which dictate that a party seeking inspection of documents does not need to demonstrate their relevance conclusively. Instead, the threshold is that there is a real possibility the documents may assist in resolving the matters before the Tribunal, or that they are apparently relevant, on the subject matter of the proceedings, or might be used for cross-examination. The Tribunal noted that at the stage of case preparation, the net for relevance should be cast broadly, and access should not be lightly denied. Additional considerations for medical records, such as their technical nature and potential for incompleteness, were also taken into account, reinforcing the need for broad access to ensure all potentially relevant information is available.

The Tribunal determined that Ms Rutherford's objections were not sufficient to deny access to the contested documents. The application for exclusion of the material was denied.

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

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Ratio Decidendi

Legal Principle Established

The objection for all of the above bar one is based on Ms Rutherford’s view that the information is not relevant; the objection in the case of the Medicare record is that it is incomplete and therefore inaccurate. As noted above, a number of other providers are yet to produce documents, and Ms Rutherford has signalled that she may also object to access to their documents once they are produced.CONSIDERATION I have examined the documents to which Ms Rutherford has raised objection (the contested documents). Access to relevant material is plainly critical to procedural fairness in the tribunal. Subsection 39(1) of the AAT Act requires that the tribunal ensure that parties to a proceeding are given every reasonable opportunity to present their case, and in particular, to inspect documents to which the tribunal proposes to have regard in reaching a decision. The reach of that provision is clearly limited, however, to documents that are relevant to the matter, as the tribunal will inevitably limit its attention to such documents. But at this stage of a matter a party is still putting its case together and identifying evidence that may be relevant; the net is therefore appropriately cast broadly rather than narrowly and a party should not lightly be denied access to material that may prove relevant. The leading case on access to summoned documents in the tribunal is Comcare v Maganga (2008) 101 ALD 68 (Maganga). In that case Bennett J noted that: ·a party seeking to inspect documents does not need to demonstrate that they exist (at [34]);·a party seeking to inspect documents does not need to show that they are relevant; rather, the basis for inspection of documents is that there is a real possibility that they may assist in resolving matters before the tribunal (at [37]); and·among the bases for allowing inspection is that the documents are apparently relevant, or on the subject matter of the proceedings, or might legitimately be used for cross-examination (at [38]). These and other issues of relevance are also canvassed in Kennedy and Comcare [2014] AATA 369. Among the reasons cited for a decision allowing inspection of documents in court proceedings are “There must be some reason to suppose that the documents sought will be capable of being used ...” (Hunt v Wark (1985) 40 SASR 489 at 493); and that the documents “could reasonably be expected to throw light on some of the issues in the principal proceedings” (Trade Practices Commission v Arnotts [1989] FCA 248 at [41]). But a party is not allowed to use the summons power to trawl for documents on the off-chance that they may be useful (Associated Dominions Assurance Society v John Fairfax & Sons (1952) 72 WN(NSW) 250. In ZFCC and Comcare [2018] AATA 1358 (ZFCC) DP Humphries pointed to additional considerations that militate against the exclusion of medical evidence in particular. Thus it needs to be kept in mind that medical records are often in an abbreviated and technical form the meaning of which is unlikely to be apparent to a decision-maker who is not medically trained; that the connections between a symptom or observation and a medical condition may not always be apparent; and that a complete medical record may in any case sometimes be relevant to an applicant’s credit.