Scerri and Comcare
[2012] AATA 791
•13 November 2012
[2012] AATA 791
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/1984
Re
Edward Scerri
APPLICANT
And
Comcare
RESPONDENT
INTERLOCUTORY DECISION
Tribunal Mr S. Webb, Member
Date 13 November 2012 Place Canberra The summons address to Ms Carolyn Spiers, Principal Legal Adviser, Department of Veterans’ Affairs dated 29 October 2012 is set aside.
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Mr S. Webb, Member
PRACTICE AND PROCEDURE – summons to a third party to produce documents – objection on grounds of abuse of process, oppression, relevance and fishing – no legitimate purpose – summons set aside
Administrative Appeals Tribunal Act 1975 (Cth) s 40(1A)
Safety, Rehabilitation and Compensation Act (Cth) ss 5A, 5B, 14, 71
Comcare v Maganga (2008) 101 ALD 68
Hunt v Wark (1985) 40 SASR 489
REASONS FOR INTERLOCUTORY DECISION
Mr S. Webb, Member
13 November 2012
Edward Scerri lodged an application for review of a Comcare decision to reject his claim for compensation in respect of a neck injury. In the course of the proceedings, Comcare requested the Tribunal to issue a summons to Ms Carolyn Spiers of the Department of Veterans’ Affairs to produce –
All documents held by the Department of Veterans’ Affairs with respect to Edward Scerri (…) and his accepted vertigo condition (claim reference number SCE0003-01).
The summons was sealed on 29 October 2012.
On 7 November 2012, Mr Scerri’s legal representative objected to the summons.
Today, I heard the submissions of the parties on this issue.
The Tribunal’s power to issue or to revoke a summons is set out in s 40(1A) of the Administrative Appeals Tribunal Act 1975 (CTH).
Mr Scerri’s objection to the summons rises on four grounds:
·it requires the production of documents that are not relevant and that may relate to a collateral purpose;
·it is oppressive;
·the summons is an abuse of process; and
·the summons is akin to a fishing expedition.
In sum, Mr Scerri says that issues relating to vertigo are not in dispute and have been agreed. He says that on 12 October 2012 he fully disclosed the existence of a previous vertigo condition and that a related claim was accepted by the Department of Veterans’ Affairs. Furthermore, he says that he has conceded that the fall described in his statement of 12 October 2012, which lies at the heart of his present claim in respect of a neck injury, occurred during an episode of vertigo. These facts, in Mr Scerri’s submission are agreed, and they are not controversial. It appears that Mr Scerri is pressing his claim on the basis that he fell and injured his right shoulder and neck during a return to work program, in the course of his employment. I was informed that Comcare has accepted liability for the shoulder injury, but it is contesting the later claim in respect of a neck injury. Mr Scerri’s key objection is that the prior history of vertigo is simply not relevant to the matter to be determined by the Tribunal concerning his neck injury claim, even though the claimed neck injury is in the form of an aggravation of cervical spondylosis.
Comcare informed me that even though various facts may have been agreed concerning Mr Scerri’s vertigo condition, the documents held by the Department of Veterans’ Affairs may have some relevance to the matter that is before the Tribunal.
The key issue in these circumstances is the relevance of the materials to be produced under the summons to the proceedings, “such that there is a real possibility that they may assist in the resolution of issues in the proceedings”[1] - “… There must be some reason to suppose that the documents sought will be capable of being used …”[2]. Mr Scerri has no claim against Comcare in respect of the vertigo condition he suffers – his claim is that he suffered a neck injury for which Comcare is liable under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (CTH) (the SRC Act). I understand that he accepts that it was this condition that caused him to fall. Mr Scerri’s legal representative informed me that the Tribunal must decide whether Mr Scerri’s complaint of neck pain after his fall is a ‘disease’[3] and an ‘injury’[4] for the purposes of the SRC Act, being an ailment to which his employment contributed to a significant degree. This will require determination of whether the fall, which is not disputed, caused Mr Scerri’s neck symptoms and, if the fall occurred in the course of his employment, whether the employment contribution is of a significant degree. The Statement of Issues filed by Comcare is consistent with this analysis. But the documents to be produced under summons, concerning Mr Scerri’s vertigo, are not relevant to the resolution of those issues.
[1] Comcare v Maganga (2008) 101 ALD 68 at 76.
[2] Hunt v Wark (1985) 40 SASR 489 at 493.
[3] Safety, Rehabilitation and Compensation Act 1988 (Cth),, s 5B.
[4] Ibid, s 5A.
I am not persuaded that the 29 October 2012 summons is for the legitimate purpose of obtaining documents that are relevant to Mr Scerri’s neck injury claim and the proceedings presently on foot in the Tribunal. Comcare’s submissions have failed to establish the relevance of documents pertaining to Mr Scerri’s prior history of vertigo and related claims against the Department of Veterans’ Affairs or the Military Rehabilitation and Compensation Commission. No evidence has been adduced and no compelling submissions have been made to suggest that any documents produced under this summons are likely to weaken or advance the case of either party.
I note, but do not accept, Mr Scerri’s submissions concerning the absence of necessity to obtain documents to prove that which is agreed and not in dispute. The absence of necessity is not firm ground on which to agitate for the setting aside of a summons.
The proposition that the summons is oppressive has not been fleshed out with any substance. No objection has been made by Ms Spiers. Nevertheless, the conception of oppression in this context may extend to an unduly onerous obligation upon a person, unrelated to the proceedings, to collect and produce documents which can have little or no relevance to the proceedings. Even though, here, the terms and scope of the summons are clear, and little judgement would be necessary to identify documents within its terms, there is doubtless work and cost involved for Ms Spiers to achieve compliance, and in the absence of relevance, that may be an undue obligation to impose upon her and the Department.
Comcare conceded that it has power under s 71 of the SRC Act to obtain documents from the Department of Veterans’ Affairs. That is plainly correct and, in that light, it may be argued that it should use the power conferred upon it to obtain relevant documents and that to request the Tribunal to summons the Department is an abuse of process. I need go no further with these matters, but note that the summons procedure permits objection and provides someone such as Mr Scerri with an opportunity to resist disclosure, to claim privilege and to be heard, whereas the s 71 procedure does not.
Finally, a summons may only be used for a legitimate purpose. Using a summons to discover an unstated case is not such a purpose. Nor is it a legitimate purpose to use a summons for a collateral purpose to the particular case or proceedings. It is not legitimate for a party in proceedings before the Tribunal to use a summons to discover whether he or she has a case or to fish to find a case, rather than to obtain evidence to support his or her case. In the absence of evidence to establish the likely relevance of the documents to be produced, Comcare’s proposition that the documents may conceivably be of some relevance smacks of the kind of uncertainty associated with fishing – seeking discovery rather than proof.
In the result, the summons directed to Ms Spiers of the Department of Veterans’ Affairs dated 29 October 2012 is set aside.
I certify that the preceding 15 (fifteen) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member. ............................[sgd]....................................
Associate
Dated 13 November 2012
Date of directions hearing 13 November 2012 Advocate for the Applicant Jason Moffett Solicitors for the Applicant Snedden, Hall and Gallop Advocate for the Respondent Bradley Dean Solicitors for the Respondent Australian Government Solicitor
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