Secretary, Department of Home Affairs and Comcare (Compensation) - [2022] AATA 3958

Secretary, Department of Home Affairs and Comcare (Compensation) [2022] AATA 3958 (22 November 2022)
Division:GENERAL DIVISION
File Number(s): 2022/3325
Re:Secretary, Department of Home Affairs
APPLICANT

ComcareAnd
RESPONDENT

AndDerek Elias
OTHER PARTY

Decision
Tribunal:Mr S. Webb, Member
Date:22 November 2022
Place:Canberra

Application for direction refused.
………………..[sgd].………………..
Mr S. Webb, Member
Catchwords
PRACTICE AND PROCEDURE – psychological injury claim – acceptance of claim by Comcare – application for review by employer – issues of employment causation – assertion of alcohol abuse – application for direction compelling claimant to produce financial records – objection to application – discretion – applicable principles – legitimate forensic purpose – threshold of apparent relevance – likely probative value of documents sought – privacy considerations – obligation to ensure each party is given a reasonable opportunity to present their case – speculation not sufficient – no reasonable basis made out for the direction sought – application refused
Legislation
Administrative Appeals Tribunal Act 1975 ss 2A, 33, 35, 37, 39, 40A, 40B, 61
Safety, Rehabilitation and Compensation Act 1988 ss 5A, 5B, 7, 14, 58, 71
Cases
Apotex Pty Ltd v Les Laboratories Servier [2012] FCA 359
Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN(NSW) 250
Brand v Digi-Tech (Australia) Pty Ltd [2001] NSWSC 425
Charara v Commissioner of Taxation [2016] FCA 451
Comcare v Maganga [2008] FCA 285
Comcare v Maganga [2008] FCA 285
Comcare v Muir [2016] FCA 346
CoscoHoldings Pty Ltd v Federal Commissioner of Taxation [1997] FCA 1504
Deputy Commissioner of Taxation v Shi [2021] HCA 22
Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10
Hastwell v Kott Gunning (No 5) [2020] FCA 621
Hearne v Street [2008] HCA 36
Hunt v Wark (1985) 40 SASR 489
Jack Brabham Engines Pty Ltd v Beare [2010] FCA 35
King v Australian Pharmaceutical Industries Ltd [2011] FCA 95
LPSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1563
O’Sullivan and P & O Maritime Services Pty Ltd [2019] AATA 4759
R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13
Smith v Comcare [2013] FCAFC 65
South Pacific Hotel Services Inc v Southern Pacific Hotel Corporation Ltd [1984] 1 NSWLR 710
Trade Practices Commission v Arnotts Pty Ltd & Ors [1989] FCA 248
White v Australian Capital Territory [2022] AATA 199
Wong v Sklavos [2014] FCAFC 120
ZFCC and Comcare (Compensation) [2018] AATA 1358
REASONS FOR DECISION
Mr S. Webb, Member
22 November 2022

Derek Elias claimed compensation in respect of an injury he asserts was caused in his employment by the Department of Home Affairs (Department). Comcare accepted the claim. The Secretary of the Department requested reconsideration of this decision. Comcare subsequently issued a reconsideration decision, affirming its original acceptance of liability for the claimed injury. The Secretary applied for review of the reconsideration decision by the Tribunal.
In the course of the resulting proceedings, at the request of the Secretary, records of Dr Elias’ treating medical practitioners were summonsed under s 40A(1) of the Administrative Appeals Tribunal Act 1975 (AAT Act).
Without objection from Dr Elias, access to these documents was granted to the Secretary under s 40B(1).
Subsequently, on 12 October 2022, the Secretary’s legal representative, the Australian Government Solicitor (AGS), applied to the Tribunal for a direction, stating:
It is apparent from the applicant's review of those records that Dr Elias suffers from 'alcohol abuse disorder'. This includes references in the records to his alcohol use well before the onset of the claimed condition. This is relevant to the Tribunal's consideration of all factors that contributed to the claimed adjustment disorder, particularly as Dr Elias has given a history that work stress led him to excessive drinking, but the records indicate possible prior and more recent alcohol abuse that do not appear to relate to his employment. Accordingly, the applicant is seeking to obtain objective evidence that will assist the Tribunal to determine when the alcohol intake commenced, and whether in actual fact alcohol intake may have been a precipitant of stress and fatigue, rather than the reverse. To that end we respectfully request the urgent issue of a direction for Dr Elias to provide his credit and bank records dating back to the start of his employment with the Applicant for the purposes of enabling identification of alcohol purchases.
On 14 October 2022, AGS lodged 5 requests for the Tribunal to summons records from:
(a)Brindabella Specialist Centre;
(b)Chief Minister, Treasury and Economic Development Directorate;
(c)NSW Police Force;
(d)Transport for NSW; and
(e)Services Australia.
In explanation for the requested summons in 5(b), (c), and (d) (the contested summons),[1] AGS stated:
The Applicant’s employee, Derek James Elias, has been diagnosed with ‘alcohol abuse disorder’ by his treating practitioners. Mr Elias reported to his psychologist Karen Ely on more than one occasion that he had been driving after drinking alcohol. The respondent seeks records relating to the employee’s driving record, including any criminal charges, fines, demerit point losses or cautions.
These records are relevant because they may assist in determining the factors that contributed to the claimed adjustment disorder. Previously summonsed records indicate a history of alcohol abuse that may not be related to his employment. The records will assist the Tribunal to determine when Mr Elias’ alcohol intake commenced, and whether this alcohol intake may have been a precipitant of stress and fatigue, rather than a reaction that occurred after the claimed condition.
The respondent considers that any activities of Mr Elias not related to the employment, and any other matters affecting his health are all matters that may be considered when determining if an ailment is a disease: s 5B(2)(c)-(e) Safety Rehabilitation and Compensation Act 1988 (Cth).
We consider the summons should be issued now so that both parties can progress their evidence.
[1] I note Dr Elias and Comcare also objected to the summons request in respect of Services Australia, but these objections were subsequently withdrawn.
Comcare and Dr Elias objected to the contested summons and the application for a direction compelling production of Dr Elias’ financial records.
On 25 October 2022, AGS wrote to Comcare “urgently seeking further information from Comcare as to how it intends to participate as this matter progresses, noting that the other party is now legally represented, and the Hardiman Principles[2]” and “any particular of the … objections that are still pressed”. In these submissions, AGS set out submissions in respect of the application for a direction, presently under consideration.
[2] The reference to Hardiman Principles is taken to be a reference to matters discussed by the High Court of Australia in R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13.
On 26 October 2022, each party was directed to make written submissions addressing the Secretary’s applications and related matters.
An interlocutory hearing was set down on 18 November 2022 for determination of the objections raised by Dr Elias and Comcare.
On 9 November 2022, AGS filed written submissions and extensive supporting materials for the Secretary.
On 16 November 2022, Comcare filed written submissions in which it changed its previously asserted position as a participant in the proceedings. It stated:
In accordance with Hardiman, Comcare respectfully suggests that it is appropriate for it to adopt a ‘less active’ role in the proceeding. In that respect, Comcare envisages its role to include the following:
(a) Submitting to orders/decision of the Tribunal;
(b) Limiting its role to:
(i) If necessary, making opening submissions as to the nature of the dispute;
(ii) Making submissions as to the powers and procedures of Comcare, including, but not limited to, any matters of potential scheme significance in the respect of which Comcare may need to be heard either in the Tribunal or in the Federal Court if an appeal were ultimately to be instituted;
(iii) Assisting the Tribunal when properly called on to do so.
(c) Submitting any further documents which may assist the Tribunal to make the correct or preferable decision.
I note in passing, even though the decision under review was made under applicable provisions of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act), Comcare has legal obligations as the maker of the decision under review in proceedings under the AAT Act. Comcare is required to lodge all material documents in its holdings under s 37 and s 38AA of the AAT Act. Additionally, under s 33(1AA) of the AAT Act, Comcare must use its best endeavours to assist the Tribunal to make its decision in respect of the proceeding and, furthermore, under s 33(1AB) Comcare must use its best endeavours to assist the Tribunal to fulfil the objectives in s 2A of the AAT Act. These obligations are mandatory and not optional.
Despite further controversies which it is not necessary to detail or dwell upon for present purposes, on 16 November 2022, Dr Elias filed written submissions and withdrew his objection to the Secretary’s requests in respect of the contested summons but maintained his objection to the application for a direction requiring production of his financial records. In so doing, he stated his driving records “are irrelevant to the proceedings currently before the Tribunal and there is no proper basis to justify the production of such information”.
This notwithstanding, the contested summons were sealed and issued by the Tribunal on 17 November 2022.
The issue remaining for determination is the request made by AGS on the Secretary’s account for a direction requiring Dr Elias to produce financial records from the commencement of his employment by the Department, expressly put in the following terms:
By 4pm on [2 business days after the direction is made], Derek Elias must file and serve copies of all unaltered credit card and bank statements for all accounts which bear any of his legal names, or which he is authorised to access, in the period from 13 August 2018 – 31 October 2022.
The parties were heard on this application and related objections maintained by Dr Elias. Each party was legally represented. Counsel for the Secretary, Ms Sarah Wright, and counsel for Dr Elias, Mr Andrew Berger KC, made extensive oral submissions during the interlocutory hearing.
Dr Elias objected to the Secretary’s application for a direction on two grounds.
Firstly, he argues the application is no more than a ‘fishing expedition’ (referring to the oft cited words of Owen J in Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd[3]). In this respect, Dr Elias relied on the principles summarised by Bennett J in Apotex Pty Ltd v Les Laboratories Servier (Apotex)[4] when arguing the application lacks any reasonable basis beyond speculation and the material is not reasonably likely to add to the relevant evidence in the case. In his submission, there is not sufficient material on which to reasonably suspect Dr Elias suffered from an alcohol abuse disorder prior to the onset of the ailment for which he has claimed compensation, or whether consumption of alcohol was a causal factor in the onset of that ailment.
[3] (1952) 72 WN(NSW) 250 at 254
[4] [2012] FCA 359 at [23]-[27].
Furthermore, Dr Elias contended even if financial records of the kinds sought were capable of proving alcohol purchases, this would not reveal who made the purchase, the purpose of the purchase, what was purchased, when the purchased item was consumed and who consumed it. In his submission, credit card and bank records, alone, could not prove any consumption of alcohol by Dr Elias and, while such records might provide some basis for cross-examination of Dr Elias, the prospect Dr Elias might clearly recall details of specific purchases up to 4 years ago is highly unlikely.
Secondly, Dr Elias argued the application for a direction requiring him to produce to his employer unaltered credit card and bank records, which are inherently private, represents an unjustified and inappropriate invasion of his and his family’s right to privacy. This, he asserted, is especially so as it is his employer seeking access to his private financial records. Intrusive powers to compel production of personal records, so the argument goes, should not be used without a reasonable basis for doing so. The intrusive nature of the direction sought and the intrusion upon Dr Elias’ privacy which would result should the direction be made, enabling his employer to trawl his private financial records, are relevant factors which should be taken into account when exercising the discretion conferred by s 33(2A) of the AAT Act.
Comcare demurred from pressing its earlier objection to the Secretary’s application for a direction requiring Dr Elias to produce financial records.
The Secretary asserts the financial information sought has apparent relevance to issues of central importance in the proceedings, relating to the causation of the psychological ailment for which Dr Elias claimed compensation. In the Secretary’s submission, Dr Elias’ financial records can reasonably be expected to contain evidence of his expenditure on alcohol, which goes to live questions about Dr Elias’ abuse of alcohol and the role excessive alcohol consumption may have played in causing the psychological ailment under claim.
The Secretary contends there is a reasonable basis for concluding Dr Elias engaged in alcohol abuse before the date of the injury for which he claimed compensation. In the Secretary’s submission, Dr Elias, by his own account, was consuming alcohol to excess and this is confirmed by his treating doctors, including Dr Shafi (a general practitioner) and Dr Thompson (a gastroenterologist), and his treating psychologist, Ms Karen Ely. The Secretary asserts Dr Elias’ general practitioner stated Dr Elias suffered from Alcohol Abuse Disorder and the documents sought would illuminate, by inference at least, any history or pattern of alcohol consumption by Dr Elias. That being so, the Tribunal should reject Dr Elias’ objections and accept the application for a direction is well-made.
The Secretary argues Dr Elias failed to disclose excessive alcohol consumption to Comcare and his employer, and to some of his treating doctors, and this failure raises issues of credit, as well as exclusionary elements of s 7(7) of the SRC Act. The Secretary asserts the documents sought would be relevant to and capable of providing a legitimate basis for cross-examination of Dr Elias on these issues. As the documents are not manifestly irrelevant or incapable of touching matters of credit, relying on what Hunter J said in Brand v Digi-Tech (Australia) Pty Ltd (Brand)[5], and drawing support in principle from Comcare v Maganga (Maganga)[6] and King v Australian Pharmaceutical Industries Ltd (King)[7], the Secretary contends the application should be accepted and the requested direction made. Furthermore, relying on Maganga, the Secretary argues, should the Tribunal refuse to make the direction sought, this would amount to failure by the Tribunal to allow access to records for the purposes of cross-examination on relevant matters. A failure of that kind, so the argument goes, would amount to an impermissible denial of procedural fairness. The Secretary asserted the Tribunal made an order of a similar kind in White v Australian Capital Territory (White)[8] and the financial records produced were found to be relevant to issues of causation and credit in that case[9].
[5] [2001] NSWSC 425 at [36].
[6] [2008] FCA 285.
[7] [2011] FCA 95.
[8] [2022] AATA 199.
[9] Ibid, at [102]-[103] and [109].
The Secretary requires the documents sought in order to brief an independent medical expert as to causation in this matter. The Secretary argues it is important for such an expert to be briefed with Dr Elias’ full medical history in respect of alcohol consumption in order to determine the correct diagnosis of the ailment for which Dr Elias claimed compensation, as well as the extent of any contribution by his employment by the Department. In the Secretary’s submission, Dr Elias’ extensive period of excessive drinking has been concealed from his employer and some medical practitioners.[10]
[10] Applicant’s written submissions, 9 November 2022 at [34].
With regard to Dr Elias’ objection on privacy grounds, the Secretary asserts privacy is not a reason in law to refuse the application for a direction. The Secretary noted should Dr Elias produce his financial records, under the implied undertaking,[11] they could only be used for the purposes of these proceedings. The Secretary submitted provision is made under s 35 of the AAT Act for privacy considerations to be addressed should any arise and, additionally, it would be open for Dr Elias to object to tender of his financial records in evidence at a hearing.
[11] See Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10 per Brennan J at [36].
Power to direct
The Tribunal’s statutory power to issue directions is one element of the discretionary power conferred upon it by s 33(1) of the AAT Act to determine and control procedure. The section is in the following terms:
(1) In a proceeding before the Tribunal:
(a) the procedure of the Tribunal is, subject to this Act and the regulations and to any other enactment, within the discretion of the Tribunal;
(b) the proceeding shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit; and
(c) the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.
Decision‑maker must assist Tribunal
(1AA) In a proceeding before the Tribunal for a review of a decision, the person who made the decision must use his or her best endeavours to assist the Tribunal to make its decision in relation to the proceeding.
Parties etc. must assist Tribunal
(1AB) A party to a proceeding before the Tribunal, and any person representing such a party, must use his or her best endeavours to assist the Tribunal to fulfil the objective in section 2A.
Directions hearing
(1A) The President or an authorised member may hold a directions hearing in relation to a proceeding.
Who may give directions
(2) For the purposes of subsection (1), directions as to the procedure to be followed at or in connection with the hearing of a proceeding before the Tribunal may be given:
(a) where the hearing of the proceeding has not commenced—by a person holding a directions hearing in relation to the proceeding, by the President, by an authorised member or by an authorised officer; and
(b) where the hearing of the proceeding has commenced—by the member presiding at the hearing or by any other member authorized by the member presiding to give such directions.
Types of directions
(2A) Without limiting the operation of this section, a direction as to the procedure to be followed at or in connection with the hearing of a proceeding before the Tribunal may:
(a) require any person who is a party to the proceeding to provide
further information in relation to the proceeding; or
(b) require the person who made the decision to provide a statement
of the grounds on which the application will be resisted at the
hearing; or
(c) require any person who is a party to the proceeding to provide a
statement of matters or contentions upon which reliance is intended
to be placed at the hearing; or
(d) limit the number of witnesses who may be called to give evidence
(either generally or on a specified matter); or
(e) require witnesses to give evidence at the same time; or
(f) limit the time for giving evidence or making oral submissions; or
(g) limit the length of written submissions.

As can be seen, albeit broadly expressed (the Tribunal is not bound by the rules of evidence for example), the Tribunal’s discretion to determine procedure is not at large: under s 33(1)(a), it is subject to other provisions of the AAT Act and any other applicable enactment. In this case, Dr Elias’ compensation claim is to be determined under applicable provisions of the SRC Act, including provisions relating to the existence of an injury for which Comcare is liable: s 5A, s 5B, s 7 and s 14.
The power to determine procedure conferred by s 33(1) of the AAT Act must be construed according to the text, context and purposes of the legislation. It applies to a proceeding.
The word “proceeding” is given meaning in s 3(1):
proceeding, in relation to the Tribunal, includes:
(a) an application to the Tribunal for review of a decision; and
(b) an application to the Tribunal under subsection 28(1AC); and
(c) an application to the Tribunal for review of a taxing of costs; and
(d) an application to the Tribunal for a costs certificate under
section 10A of the Federal Proceedings (Costs) Act 1981; and
(e) an application to the Tribunal under subsection 62(2) of
the Freedom of Information Act 1982; and
(f) any other application to the Tribunal under this Act or any other
Act; and
(g) any matter referred to the Tribunal for inquiry and/or review under
this Act or any other Act; and
(h) an incidental application to the Tribunal made in the course of, or
in connection with, an application or proposed application, or a
matter, referred to in a preceding paragraph.
The Secretary’s application for the making of a direction is within the meaning of proceeding.
Within the broad discretion to determine procedure, the Tribunal has a further discretion under s 33(2A)(a): the Tribunal may require a person who is a party to the proceeding to provide further information in relation to the proceeding.
There are several things to say about this discretionary power.
Firstly, while the operation of s 33(2A) is not limited in terms, the discretionary power applies to the procedure to be followed at or in connection with the hearing of a proceeding. Clearly enough, when read in the context of s 33, the provision has a procedural character.[12] It is for the purposes of determining the procedure to be followed in the particular circumstances, having regard to the obligations of the decision-maker and the parties in respect of the objectives set out in s 2A, namely:
In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that:
(a) is accessible; and
(b) is fair, just, economical, informal and quick; and
(c) is proportionate to the importance and complexity of the matter;
and
(d) promotes public trust and confidence in the decision‑making of the
Tribunal.
[12] LPSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1563 at [21].
Secondly, under s 33(1), generally, s 33(2A) should not be construed so broadly or in a manner that is inconsistent with, or which might serve to circumvent, any rights, obligations, thresholds or considerations in any other relevant provision within the AAT Act or any other applicable enactment which expressly provides for the obtaining of information that may be relevant to contested issues in a proceeding.
Comcare has extensive powers to obtain relevant information when assessing a claim, including under s 58 and s 71 of the SRC Act. I note in passing, under the terms of s 43(1) of the AAT Act, for the purposes of reviewing a decision, the Tribunal may exercise all of the powers and discretions conferred upon the person who made the decision under review. It is at least arguable this incudes Comcare’s power under s 57(1) of the SRC Act to request further relevant information from a claimant. Under s 57(3) failure to comply with such a request, without a reasonable excuse, may result in the claim being suspended from further consideration until the claimant complies. This consideration was not raised by the parties, however, and I will not consider it further.
Under s 40A(1)(b) of the AAT Act, the Tribunal has power to compel production of documents for the purposes of a proceeding. This section provides specific statutory authority for the obtaining of documents under compulsion which may interfere with the liberty and privacy of a person, including a person who is a party to proceedings before the Tribunal. The summons powers provide a mechanism for discovery in respect of documents which have apparent relevance to issues in a proceeding. In the present circumstances, for reasons which have not been explained, the Secretary has not made a request for the Tribunal to issue summons for production of Dr Elias’ financial records. While there may be a question whether it is appropriate to use the summons power in such circumstances, the matter was not raised for consideration. That being so, I will go no further on the point than to observe, commonly, in the overwhelming majority of cases in the Tribunal’s compensation jurisdiction, requests are made and summons are issued for the production of records relating to a claimant who is a party in proceedings before the Tribunal.
The power to make procedural directions under s 33(2A) should not be construed in a manner which circumvents the statutory procedures, and the legal thresholds and rights, which apply to the Tribunal’s summons powers. That said, the Tribunal’s discretionary powers to determine procedure under s 33 serve the purposes of reasonable flexibility in responding to the particular circumstances in any case and the objectives set out in s 2A.
Thirdly, there is a question whether the power to make a procedural direction under s 33(2A)(a) of the AAT Act is sufficient to authorise a direction requiring interference with the liberty or privacy of an individual who is a party to a proceeding. The section expressly authorises the Tribunal to direct a party to provide further information in relation to the proceeding. In LPSP v Minister forImmigration, Citizenship, Migrant Services and Multicultural Affairs (LPSP),[13] Bromberg J observed a direction that compels interference with the liberty of a party to the proceeding is not readily characterised as a procedural direction.[14] Her Honour concluded the power in s 33(2A) was not sufficient to authorise a direction compelling LPSP to undergo a medical examination. It has been accepted, generally, a direction of that kind requires specific statutory authority.[15] While the power conferred by s 33(2A) has been construed as sufficient to require a person who is a party to answer questions in cross-examination,[16] it is expressed at a high level of generality[17] and there is a question whether it is sufficiently specific to confer power to compel a person to produce records of the kind the Secretary seeks. As the parties were not heard of this point, I will go no further with it than to observe, for reasons that will appear, it is not presently necessary for me to decide this question.
[13] [2021] FCA 1563.
[14] Ibid at [22], citing Nursing and Midwifery Board of Australia v HSK [2019] QCA 144 (HSK) at [32].
[15] Hastwell v Kott Gunning (No 5) [2020] FCA 621 (Hastwell) at [32], (affirmed on appeal in Hastwell v Kott Gunning [2021] FCAFC 70).
[16] Charara v Commissioner of Taxation [2016] FCA 451 at [77].
[17] LPSP at [23].
The Secretary drew notice to the issuing of a similarly worded direction in White’s case. About this there are two things to say. Firstly, while some parallels may be relevantly drawn, White’s case turned on issues relating to the continuation of compensation entitlements as result of an accepted injury, particularly in respect of any continuing entitlement to compensation for incapacity for work and Mr White’s ability to earn in employment. Secondly, the available materials do not establish whether the Tribunal’s direction was made over objection by Mr White, or if he voluntarily submitted to its terms.
Fourthly, the term further information is conditioned by the words in relation to the proceeding. The phrase in relation to the proceeding has been construed as sufficiently broad to encompass information that is of adjectival or apparent relevance to the proceeding.[18] Construing s 33(2A) in that way is not inconsistent with the power vested in Comcare under s 71 of the SRC Act to obtain information that is ‘relevant’ to a claim, or to the power in s 58, under which a relevant authority has power to request ‘relevant’ information from a claimant. It aligns with the threshold of relevance that is applicable in respect of the Tribunal’s summons powers. Nevertheless, a direction under s 33(2A)(a) cannot step outside the procedural character of the power conferred for the purposes of s 33(1).
[18] O’Sullivan and P & O Maritime Services Pty Ltd [2019] AATA 4759 at [80].
Fifthly, the discretionary power conferred by s 33(2A) is in respect of a person who is a party to the proceeding. Consequently, the power must be construed in accordance with other provisions of the AAT Act and (in this case) the SRC Act which bear upon the rights and obligations of a person who is a party to the proceeding. In this case, even though Dr Elias is the claimant under the SRC Act, he is a party to this proceeding by operation of s 30(1A) of the AAT Act – he is a person whose interests are affected by the decision under review.
Just as the Secretary and Comcare must use their best endeavours to assist the Tribunal to fulfil the objective set out in s 2A of the AAT Act, so too must Dr Elias and his legal representatives. Under s 39(1), the Tribunal must ensure Dr Elias, the Secretary and Comcare are each given a reasonable opportunity to present their case and to inspect and make submissions about any documents the Tribunal proposes to have regard to when reaching its decision. As with the Secretary and Comcare, Dr Elias may request the Tribunal to issue a summons for the purposes of discovery in the proceedings and, subject to objection, be granted access to documents produced under compulsion thereby.
The Tribunal is required to afford procedural fairness to each party in proceedings before it.
Sixthly, even though a direction under s 33(2A) does not have the force of a summons under s 40A(1)(b), it has compulsive force. While failure to comply with a summons under s 40A(1)(b) is an offence under s 61 of the AAT Act and the Tribunal does not have express power to enforce compliance with a direction made under s 33(2A), a party subject to such a direction is nonetheless required to comply.
Subject to an order under s 35 of the AAT Act, any document produced to the Tribunal by a party in compliance with a direction under s 33(2A) will be disclosed to other parties to the proceedings. Such material may be used for the purposes of the proceedings, in the preparation of a party’s case or for the purposes of briefing an expert witness for example.
Nevertheless, unless a document produced to the Tribunal under s 33(2A) for the purposes of the particular proceedings is taken into evidence, a party cannot use the document for any other purpose without prior leave of the Tribunal.[19] In Deputy Commissioner of Taxation v Shi[20], the plurality described the underlying principle in the following way:
The underlying principle is that a party who obtains the disclosure of information for a particular purpose cannot use the information for a "purpose different from that which was the only reason why, under a procedure designed to achieve justice in civil actions, [the solicitor or party] was accorded the advantage, which [they] would not otherwise have had, of having in [their] possession [that information]".
[19] Hearne v Street [2008] HCA 36, per Hayne, Heydon and Crennan JJ at [96] and [105]-[109].
[20] [2021] HCA 22 at [45].
Legitimate forensic purpose and adjectival relevance
For the Secretary’s application to be accepted a legitimate forensic purpose must be properly made out. At a minimum, the material sought must have apparent or adjectival relevance to the issues for determination in the proceedings.[21] The issues the Secretary presses in these proceedings and the contents of the compensation claim Dr Elias made will require findings to be made under s 5A, s 5B and s 14 of the SRC Act in respect of the ailment for which Dr Elias claimed compensation, including whether the ailment amounts to a disease to which his employment contributed to a significant degree and, if so, whether the disease amounts to an injury. Furthermore, the Secretary raises issues under s 7(7) of the SRC Act in respect of the truthfulness or accuracy of disclosures Dr Elias made to his employer and to Comcare which, if established, may exclude his claim. It is for the Secretary to establish reasonable grounds for believing the documents sought will assist in proof or presentation of such matters in this case.
[21] Jack Brabham Engines Pty Ltd v Beare [2010] FCA 35 at [7]-[9].
It is on this point the Secretary’s application fails. The principles discussed in the authorities to which the parties referred, including Apotex, Brand, Maganga and King, do not compel any different conclusion. White’s case in the Tribunal is not binding and is readily distinguished.
There are two key considerations:
(a)whether the documents sought could reasonably be expected to throw light on some of the issues in the principal proceedings[22] and there is a real possibility that they may assist in the resolution of the issues in the proceedings;[23] and
(b)whether there is some reason to suppose that the documents sought will be capable of being used as evidence or for a legitimate forensic purpose in cross-examination,[24] and, when viewed realistically, the documents sought have a bearing on an issue which is not unreal, fanciful or speculative, or that the material sought is reasonably likely to add in some way to the relevant evidence in the case, or that it be “on the cards” that the documents sought will materially assist the party at whose request the subpoena has been issued.[25]
[22] Trade Practices Commission v Arnotts Pty Ltd & Ors [1989] FCA 248 at [41].
[23] Comcare v Maganga [2008] FCA 285 at [37].
[24] Hunt v Wark (1985) 40 SASR 489 per King CJ at [493].
[25] Wong v Sklavos [2014] FCAFC 120 at [12].
In his compensation claim,[26] Dr Elias alleges in April 2020 he first noticed symptoms of the ailment subsequently diagnosed as an Adjustment Disorder. This is supported by evidence of Dr Siota, a consultant psychiatrist who produced a medico-legal report for Comcare.[27] In Ms Wright’s submission for the Secretary, weight should be given to Comcare’s finding in respect of the date of the injury and evidence of Dr Elias’ alcohol consumption before that date may have material and diagnostic relevance. This submission cannot be accepted.
[26] T6.
[27] T16, folio 121 refers.
The Secretary has applied for review of Comcare’s decision to accept liability for the injury Dr Elias claimed. The Secretary asserts there was no injury for the purposes of s 5A, s 5B and s 14 of the SRC Act. In those circumstances, applying the relevant principle discussed in Smith v Comcare,[28] there may be live questions about the date of injury determined under s 7(4) of the SRC Act. The important consideration in a review of this kind is whether the content of the claim made by Dr Elias is made out by evidence capable of establishing liability for an injury against Comcare. Dr Elias’ claim must be construed in its terms, albeit with some latitude perhaps. The claim made for an injury in April 2020 cannot be reconstrued as a claim for an injury many months later. [29]
[28] [2013] FCAFC 65, per Buchanan J (with whom Greenwood J agreed) at [34].
[29] Comcare v Muir [2016] FCA 346 at [37].
While there are references in the clinical notes, medical certificates and reports of Dr Elias’ treating doctors and Ms Ely to him engaging in excessive alcohol consumption, these all relate to periods well after April 2020. In the documents I have examined there are 3 references to Dr Elias drinking alcohol prior to April 2020. The first is information he provided to his employer in respect of him drinking alcohol in an unlicensed area more than 30 years ago.[30] The second appears in a report by Dr Thompson to Dr Joseph on 12 November 2018. The doctor reported Dr Elias “is a non-smoker and drinks alcohol occasionally”.[31] The third is an oblique reference to “fCREASED ALCOHOL” in a clinical note of Dr Joseph, a general practitioner, on 5 March 2018.[32] Mr Berger’s submission that the records provided by the Secretary are incomplete is correct. On 19 March 2020 Dr Shafi noted Dr Elias “has been pretty well off alcohol, feels v tired”. Thereafter, there is no reference in the clinical notes to Dr Elias engaging in alcohol consumption until 28 July 2021, at which point Dr Shafi noted “Anxiety and depression for past few months. Does a very stressful job. Drinks heavily and also to help with sleep”.
[30]Applicant’s Documents – Interlocutory Dispute, page 11.
[31] Ibid at page 84.
[32] Ibid at page 40.
The proposition Dr Elias was found by his treating doctors to be suffering from Alcohol Abuse Disorder prior to the date of the injury for which he claimed compensation is not made out. I note there is a reference to “Alcohol abuse” in a GP Management Plan,[33] but the Plan is dated 22 March 2022. Dr Elias was first referred to Ms Ely for treatment on 20 August 2021,[34] more than 16 months after the alleged onset of symptoms of the ailment for which Dr Elias claimed compensation.
[33] Applicant’s Documents – Interlocutory Dispute, page 62.
[34] Ibid, page 67.
These records convey information provided by Dr Elias in respect of alcohol consumption. The Secretary questions the reliability of this information. There are two things to say about this. Firstly, the accuracy of the information Dr Elias provided to his treating doctors and Ms Ely may be tested in cross-examination. Questions about the reliability of his self-reports are not sufficient reason to require production of Dr Elias’ bank records. Secondly, objectively assessed, the records are not sufficient to raise a reasonable basis on which to believe Dr Elias abused alcohol or suffered from Alcohol Abuse Disorder prior to the onset of the injury under claim. I am not persuaded the present materials are sufficient to raise any real possibility, beyond speculation, Dr Elias consumed excessive amounts of alcohol or that he suffered from an Alcohol Abuse Disorder prior to April 2020, or that alcohol consumption might have been a contributory cause of the ailment for which he claimed compensation.
Furthermore, even if I reached a different conclusion of this point, I am not persuaded compelling production of Dr Elias’ credit card and bank records would serve a legitimate forensic purpose in respect of any history or patterns of alcohol consumption sufficient to outweigh privacy considerations. While Dr Elias’ bank or credit card records may evidence expenditure in particular transactions on specific dates, there is a substantial evidentiary gap between any such expenditure and any history or pattern of alcohol consumption by Dr Elias. While it may be accepted financial records of these kinds might have some forensic value in establishing patterns of expenditure and may provide some basis for related questions that might be put to Dr Elias in cross-examination, the legitimacy of the forensic purpose is grounded on a reasonable likelihood the documents sought will add in some way to the relevant evidence in the case. On the present materials, I am not persuaded there is a real possibility, above speculation or conjecture, Dr Elias’ financial records will add to the relevant materials or assist in determination of the issues to be decided.
There is a significant distance between largely unsupported conjecture about Dr Elias’ excessive consumption of alcohol, or the existence of Alcohol Abuse Disorder, prior to the injury he claimed and the existence of a legitimate forensic purpose in establishing any related expenditure. Speculation about excessive alcohol consumption prior to the claimed injury is not a sufficient or reasonable basis on which to obtain Dr Elias’ private financial records to trawl for related expenditure. More is required. Furthermore, the bare assertion Dr Elias was less than frank in disclosures he made to his employer and Comcare about alcohol consumption is highly speculative. There is no reasonable basis on which to conclude Dr Elias failed to disclose alcohol consumption to health professionals he consulted. On the present materials, it is not a reasonable basis to press for access to his financial records in the hope of finding relevant records. This is especially so when the probative value of any such records, should they be found to exist, would in all likelihood be confined to the drawing of indirect inferences.

While proof of expenditure in particular circumstances might establish a purchase being made on a particular date, related relevant facts would remain unproved, including details of the items purchased, who made the purchase, the purpose of the purchase, when the purchased items were consumed and by whom. The alleged forensic purpose is in respect of questions that may be put to Dr Elias about factual matters relating to alcohol consumption and disclosure. More is required to establish a legitimate basis for compelling production of Dr Elias’ private financial records for this purpose.
Privacy
I do not accept the Secretary’s submission that privacy considerations are not relevant when deciding an application for a direction under s 33(2A) of the AAT Act.
The fundamental common law right not to disclose personal private information is an important consideration in the exercise of compulsive power to require such disclosure. There is a balancing exercise in which it is necessary to weigh competing interests:
“... 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.”[35]
[35] CoscoHoldings Pty Ltd v Federal Commissioner of Taxation [1997] FCA 1504, Spender J quoting with approval what Clarke J said in South Pacific Hotel Services Inc v Southern Pacific Hotel Corporation Ltd[1984] 1 NSWLR 710 at 719.
It is for this reason, as has been noted in previous cases, by making a compensation claim an employee should expect a thorough investigation of relevant matters, in respect of which some elements of the claimant’s privacy rights may be foregone.[36] It does not follow, however, that the person’s privacy rights are removed or the person’s right to privacy should not be considered when exercising the discretion conferred by s 33(2A) of the AAT Act.
[36] ZFCC and Comcare (Compensation) [2018] AATA 1358 at [10].
Questions of reasonableness and appropriateness arise in the context of this discretion. Reasonableness requires a just cause, beyond mere speculation or conjecture, to intrude upon the private rights of the person who is a party to the proceedings. While the intrusion must be authorised on a reasonable basis, for it to be appropriate it must be proportionate to the cause in the particular circumstances of the proceedings.
In this regard, the discretion to make procedural directions under s 33(2A) is not analogous to the summons power in s 40A(1). The s 33(2A) discretion requires all relevant considerations, including privacy considerations, to be taken into account when making a positive decision in respect of appropriate procedure in the particular circumstances. It is directed to a party to the proceedings, where failure to comply may be addressed by further procedural direction, such as a stay of the proceedings or a non-compliance hearing for example, but the failure is not an express offence. The power under s 40A(1) to summons a person to appear or to produce a document for the purposes of proceedings in the Tribunal has a different legal character. It is not directed to Tribunal procedure in the particular circumstances. The compulsive power carries the force of law such that, under s 61 of the AAT Act, failure to comply with a Tribunal summons is an offence. Exercise of the power is subject to thresholds of apparent relevance and legitimate objection. While privacy might be a relevant consideration when determining a request for a summons or an objection to compliance or the grant of access to documents produced, it is not the predominant consideration.
While the Secretary’s submissions in respect of the relevance of privacy considerations might be accepted in respect of objection to a summons, different thresholds apply to the discretion conferred by s 33(2A) of the AAT Act.
In this case, the balance weighs against exercise of the discretion.
On the one hand, the intrusion upon the privacy rights of Dr Elias and his family which would result should the direction the Secretary seeks be made is significant. If the direction application is accepted, Dr Elias’ financial records, without abridgement or alteration, detailing income and expense transactions over a 4-year period would be required to be produced to the Tribunal and, thus, to the other parties: the Secretary (his employer) and Comcare. The justification pressed for this intrusion is there is a reasonable basis to conclude the records may serve a forensic purpose in establishing a history and a pattern of alcohol abuse prior to the injury for which Dr Elias claimed compensation which would be relevant to determination of his claim by the Tribunal on review.
On the other hand, while the Tribunal is not a court administering justice, the Tribunal must afford each party procedural fairness and a reasonable opportunity to present their case, including obtaining documents of apparent relevance which serve a legitimate forensic purpose. Intruding upon the privacy rights of a person who is a party by compelling production of financial records at the request of another party does not serve the interests of fairness if it is done without a reasonable basis.
I am not persuaded there is a reasonable basis for the direction the Secretary has requested which justify the intrusion upon Dr Elias’ right to privacy.
Fairness
To the extent the Secretary asserts denial of an opportunity to examine Dr Elias’ financial records might amount to a denial of procedural fairness or a failure by the Tribunal under s 39(1) to ensure that each party has a reasonable opportunity to present their case, I disagree.
It would be a denial of procedural fairness to make a direction compelling production of private records without just cause. While each party is entitled to prepare their case on the basis of an evidentiary mosaic constructed from materials of relevance, it does not follow a party seeking production of records without a reasonable basis is denied procedural fairness when the request for production is refused.
The decision to refuse the Secretary’s application for a direction under s 33(2A) of the AAT Act does not prevent the Secretary from prosecuting issues of credit and causation relating to alcohol consumption should it be relevant and should there be a reasonable basis on which to do so. As I have noted, Dr Elias withdrew his objections to the issuing of the contested summons and those matters were not contested in this interlocutory hearing.
In order to determine the substantive issues in the proceedings which are contended for by the Secretary, in respect of the causation of the ailment for which Dr Elias has claimed compensation and whether his employment contributed to a significant degree, being a degree that is substantially more than material, the matters set out in s 5B(2) must be taken into account:
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
It is in this regard the Secretary asserts any alcohol abuse prior to the date of alleged injury is a relevant consideration which must be taken into account.
I am satisfied, on the present materials, the proposition Dr Elias abused alcohol or that he was diagnosed with Alcohol Abuse Disorder prior to the alleged onset of symptoms of the ailment for which he claimed compensation is not raised on a reasonable basis. Even though exercise of the discretion to direct Dr Elias to produce financial records under s 33(2A) of the AAT Act is not presently justified for this reason, it does not follow the Secretary cannot proceed to seek and adduce further relevant materials in the proceedings, or that related questions cannot be put to Dr Elias in cross-examination.
In consideration of the procedural nature of the discretion under s 33(2A), should the Secretary obtain further and better information in support of the proposition Dr Elias abused alcohol prior to April 2020, and there is then a reasonable basis on which to compel production of Dr Elias’ financial records, any further procedural application under s 33(2A) will be considered on its merits.
As I have said, the Tribunal must ensure that each party is given a reasonable opportunity to present their case. Necessarily, in a case of this kind, this means using the Tribunal’s powers appropriately and enabling the parties to build the mosaic of evidence on which the particular issues in the proceedings are to be assessed and determined. This obligation, and the right of each party to thoroughly prepare their case, reflects a powerful public interest in the fair and just review of administrative decisions in accordance with the objectives expressed in s 2A of the AAT Act.
Considering all these matters and giving them due weight, the Secretary’s application is not presently made out and must be refused.
Decision
Application for direction refused.
I certify that the preceding 79 (seventy nine) paragraphs are a true copy of the reasons for the decision herein of Member Simon Webb.
………………………[sgd]……………………….
Associate
Dated:            22 November 2022
Date of Hearing:        18 November 2022
Applicant:                   Sarah Wright & Jenny Davenport, Australian Government Solicitor
Respondent:               Abe Ghaleb, McInnes Wilson Lawyers
Other Party:               Andrew Berger KC & Richard Faulks, Snedden Hall and Gallop