Sitki and Comcare (Compensation)

Case [2022] AATA 4435

Sitki and Comcare (Compensation) [2022] AATA 4435 (22 December 2022)

Division:GENERAL DIVISION

File Number(s):     2022/4528

Re:Hatice Sitki  

APPLICANT

ComcareAnd  

RESPONDENT

Decision

Tribunal:Mr S. Webb, Member

Date:22 December 2022

Place:Canberra

1.Objections to the summons issued by the Tribunal on 23 September 2022 in respect of Jacqueline Gibb, Canberra Mobile Counselling, are refused.

2.Objections to the summons issued by the Tribunal on 23 September 2022 in respect of Dr Huzan Daver, Converge International, are refused.

3.As the date for production under each summons is now past, the date for production under each summons is extended to 16 January 2023.

................[SGD].............................
Mr S. Webb, Member

Catchwords

PRACTICE AND PROCEDURE – psychological injury compensation claim – summons –treatment records – objection to summons – relevant principles – professional confidential relationship privilege – risk of harm – therapeutic relationship – legitimate forensic purpose – apparent relevance - obligation to ensure each party is given a reasonable opportunity to present their case – summons not oppressive or speculative - obligation to comply – objections refused


Legislation

Administrative Appeals Tribunal Act 1975 ss 2A, 33, 35, 39, 40A, 40B

Evidence Act 1995 (Cth) ss 126K

Evidence Amendment (Journalists’ Privilege) Act 2007 (Cth)

Evidence Act 2011 (ACT) ss 126B

Health Records Act (Privacy and Access) 1997 (ACT) ss 6

Privacy Act 1988 (Cth) ss 6, 9, 10

Safety, Rehabilitation and Compensation Act 1988 ss 2A, 4, 5A, 5B, 14


Cases

Australian Broadcasting Corporation v Kane (No. 2) [2020] FCA 133

BrisConnections Finance Pty Ltd (Receiver and Manager Appointed) v Arup Pty Ltd [2016] FCA 906

Comcare v Maganga [2008] FCA 285

Cosco Holdings Pty Ltd v Federal Commissioner of Taxation [1997] FCA 1504

Harman v Secretary of State for the Home Department [1983] 1 AC 280

Hearne v Street [2008] HCA 36

Hunt v Wark (1985) 40 SASR 489

Lakatoi Universal Pty Limited and Ors v Walker and Ors [1998] NSWSC 470

Panagiotou and TNT Australia Pty Ltd [2011] AATA 565

Trade Practices Commission v Arnotts Pty Ltd & Ors [1989] FCA 248

Wong v Sklavos [2014] FCAFC 120

ZFCC and Comcare (Compensation) [2018] AATA 1358


Secondary Materials

AAT President’s General Practice Direction, 28 February 2019, Part 5

REASONS FOR DECISION

Mr S. Webb, Member

22 December 2022

  1. Hatice Sitki claimed compensation for an alleged injury in her employment by the Department of Defence. Comcare decided to refuse the claim. This decision was affirmed on reconsideration. Dr Sitki applied for review by the Tribunal.

  2. In the course of the resulting proceedings, Comcare requested Ms Jacqueline Gibbs (a counsellor) and Dr Huzan Daver (a psychologist) be summonsed to produce records, including consultation notes, in respect of Dr Sitki.

  3. On 23 September 2022, the Tribunal sealed and issued a summons requiring Ms Gibbs to produce records by 10 October 2022. Also on that day, a summons was sealed and issued requiring Dr Daver to produce records by 10 October 2022.

  4. Subsequently, Ms Gibbs, Dr Daver and Dr Sitki lodged objections to the summons.

Continue reading Sitki and Comcare (Compensation)

Sign in free to access the full text

Details
AGLC
Sitki and Comcare (Compensation) [2022] AATA 4435
Case
[2022] AATA 4435
Decision Date

CaseChat Overview and Summary

In this matter before the Administrative Appeals Tribunal, Dr Sitki objected to a summons issued by the Tribunal requiring the production of documents. The dispute concerned a claim for compensation for psychological injury, and Dr Sitki sought to rely on professional confidential relationship privilege as grounds for refusing to comply with the summons.

The Tribunal was required to determine whether the objection based on professional confidential relationship privilege was valid and whether the summons was oppressive or speculative. The Tribunal considered the provisions of the *Evidence Act 2011* (ACT) concerning professional confidential relationship privilege, noting that it is subject to a court's discretion and requires findings of fact regarding potential harm. The Tribunal also considered its own nature as a merits review body, not bound by the strict rules of evidence under the *Administrative Appeals Tribunal Act 1975* (Cth).

The Tribunal reasoned that Dr Sitki's assertion of privilege lacked sufficient detail. Furthermore, even if the privilege were applicable, the Tribunal would need to weigh various factors, including the probative value and importance of the information, the nature of the proceeding, the availability of other evidence, the likelihood and extent of harm to Dr Sitki, and the Tribunal's ability to limit such harm. The Tribunal found that the objections were not made out and that the summons was not oppressive or speculative, and therefore, the obligation to comply with the summons remained.

Consequently, the Tribunal refused the objections made by Dr Sitki and Dr Daver to the summonses. As the original production dates had passed, the Tribunal extended the date for production of the documents to 16 January 2023.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

In part and without detail, Dr Sitki’s objection is pressed on grounds of Professional Confidential Relationship Privilege.[26] Dr Sitki’s assertion of the privilege lacks detail and, without more, the basis on which it is pressed is not clear. Professional Confidential Relationship Privilege is dealt with under Division 3.10.1A in Part 3.10 of the Evidence Act 2011 (ACT) (ACT Evidence Act). While similar provisions were introduced into the Evidence Act 1995 (Cth) (Commonwealth Evidence Act) by the Evidence Amendment (Journalists’ Privilege) Act 2007 (Journalists’ Privilege Act) the Commonwealth provisions were limited to journalists and (following subsequent amendments) presently appear in s 126K of the Commonwealth Evidence Act. There are a number of things to say about this. [26] Applicant’s written submissions, 9 November 2022. Firstly, under s 126B of the ACT Evidence Act, professional confidential relationship privilege is subject to the discretion of a court in respect of the admission of evidence. The discretion applies except where the court makes a finding that harm might be caused to the protected confider should the evidence be presented, and the harm outweighs the desirability of the evidence being presented. The matters to be taken into account are set out, inclusively, in s 126B(4) of the ACT Evidence Act. Clearly enough, findings about the nature and extent of likely harm are to be made on the basis of evidence, naked assertion or speculation is not sufficient. Secondly, the Tribunal is a Federal merits review body established by the AAT Act. It is not a court. Absent an equivalent provision in the Commonwealth Evidence Act, there is a question whether the privilege under s 126B of the ACT Evidence Act is applicable. Professional confidential relationship privilege is a discretionary rule of evidence[27] created by the ACT Evidence Act and, under s 33(1)(c) of the AAT Act, the Tribunal is not bound by the rules of evidence. [27] Australian Broadcasting Corporation v Kane (No. 2) [2020] FCA 133 at [213]. Thirdly, even if the professional confidential relationship privilege under s 126B of the ACT Evidence Act is applicable in these proceedings, it would be necessary to make relevant findings and to take account of the following matters:(a)the probative value of the protected information in the proceeding;(b)the importance of the protected information in the proceeding; (c)the nature of the subject matter of the proceeding;(d)the availability of any other evidence relating to the matters to which the protected information relates;(e)the likely effect of presenting evidence of the protected information, including the likelihood of harm, and the nature and extent of harm that would be caused to Dr Sitki;(f)the means available to the Tribunal to limit the harm or the extent of the harm that is likely to be caused if evidence of the protected information is disclosed; and(g)whether the harm outweighs the desirability of evidence of the protected information being presented.

Decision

Reasons for decision

For these reasons, the objections made by Dr Daver and Dr Sitki to the 23 September 2022 summons requiring Dr Daver to produce documents within its terms are not made out.Decision Objections to the summons issued by the Tribunal on 23 September 2022 in respect of Jacqueline Gibb, Canberra Mobile Counselling, are refused. Objections to the summons issued by the Tribunal on 23 September 2022 in respect of Dr Huzan Daver, Converge International, are refused. As the date for production under each summons is now past, the date for production under each summons is extended to 16 January 2023.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.