Steele and Comcare (Compensation)
[2018] AATA 481
•14 March 2018
Steele and Comcare (Compensation) [2018] AATA 481 (14 March 2018)
Division:GENERAL DIVISION
File Number: 2017/3286
Re:Scott Steele
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Deputy President S Boyle
Date:14 March 2018
Place:Perth
The Tribunal refuses the Applicant’s requests to issue the summonses to produce documents in the form proposed by the Applicant.
.....[sgd]...................................................................
Deputy President S Boyle
CATCHWORDS
Summonses – circumstances in which the request to issue may be refused – real possibility that it will assist in the resolution of issues in the proceedings – abuse of process – fishing expedition - refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – s 40A – s 61
Safety, Rehabilitation and Compensation Act 1988 (Cth) – s 16 – s 19
CASES
Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons (1952) 72 WN (NSW) 250
Bailey v Beagle Management Pty Ltd [2001] FCA 60; (2001) 105 FCR 136
Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984] 3 NSWLR 98
Carter v Hayes (1994) 61 SASR 451
Comcare v Maganga [2008] FCA 285; (2008) 101 ALD 68
Commonwealth of Australia v Albany Port Authority [2006] WASCA 185
Cosco Holdings Pty Ltd v Commissioner of Taxation & Anor [1997] FCA 1504
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
General Merchandise and Apparel Group P/L and CEO of Customs and Australian Weaving Mills (Party Joined) [2009] AATA 988
Hamilton v Oades [1989] HCA 21; (1989) 85 ALR 1Horne v Locke [1978] 2 NSWLR 88
Hunt v Wark (1985) 40 SASR 489
Mandic v Phillis [2005] FCA 1279; (2005) 225 ALR 760
Maronis Holdings Ltd v Nippon Credit Australia Ltd [2000] NSWSC 138; (2000) 18 ACLC 609
Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 62 ALJR 389; [1988] HCA 32; (1988) 79 ALR 9
Pharm-a-Care Laboratories Pty Ltd v Commonwealth of Australia [2009] FCA 1203
R v Spizzirri [2001] 2 QdR 686
Ran v the Queen (1996) 16 WAR 447
Re Phillips and Inspector-General in Bankruptcy [2011] AATA 25
Re Trade Practices Commission v Kimberley Homes Pty Limited (1989) 217 ALR 110
Ridgeway v R [1995] HCA 66; (1995) 184 CLR 19
Rogers v R (1994) 181 CLR 251
Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corporation Ltd; Kirby v Southern Pacific Hotel Corporation Ltd [1984] 1 NSWLR 710
Trade Practices Commission v Arnotts Limited (No 2) (1989) 21 FCR 306; (1989) 88 ALR 90REASONS FOR DECISION
Deputy President S Boyle
14 March 2018
THE APPLICATION
The Applicant seeks the issue of three summonses to produce documents. The proposed recipients of the summonses are:
(a)the Respondent;
(b)the Australian Taxation Office (ATO); and
(c)MLCOA.
MLCOA is a company providing medical advisory services including arranging for specialist medical practitioners to examine applicants and prepare reports. MLCOA had been involved in arranging a number of the medical examinations of the Applicant by medical specialists and the specialists’ subsequent reports relating to the Applicant’s medical condition which had been relied on by the Respondent in making its decisions on its liability to the Applicant under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act).
The Respondent has objected to the issue of the summonses in the forms proposed by the Applicant.
BACKGROUND
The Applicant was formerly employed by the ATO as principal litigator.
The substantive application in this matter (T2) is for the review of the decision of the Respondent dated 25 May 2017 (T185) which affirmed the decision of the delegate of the Respondent of 3 April 2017 (T161) that the Respondent had no present liability for medical treatment and incapacity payments under the SRC Act.
The Applicant had made a claim under the SRC Act on 19 January 2012 (T5) in respect of an injury claimed to have been suffered at work while working for the ATO on 20 December 2011.
Liability for lumbar strain under s 14 of the SRC Act was accepted by the Respondent on 6 February 2012 (T6). In his Claim for Workers’ Compensation form dated 19 January 2012 (T5) the Applicant described the injury to his back as occurring as follows (T5 at page 45):
Walking to Court [on 20 December 2011] with an over the shoulder carry bag containing one or more arch files, attending Court and walking back from Court. There is no specific incident that I recall but on my return my back was stiff and deteriorated the following day at work.
The decision of 3 April 2017 identified 11 medical reports from which the delegate concluded that as at that date the Respondent had no present liability for medical expenses under s 16 of the SRC Act or incapacity payments under s 19 of the SRC Act. That decision was based on the delegate’s assessment of the medical evidence relevant to the Applicant’s medical condition as at 3 April 2017. The decision extracted what the delegate thought to be the relevant parts of the identified medical reports. The delegate concluded (T161 at page 551) that:
On the balance of probabilities, and having regard to her medical specialty, I must be guided by the opinion of, Dr Bacvic, being that the current medical evidence supports the view that the effects of the compensable condition have now resolved, and the symptoms you experience now are due to age-related degeneration, and that the evidence suggests this degenerative condition is not related to your employment with the Australian Taxation Office, and in particular the incident on 24 December 2011.
The Tribunal assumes that the reference to “the incident on 24 December 2011” is meant to be a reference to 20 December 2011.
The issue for determination by the Tribunal in the substantive application is whether, standing in the shoes of the decision maker, the decision of 25 May 2017 to affirm the decision of 3 April 2017 was the correct or preferable decision. That will be determined by the review of all of the relevant medical evidence and other evidence relating to the Applicant’s physical state as at 3 April 2017, and in particular whether he was at that time suffering a compensable injury for the purposes of sections 16 and 19 of the SRC Act.
THE DOCUMENTS SOUGHT IN THE PROPOSED SUMMONSES
It is in that light that the scope of the summonses for the production of documents must be considered. (Note that the Tribunal has changed references in the summonses to the names of some of the individuals named in the proposed summons in order to protect their privacy.) The summonses that the Applicant requests the Tribunal to issue are in the following terms:
(a)Summons to Respondent (request dated 10 November 2017)
Copies of the following documents.
1.All documents including phone records and notes (whether hand written or otherwise) evidencing how [X] became aware of the existence of Dr Durda (Georgia) Bacvic (‘Dr Bacvic’) and why he considered Dr Bacvic was the appropriate person to engage before making the Determination made by him in this matter dated 3 April 2017 (‘the Determination’).
2.All documents including drafts, examples and precedents considered by [X] in any way to assist in him in the [sic] drafting the letter sent to Dr Bacvic (Letter of Engagement’)[sic] which requested Dr Bacvic to create her report dated 25 October 2016 (‘Bacvic Report’).
3.Identification of every document attached to the Letter of Engagement.
4.A copy of the Letter of Engagement excluding the attachments.
5.All documents including precedents, drafts and amendments created by or used by [X] with respect to preparing and writing the Determination.
6.All legal authorities and other legal references with respect to the interpretation and application of the Safety, Rehabilitation and Compensation Act 1988 (‘the Act’) which [X] considered and/or relied upon when making the Determination and how he accessed those documents and any notes he made with respect to considering those documents for the purpose of preparing the Determination.
7.Documents evidencing what training [X] has undertaken whether provided by Comcare or otherwise, which enables him to consider the most current law with respect to the application of and including the most recent authorities on the interpretation of the Act when making determinations in his role with Comcare including with respect to the making of the Determination.
8.All notes, whether handwritten or otherwise taken by [X] whilst he was present at the “case review” (‘CR’) identified in the IMAS Service notes system which took place on 17 February 2017 attended by “TL,[sic] “IMA” and “CM” (‘CR Attendees’).
9.All documents created which allowed the CR Attendees to be aware that the CR was to take place and where and when it was to take place.
10.A document or documents identifying who TM and IMA are that attended the CR and all documents evidencing what training TM and IMA have undertaken whether provided by Comcare or otherwise, which enabled them to consider the most current law with respect to the interpretation and application of the Act to apply including the most recent authorities on which they relied upon to allow [Y] to make the statement:
“We agreed to change acceptance to an aggravation.”
11.All documents which show what [X] understood agreeing changing “acceptance to aggravation” meant and what impact that had with respect to the interpretation and application of the Act including the most recent and relevant authorities and [X] identification of those authorities for the making of the Determination and in particular, what ability [X] had to disagree to statement [sic] made at the CR by [Y] that:
“We agreed to change acceptance to an aggravation.”
12.All documents that [X] considered and created including precedent examples from other cases, drafts and instructions or recommendations or assistance from any person or persons to draft the questions in the Engagement Letter as referred to in the Bacvic Report.
13.All documents which showed how [X] researched and interpreted Dr Bacvic’s reference to “Degenerative Disc Disease” on page 9 of the Bacvic Report and what enquiries [X] made to determine what Dr Bacvic was referring to when she said on page 9 of the Bacvic Report that “Objective medical investigation showed progression of disease” including what objective medical investigation she was referring to and which disease that information showed progression of.
14.All documents created by the “CAT team review” as referred in the CR.
15.All documents relied on by [X] to state in the Determination on page 2 that: “As is standard claims management process, on 17 October 2016 you were assessed by Dr Bacvic at Comcare’s request” and what [X] meant by “standard claims management” [sic]
16.Identification by [X] of what he considered Dr Bacvic meant in in [sic] the Bacvic Report on pages 9-10 where she said that:
Mr Eagleton’s accepted condition/pain in the lower back was surgically treated 3 July 2015 thus effect of treatment has now ceased [sic]
17.Identification of the Team Leader (‘Team Leader’) who signed by initialling the document titled Decision/Determination Quality Assurance Form dated 23 November 2016 (‘QLTY Form’) with respect to claim number 1151497/1 with the CM name of [X].
18.All documents [X] presented to the Team Leader to obtain the Team Leader’s initial on the QLTY Form.
19.All notes made by [X] on telephone conversation that he had with anyone with respect to Mr Steele’s case.
Comcare getting tough on claims – the weight of the expert witness reports
20.On June 17 2015, Noel Towell reported in the Canberra Times that a Comcare spokesman said inter alia that:
21.[sic]
22.I therefore ask for copies of all docuements [sic]
23.Copies of all contractual agreements between MLCOA and Comcare relevant to the engagement of anyone seen by the Applicant where MLCOA were also engaged through the use of their premises.
…
(Original Emphasis)
(b)Summons to ATO (amended request dated 2 February 2018)
1.All documents including any deleted electronic documents that [Z] (and any of his predecessors who were previously handling Douglas Eagleton’s (as he was then known and who is now named Scott Steele (‘Mr Steele’) injury claim case) have received, read, sent, prepared and/or considered in respect to Scott Steele’s injury claim case at the Australian Taxation Office (‘ATO’) with respect to his workplace injury of 20 December 2011 from 20 December 2011 to 1 March 2012 and since 1 July 2014.
The documents referred to in item 1 above must specifically include but not be limited to all documents which show what steps the ATO made to have Mr Steele reallocated to another position including but not limited to, around the time when Mr Steele offered to go down up to 2 APS Levels to facilitate that reallocation.
2.All documents including deleted and electronic documents that [A], [B], [C], [D], [E] and/or [F] of the ATO have received and/or created and/or sent and/or prepared and/or considered in respect to Mr Steele’s cases being taken from him in or around early 2016.
Those documents referred to in item 2 above must specifically include but not be limited to all documents which show what allegations were made against Mr Steele (as he is now known) and what steps were taken to verify those allegations prior to and leading up to his cases being suddenly removed from him.
3.All documents including any deleted electronic documents that [A], [B], [D], [E] and/or [F] (‘Relevant Staff’) of the ATO have received and/or created and/or sent and/or prepared and/or considered with respect to:
a.Mr Steele’s injury of 20 December 2011; and/or
b.Mr Steele’s performance reviews, work, performance, assessment, ability to work, ability to perform his role, ability to perform his role well, mental status, problems, workplace errors, quality of work and any other related issues raised or reported to the Relevant Staff.
4.All performance review reports and any other related documents including correspondence whether by email or otherwise in relation to the performance reviews of Mr Steele at the ATO prior to 20 December 2011.
(Original Emphasis)
(c)Summons to MLCOA (request dated 10 November 2017)
1.Copies of the contractual terms and conditions (with any financially sensitive material redacted as required) between MLCOA and Comcare with respect to anyone Scott Steele (formerly known as Douglas Eagleton) (‘Scott Steele’) has seen through MLCOA as requested by Comcare since 20 December 2011.
2.Copies of the contractual terms and conditions (with any financially sensitive material redacted as required) between MLCOA and any medical practitioner that has seen Scott Steele through MLCOA as requested by Comcare and/or the Australian Taxation Office (‘ATO’) since 20 December 2011.
3.A copy of MLCOA’s file or files maintained by MLCOA with respect to any request or requests made by Comcare or the ATO including but not limited to records of all telephone conversations with respect to Scott Steele.
4.A copy of any MLCOA documents which set out how communications are carried out between medical practitioners and Comcare or the ATO when MLCOA is engaged as the intermediary and Scott Steele was seen by a medical practitioner through MLCOA.
(Original Emphasis)
PRINCIPLES RELATING TO THE ISSUE AND REFUSAL OF SUMMONSES
The Tribunal’s power to issue summonses is contained in s 40A of the Administrative Appeals Tribunal Act 1975 (AAT Act) which relevantly provides as follows:
Power to summon person to give evidence or produce documents
(1)For the purposes of a proceeding before the Tribunal, the President, an authorised member or an officer of the Tribunal may summon a person to do either or both of the following, on the day, and at the time and place, specified in the summons:
a. appear before the Tribunal to give evidence;
b. produce any document or other thing specified in the summons.
Note: This section does not apply in relation to proceedings in the Social Services and Child Support Division, as a result of provisions in the enactments that authorise applications for reviews that will be heard in that Division.
(2)The President or an authorised member may refuse a request to summon a person.
(3)…
A very useful statement of the general principles applying to the issue of summons for production of documents is set out in Deputy President Forgie’s decision in Phillips and Inspector-General in Bankruptcy [2011] AATA 25 (Phillips).
Spender J in Cosco Holdings Pty Ltd v Commissioner of Taxation & Anor [1997] FCA 1504 approved the approach taken by the Tribunal to apply the principles applicable to subpoenas duces tecum (subpoena to produce documents) issued by the courts to summonses for production of documents issued by the Tribunal.
It is, accordingly, appropriate to look to the law relating to the issue and setting aside of subpoenas in the court systems for guidance on whether the Tribunal should issue the summonses sought by the Applicant. The general principle applying to subpoenas relevant to this matter is:
It is a well-accepted rule that a subpoena may be set aside as oppressive and as an abuse of the process of the court if it requires the production of documents which are manifestly irrelevant to the issues between the parties…
(Re Trade Practices Commission v Kimberley Homes Pty Limited [1989] FCA 262 at [11] per Hill J)
Deputy President Forgie in Phillips at [9] provides a summary of rules developed by the courts as follows:
[9] The courts have developed a number of subsidiary rules that could also be regarded as illustrations of the general rule. Examples were set out by Powell J in Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984] 3 NSWLR 98 when he said that:
“... a reference to the authorities makes it tolerably plain that the court will exercise its undoubted jurisdiction to set aside a subpoena in a variety of cases, as, for example:
1.unless the subpoena was issued for the purpose of a pending trial, hearing or application ...
2.where to require the attendance of a witness would be oppressive ...
3.where the subpoena had not been issued bona fide for the purpose of obtaining relevant evidence and the witness to whom the subpoena had been addressed was unable to give relevant evidence ...
4.where the subpoena has been used for the purpose of obtaining discovery or further discovery against a party ...
5.where the subpoena has been used for the purpose of obtaining discovery against a third party...
6.where to require a party to comply with a subpoena to produce documents would be oppressive ...
7.where the subpoena has been issued for a purpose which is impermissible, as, for example, “fishing” ...” ([1984] 3 NSWLR 98 at 100-101)
This summary was accepted by Beaumont J in Trade Practices Commission v Arnotts Limited (No 2),((1989 21 FCR 306; 88 ALR 90 at 102 […]) Conti J in Mandic v Phillis [2005] FCA 1279; 225 ALR 760 at [33];771 to 772 and Flick J in Pharm-a-Care Laboratories Pty Ltd v Commonwealth of Australia [2009] FCA 1203 at [20].
At paragraph [11] of her decision in Phillips, Deputy President Forgie observes:
11. The statutory limitation upon the exercise of the power to summon mirrors the limitation placed on the courts’ power to issue a subpoena at common law. Beaumont J stated the general test in Trade Practices Commission v Arnotts Ltd (1989) 21 FCR 306; 88 ALR 90 when considering a subpoena issued at the request of Arnotts Ltd (Arnotts) to Mattingly Pty Ltd (Mattingly). Mattingly was a principal to the proceedings between Arnotts and the Trade Practices Commission. Beaumont J said:
“The general test for present purposes is well settled. The issue of a subpoena will be an abuse of process if it is not used for a legitimate forensic purpose: see Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984] 3 NSWLR 98 at 100-1. But, as Deane and Gaudron JJ observed in Hamilton v Oades [1989] HCA 21; (1989) 85 ALR 1 at 11, the court’s general powers in this area have a dual aspect: “The inherent power of a court to control and supervise proceedings includes the power to take appropriate action to prevent injustice ... [This] power ... is not restricted to defined and closed categories ... In this context injustice is not simply a question of the purpose or motive for which the relevant proceedings were instituted but includes a consideration of the consequences of the proceedings for the person invoking the power. The terms ‘oppressive’ and ‘vexatious’ are often used to signify those considerations which justify the exercise of the power to control proceedings to prevent injustice, those terms respectively conveying, in appropriate context, the meaning that the proceedings are ‘seriously and unfairly burdensome’, prejudicial or damaging’ and ‘productive of serious and unjustified trouble and harassment’: Oceanic Sun Line Special Shipping Co Inc v Fay [1988] HCA 32; (1988) 62 ALJR 389 per Deane J at 411; [1988] HCA 32; 79 ALR 9 at 45.”
In other words, the present inquiry is not limited to an analysis of the true purpose of Arnotts in procuring the issue of the subpoena. It is also material to look at the impact of the subpoena upon Mattingly.
Without restricting this inquiry, it is convenient to address the present application in the first instance by reference to two questions:
(1) Does the material sought have an apparent relevance to the issues in the principal proceedings, ie. is adjectival, as distinct from substantive, relevance established? Does the subpoena have a legitimate forensic purpose to this extent? This involves a consideration of the matter from the standpoint of Arnotts.
(2) Is the subpoena seriously and unfairly burdensome or prejudicial? This is to look at the matter from the point of view of Mattingly.” ((1989) 21 FCR 306).
Probably the most cited case on the question of the scope of documents that can be produced under a summons in Tribunal proceedings is the Federal Court of Australia decision in Comcare v Maganga [2008] FCA 285 (Maganga). The following passages in the decision of Bennet J are relevant to the present case:
31. In Fried Weinberg J accepted that there is authority for the proposition that it may be legitimate to issue a subpoena directed to a third party in order to obtain documents which are to be used solely to impeach the credit of a witness (at [24]). Regardless, the subpoena in Fried was issued to capture documents which might have shown that two non party companies had lodged income tax returns without fully declaring interest earned. The substantive proceedings between the parties in Fried did not concern alleged under-reporting of income tax. Accordingly, the documents in question related only to a credit issue, an issue unrelated to the issues in the proceedings. This was recognised by Weinberg J at [26] where his Honour noted that the documents sought were wholly unconnected with those issues.
32. Unlike Fried, Mr Maganga’s credit constituted the main issue in this proceeding. As Weinberg J noted in Fried at [29], there should be a legitimate forensic purpose in seeking the relevant documents which ‘must be identifiable, and likely to facilitate the conduct of the proceeding, not merely to oppress a party or witness’.
…
37. … A party seeking to inspect documents does not need to establish, on the basis of probabilities, that the documents will establish anything (Trade Practices Commission v Arnotts (No 2) [1989] FCA 248; (1989) 21 FCR 306 per Beaumont J; Telstra Corporation at [47], [52] per Graham J). Rather, the test of relevance is whether the documents relate to the proceedings such that there is a real possibility that they may assist in the resolution of issues in the proceedings (Waind per Moffitt P at 384; Bailey v Beagle Management Pty Ltd (2001) 105 FCR 136 at [26]).
38. …The Court may allow documents to be inspected if they are apparently relevant or are on the subject matter of the litigation (Maronis Holdings Ltd v Nippon Credit Australia Ltd (2000) 18 ACLC 609 per Bryson J at [20]) or if they might be used for a legitimate forensic purpose in cross-examination (Maronis at [18], [20]; Carter v Hayes SM (1994) 61 SASR 451 at 453, 456-457 per King CJ, Bollen and Mullighan JJ agreeing; R v Spizzirri [2001] 2 QdR 686 at [24] per Pincus JA, White J agreeing). The summonsed documents, prima facie, were relevant to the claimed fourth injury which claim depended, in turn, on Mr Maganga’s credit.
It must be borne in mind that the exercise that this Tribunal must undertake in determining the substantive application is a consideration on the merits de novo. The Tribunal’s role is not to examine the detail of the reasons given for the decision under review or to analyse how the decision-maker reached his or her decision. It is not even the Tribunal’s role to reach a conclusion based on the evidence that was presented to the original decision-maker. The task of the Tribunal is to consider the merits of the subject matter of the reviewable decision based on all of the evidence including evidence that may not have been before the original decision-maker. Smithers J in Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 77-78 expressed the Tribunal’s task in the following terms:
It might be thought that it would be open to the Administrative Appeals Tribunal not to decide for itself whether a decision made by an administrator was the right decision which ought to have been made in the circumstances but rather to satisfy itself that the decision of the administrator was one which an administrator acting reasonably might have made. But to do this would be to review the reasons for the decision rather than the decision itself. It is the actual decision which by virtue of s 25(1) and (4) of the Administrative Appeals Tribunal Act the Tribunal is authorized and required to review. The duty of the Tribunal is to satisfy itself whether a decision in respect of which an application for review is duly instituted is a decision which in its view, was objectively, the right one to be made. Merely to examine whether the administrator acted reasonably in relation to the facts, either as accepted by him or as found by the Tribunal may not reveal this. In this connection the observations of Sheppard J in Horne v Locke (1978) 2 NSWLR 88 at 98-100 are in point. It is to permit implementation of the function of the Tribunal, as so understood, that there has been conferred upon the Tribunal extensive powers of investigation. Those powers are conferred so that the Tribunal may equip itself to make an appropriate recommendation or affirm the decision: see s 43 of the Administrative Appeals Tribunal Act and Pt XXII of the Schedule thereto.
Accordingly, the determination of what documents might be relevant must be undertaken in light of this Tribunal’s function, not in light of what may have influenced the original decision-maker.
The issues for determination in the substantive application
In order to make a determination on whether documents sought satisfy the relevance tests laid out in the cases referred to above in light of the function to be discharged by this Tribunal in determining the substantive application, it is necessary to identify the issues that require determination in the substantive application. As noted in paragraph 5 above, this is an application for the review of the Respondent’s decision of 25 May 2017 (T185). That decision was to affirm the Respondent’s determined of 3 April 2017 (T161) which determined that the Applicant had no present entitlement to medical treatment or incapacity payments under the SRC Act (refer paragraph 8 above).
The determination that this Tribunal must make in the substantive application is whether, based on all of the evidence presented to the Tribunal, the Applicant as at 3 April 2017 continued to suffer from lumbar strain injury suffered at work on 20 December 2011 entitling the Applicant to compensation for medical expenses under s 16 of the SRC Act, and whether as at 3 April 2017 the Applicant continued to suffer an incapacity to work as a result of that injury entitling the Applicant to payment of compensation under s 19 of the SRC Act. Whether the documents sought by the Applicant are to be produced will, in part, be determined by their relevance, applying the tests laid out in the cases referred to above, to those issues.
Submissions were made by the parties in relation to the scope of the documents sought by the Applicant. The parties made oral submissions on the Respondent’s objection to the summonses proposed by the Applicant at a hearing on 14 February 2018.
The thrust of the Respondent’s submissions, set out in emails received by the Tribunal on 15 January 2018 and 5 February 2018 and spoken to at the hearing on 14 February 2018, were:
(a)the test is whether the documents relate to the proceedings such that there is a real possibility that they may assist in the resolution of issues in the proceedings (see: Comcare v Maganga (2008) 101 ALD 68, at [37]). Documents may not be sought for a purpose other than the review of the decision by the AAT: Re Phillips and Inspector General in Bankruptcy [2011] AATA 25 at [11]. Seeking documents in the mere hope they will contain something useful is an impermissible fishing expedition: Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons (1952) 72 WN (NSW) 250 at 254. Mere conjecture that there may be something which might, in some way, assist a party falls short of showing it is “on the cards” that documents will assist a party's case: Ran v the Queen (1996) 16 WAR 447 at 452;
(b)the issues for the Tribunal in the substantive application are:
·what, if any, is the diagnosis of the applicant’s physical condition;
·does the applicant continue to suffer the effects of the accepted work related “lumbar sprain’’ condition; and
·if so, does that condition result in an incapacity for work or the need for medical treatment.
(c)the documents sought go beyond those which would have a real possibility in assisting in the resolution of the proceedings and appear to be sought for a purpose other than for the purpose of the proceedings before the Tribunal; and
(d)the Respondent does not object to production of documents that relate directly to the Applicant’s injury or his ability to work or perform his role.
(see the Respondent’s submissions dated 5 February 2018)
The Applicant provided submissions in response to the Respondent’s submissions by email on 15 January 2018 and spoke to those submissions at the hearing on 14 February 2018. The thrust of the Applicant’s submissions was:
(a)in relation to the summons to the ATO, the issue of how much he should be receiving should be dealt with in these proceedings;
(b)the Respondent has behaved unlawfully which “will be raised in these proceedings”;
(c)in relation to the summons to the Respondent, the documents sought were to establish that the Respondent’s “conduct goes well beyond ‘errors’”. It has been downright unlawful to the extent that the AG’s office has suggested that the AFP might need to get involved;
(d)the documents would assist in the Applicant seeking an indemnity costs order against the Respondent; and
(e)in relation to the summons to MLCOA, the fact that MLCOA is used so widely by the Respondent raises concerns about that company’s independence.
The Applicant’s submissions also contained the following:
I was informed at the telephone directions hearing by Mr Burgess that he said that Comcare does not want to deal with the amount it should be paying due to my limited capacity, and if successful he would ask that the AAT send the matter back to Comcare for consideration of that issue. I was taken by surprise that everything would not be dealt with as once [sic] especially given the evidence was before the Tribunal and a determination had already been made previously that I had reduced capacity to work.
…
If this is common practice not to deal with these issues when it is already before the AAT, then in my view that practice should be addressed. That’s because surely it’s not an efficient use of Commonwealth resources and seems inconsistent with obligations of both Comcare and the AAT to proceed with way…
While the Tribunal makes no comment on the accuracy of that submission made by the Applicant, that submission and other statements made by the Applicant in his submissions, other correspondence with the Tribunal and at the hearing on 14 February 2018, provide something of an insight into a possible misconception underlying the Applicant’s request for production of certain documents. The Applicant seeks documents that are not relevant to the issues that this Tribunal must determine as identified in paragraph 22 above, but rather, it seems, documents relating to broader concerns that the Applicant has with what he considers to be inappropriate or improper behaviour by the Respondent (and potentially others). That seems to underpin his explanation for seeking some of the types of documents that are described in the proposed summonses.
The documents to be produced must pass the adjectival and or apparent relevance to the issues for determination in the substantive application tests for production of documents set out in the cases referred to above. Generally, the documents described in the proposed summonses fail the relevant tests.
Other grounds of objection
Although it is not specifically raised by the Respondent, it is the Tribunal’s view that the proposed summonses also fall foul of other general principles relating to summonses and subpoenas.
As noted in paragraph 14 above, the law relating to the issue of summonses to produce documents reflects the law relating to the issue of subpoenas by courts (Cosco Holdings Pty Ltd v Commissioner for Taxation [1997] FCA 1504). Over the years the courts have developed a number of bases on which objection can be taken to a subpoena for the production of documents. The primary one, dealt with above, is relevance. There are, however, several others. Relevantly, another category is subpoenas that are an abuse of process:
(a)this category encompasses any subpoena that is issued to secure documents for a purpose other than a legitimate forensic purpose in the proceedings. As Hill J said in Trade Practices Commission v Kimberley Homes Pty Limited (1989) 217 ALR 110 at 113:
... but an illustration of the wider rule that a subpoena will always be set aside if it is shown to be an abuse of the court’s process. The court has a real interest that its process be not abused ...;
(b)the Tribunal also notes the comments of Dean and Gaudron JJ in Hamilton v Oades [1989] HCA 21; (1989) 85 ALR 1 at 11:
The inherent power of a court to control and supervise proceedings includes the power to take appropriate action to prevent injustice ... [This power] is not restricted to defined and closed categories ... In this context injustice is not simply a question of the purpose or motive for which the relevant proceedings were instituted but includes a consideration of the consequences of the proceedings for the person invoking the power;
(c)in Trade Practices Commission v Arnotts Ltd (No 2) (1989) 88 ALR 90 at 102 Beaumont J outlined two different aspects of the concept of an abuse of process:
The general test for present purposes is well settled. The issue of a subpoena will be an abuse of process if it is not used for a legitimate forensic purpose: see Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984] 3 NSWLR 98 at 100-1. But, as Deane and Gaudron JJ observed in Hamilton v Oades [1989] HCA 21; (1989) 85 ALR 1 at 11, the court’s general powers in this area have a dual aspect: “The inherent power of a court to control and supervise proceedings includes the power to take appropriate action to prevent injustice ... [This] power ... is not restricted to defined and closed categories ... In this context injustice is not simply a question of the purpose or motive for which the relevant proceedings were instituted but includes a consideration of the consequences of the proceedings for the person invoking the power. ...;
(d)Steytler P of the West Australian Court of Appeal in the case of Commonwealth of Australia v Albany Port Authority [2006] WASCA 185 noted:
In R v Carroll (2002) 213 CLR 635 at 657 [73], Gaudron and Gummow JJ said that “the circumstances in which proceedings will constitute an abuse of process cannot be exhaustively defined and, in some cases, minds may differ as to whether they do constitute an abuse”. (See also Batistatos [V Roads & Traffic Authority of New South Wales [2006] HCA 27; (2006) 80 ALJR 1100] at [7] and [9]). What is clear, however, is that the concept extends to proceedings that are “seriously and unfairly burdensome, prejudicial or damaging” (Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 at 247); “productive of serious and unjustified trouble and harassment” (Oceanic Sun Line, ibid; Hamilton v Oades (1989) 166 CLR 486 at 502 and Ridgeway v R (1995) 184 CLR 19 at 74 - 75); invoked for an illegitimate purpose (Rogers v R (1994) 181 CLR 251 at 286 per McHugh J); or such as to “bring the administration of justice into disrepute” (Rogers, ibid): see, generally, Batistatos at [14] - [15]. It is also clear that, while many cases of abuse arise from the institution of proceedings, any procedural step in the course of proceedings that have been properly instituted is capable of being an abuse of the court's process: Rogers, ibid, and Batistatos at [15];
(e)as DP Forgie notes at [215] in General Merchandise and Apparel Group P/L and CEO of Customs and Australian Weaving Mills (Party Joined) [2009] AATA 988, in relation to the above passage in Steytler P’s decision:
215. What their Honours refer to as an abuse of process appears in other contexts to be described as oppressiveness. What amounts to oppressive is not something that can be defined with particularity but examples of oppressiveness can be drawn from the cases. So, for example, a subpoena drawn in very wide terms requiring “...the Police to search every Police station in New South Wales to determine whether any of the very broad categories of documents listed in the 27 paragraphs [of the subpoena] are within the possession, custody or control of any police officer ...” was found to be oppressive. Language used in the subpoena that is unclear and embarrassing leads to the same conclusion; and
(f)Clarke J considered this question in Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corporation Ltd; Kirby v Southern Pacific Hotel Corporation Ltd [1984] 1 NSWLR 710 and said:
The court, in determining whether a subpoena is oppressive, is concerned with whether in all the circumstances the demand is, for relevant purposes, too wide or uncertain. For this purpose it must determine whether the terms of the subpoena convey to the recipient in relatively clear language the document or class of document called for. The court would inquire, I apprehend, as to the meaning which would be conveyed to members of the public as opposed to the meanings which might be conveyed to lawyers engaged in a debate upon construction…
In the present case the width and vagueness of the descriptions of the documents sought, certainly in relation to the proposed summonses to be issued to the Respondent and the ATO, also cause those summonses to be an abuse of process as that term is defined by the principles set out in the above cases. In many cases the recipient of the summons would be required to speculate or form value judgments on what documents fall within categories described. Given that s 61 of the AAT Act makes it an offence for a person not to comply with a summons, that is a position in which a recipient of a summons should not be put.
Also, in a number of cases the summonses are misconceived in that they seek more than the production of documents. They are more by way of interrogatories by which the Applicant poses questions or seeks information, not documents. For instance, paragraphs 3, 16 and 17 in the proposed summons addressed to the Respondent ask (as set out in paragraph 11(a) above) the Respondent to “identify” material. That is not the purposes of a summons.
Fishing expedition
It is also an abuse of process for a party to issue a summons as a “fishing expedition”. This occurs where the summons is, in effect, based on mere speculation that the person to whom the summons is addressed has relevant material. A summons that is based on such speculation is considered by the courts to be oppressive.
Owen J in Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN(NSW) 250 described the concept of fishing expedition as follows:
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.
King CJ, with whom White and Millhouse JJ agreed, said in Hunt v Wark (1985) 40 SASR 489 said:
... There must be some reason to suppose that the documents sought will be capable of being used …
In a number of cases the documents sought by the Applicant in the proposed summonses fall into the categories described above which makes the summonses, in part at least, fishing expeditions.
CONCLUSION
The Tribunal finds that:
(a)the proposed summonses seek documents that are, applying the proper legal tests, not relevant to matters in issue;
(b)there is no apparent forensic purpose to which the documents sought could be put in these proceedings;
(c)the descriptions of the documents sought are vague and too wide and require the recipients to interpret or guess what documents fall into the categories sought; and
(d)in some cases it appears to the Tribunal that the purposes for seeking the documents goes to a broader complaint that the Applicant has against the Respondent and certain officers of the Respondent not relevant to the matter for determination by this Tribunal.
DECISION
For the reasons set out above the Tribunal refuses the Applicant’s request to issue the summonses to produce documents in the form proposed by the Applicant.
I certify that the preceding 38 (thirty-eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President S Boyle
...[sgd]....................................................................
Administrative Assistant - Legal
Dated: 14 March 2018
Date of hearing: 14 February 2018 Applicant: Self-Represented Representative for the Respondent: Mr Ashley Burgess Solicitors for the Respondent: Sparke Helmore Lawyers
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