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’…
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Details
- AGLC
- Steele and Comcare (Compensation) [2018] AATA 481
- Case
- [2018] AATA 481
- Decision Date
CaseChat Overview and Summary
This matter came before Deputy S Boyle P of the Administrative Appeals Tribunal concerning the Applicant's request for the Tribunal to issue summonses for the production of documents. The Applicant, formerly employed by the ATO, sought these documents in support of his substantive application to review Comcare's decision that it had no present liability for medical treatment and incapacity payments under the *Safety, Rehabilitation and Compensation Act 1988* (SRC Act). Comcare had accepted liability for a lumbar strain suffered by the Applicant in 2011, but later determined that his current symptoms were due to age-related degeneration unrelated to his employment.
The legal issues before the Tribunal were whether the proposed summonses were appropriate to issue, considering the potential for them to assist in the resolution of the issues in the proceedings, and whether they constituted an abuse of process or a "fishing expedition." The Applicant sought a wide range of documents from Comcare, the ATO, and MLCOA, relating to the decision-making process, the engagement of medical experts, internal reviews, and the Applicant's employment history and performance at the ATO.
The Tribunal reasoned that the proposed summonses were overly broad and vague, requiring recipients to interpret or guess the documents sought. It found that many of the requested documents were not relevant to the core issue before the Tribunal, which was the correctness of Comcare's decision regarding present liability for medical treatment and incapacity payments as at April 2017. The Tribunal concluded that there was no apparent forensic purpose for which the documents could be used in the proceedings and that some requests appeared to stem from broader complaints by the Applicant against Comcare and its officers, which were not relevant to the determination of the substantive application.
Consequently, the Tribunal refused the Applicant's request to issue the summonses in the form proposed.
The legal issues before the Tribunal were whether the proposed summonses were appropriate to issue, considering the potential for them to assist in the resolution of the issues in the proceedings, and whether they constituted an abuse of process or a "fishing expedition." The Applicant sought a wide range of documents from Comcare, the ATO, and MLCOA, relating to the decision-making process, the engagement of medical experts, internal reviews, and the Applicant's employment history and performance at the ATO.
The Tribunal reasoned that the proposed summonses were overly broad and vague, requiring recipients to interpret or guess the documents sought. It found that many of the requested documents were not relevant to the core issue before the Tribunal, which was the correctness of Comcare's decision regarding present liability for medical treatment and incapacity payments as at April 2017. The Tribunal concluded that there was no apparent forensic purpose for which the documents could be used in the proceedings and that some requests appeared to stem from broader complaints by the Applicant against Comcare and its officers, which were not relevant to the determination of the substantive application.
Consequently, the Tribunal refused the Applicant's request to issue the summonses in the form proposed.
Orders
Orders of the court
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Background
Background to the litigation
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 reports20.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
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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.
Ratio Decidendi
Legal Principle Established
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