Thomas v Camec Pty Ltd
[2020] VMC 16
•3 August 2020 (In Chambers)
IN THE MAGISTRATES’ COURT OF VICTORIA
AT MELBOURNE
WORKCOVER DIVISION OF COURT
Case No. L10589501
| JASON THOMAS | Plaintiff |
| v | |
| CAMEC PTY LTD | Defendant |
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MAGISTRATE: | M Hoare |
WHERE HELD: | Melbourne |
DATE OF APPLICATION: | 23 July 2020 |
DATE OF DECISION: | 3 August 2020 (In Chambers) |
CASE MAY BE CITED AS: | Thomas v Camec Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2020] VMC 016 |
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CATCHWORDS – Workers Compensation – Rejection of Claim for Weekly Payments and Medical and Like Expenses - Access to Medicare Records – Objection to Subpoena - COVID-19 Omnibus (Emergency Measures) Criminal Proceedings and Other Matters Regulations 2020, Part 9 – Civil Procedure Act 2010, Part 2.3 – Workplace Injury Rehabilitation and Compensation Act 2013.
RULING
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APPEARANCES: | COUNSEL | SOLICITORS |
For the Plaintiff | Maxiom Injury Lawyers | |
For the Defendant | Russell Kennedy |
HER HONOUR:
Introduction and Overview
- The issue for decision relates to the plaintiff Mr Thomas’ objection to the release of documents in respect of a subpoena issued by the defendant Camec Pty Ltd (‘Camec’). The subpoena is addressed to Medicare (‘the Medicare subpoena’).
- The Medicare subpoena was issued in the context of workers’ compensation statutory benefits proceedings.
Mr Thomas, who was aged 47 years at the time of making his claim for psychiatric injury, was employed by Camec in a sales manager type role from about 1 May 2017 until ultimately ceasing work on 26 August 2018. He claims weekly payments of compensation and medical and like expenses in accordance with the Workplace Injury Rehabilitation and Compensation Act 2013 (‘the Act’).
The claim was rejected by the WorkCover Authorised Agent on several grounds, including that:
- Mr Thomas’ claimed injury did not arise out of or in the course of employment with Camec;
- Employment was not a significant contributing factor to a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease;
- The claimed mental injury is not compensable due to the operation of s.40(1) of the Act, the injury having been caused wholly or predominantly by management action taken on reasonable grounds and in a reasonable manner.
- Both parties consented to the subpoena objection being decided in Chambers under Part 9 of the COVID-19 Omnibus (Emergency Measures) Criminal Proceedings and Other Matters Regulations 2020. Accordingly, both parties filed and served written submissions.
Defendant’s Submissions
The defendant filed and served submissions dated 22 July 2020.
Records sought by Camec under the Medicare subpoena were:
·documents and records including a Medicare claims history and statement of benefits for the period from 26 August 2014 to 26 August 2019.
Matters relied upon the defendant in respect to the Medicare subpoena were as follows:
·Mr Thomas had, in a meeting with his employer on 20 October 2017, disclosed an anxiety condition as well as the fact that he had been meeting with a ‘life coach’ from April 2017;
·Mr Thomas had apparently ‘later advised’ Camec’s CEO that he had suffering from anxiety since he was in his mid-30s;
·In late 2019, Mr Thomas provided a history of treatment for pre-existing psychological issues back in 2005/2006 to his treating psychiatrist Dr Dulip Dharmage and to an independent medical examiner Dr Timothy Entwisle.
·In a pre-employment medical report completed for Camec dated 27 March 2017, Mr Thomas ticked a box to indicate that he had not previously been treated for anxiety/depression or any other mental health issues.
·On 24 September 2019 Mr Thomas told a circumstance investigator for the WorkCover Agent that he had been treated in July 2019 for anxiety and depression at Access Medical Group. Mr Thomas’ solicitors advised the defendant’s solicitors (by letter dated 25 March 2020) that Mr Thomas had been treated at a GP clinic other than Access Medical Group and by Dr Dharmage.
- The defendant asserts the documents sought under the Medicare subpoena are ‘relevant’ as they may reveal Mr Thomas was receiving psychological or psychiatric treatment ‘from practitioners the defendant is not aware of which, could be for issues other than the alleged work relate causes which may be a cause of his incapacity for work. Further the document may demonstrate his injury is a mental injury wholly or predominantly by the defendant’s management action’.
- The defendant seeks leave to inspect the records produced in response to the Medicare subpoena and costs in the cause.
Plaintiff’s Submissions
11.The plaintiff filed and served submissions dated 22 July 2020 and annexed copies of reports of Mr Thomas’ treating psychiatrist Dr Dharmage (a CommInsure Claim for Income Protection Mental Health Management report dated 13 March 2020 and an earlier medical report dated 31 December 2019) as well the defendant’s medical report of Dr Entwisle dated 2 October 2019.
12.There is consistency, according to the plaintiff’s solicitors, in the medical opinions of psychiatrists for both parties, Dr Dharmage and Dr Entwisle, as to Mr Thomas having suffered a diagnosable psychiatric injury caused by his employer.
13.The plaintiff objects to the Medicare subpoena on the grounds of relevance, asserting that the records have no relevance to determining whether the plaintiff has suffered a compensable psychiatric injury. The plaintiff further asserts that the records sought under the subpoena will not assist the Court to determine the issue of whether his injury was caused wholly or predominantly by management action taken on reasonable grounds and in a reasonable manner.
14.The plaintiff therefore submits the Medicare subpoena has no legitimate forensic purpose and constitutes a fishing expedition on the part of the defendant.
15.The plaintiff seeks to have the subpoena set aside by the Court and seeks its costs.
The Law
16.The burden of proof lies with the defendant as the party seeking the documents. In the event the defendant fails to discharge the onus, the subpoena must be set aside.
17.The well-established principles that apply to determining subpoena objections are in accordance with the authorities of R v Saleam (No 2) [1999] NSWCCA 86 and the statement of his Honour Justice J Forrest in The Commissioner of the Australian Federal Police v Magistrates Court of Victoria & Ors [2011] VSC 3 at [28].
18.In order to discharge the onus, it is necessary for the defendant to identify a legitimate forensic purpose and to do so ‘expressly and precisely’. The defendant must also satisfy the court that it is ‘on the cards’ or a ‘reasonable possibility’ that the documents sought will materially assist the case for the defence.
Analysis
19.In approaching the task of identifying whether a legitimate forensic purpose exists in respect of the subpoenas, I have considered the parties’ written submissions including medical material annexed to the plaintiff’s submissions. In accordance with the guiding principles in The Commissioner of the Australian Federal Police, I have not inspected the documents sought to be produced.
20.The defendant seeks access to Mr Thomas’ Medicare records for a period five years prior to him ceasing work with Camec due to the claimed psychiatric injury.
21.The defendant’s assertion of records’ relevance to the matters in dispute apparently arises due to the past history of psychological issues disclosed to Dr Dharmage and Dr Entwisle, because there may be other causes for his claimed incapacity for work and other practitioners involved the identify of whom the defendant is unaware.
22.The plaintiff, on the other hand, points to the consistency of opinion of the psychiatrists, Dr Dharmage and Dr Entwisle, in relation to causation such that the records do not have relevance to determining whether the plaintiff has suffered a compensable psychiatric injury. The record also will not assist the Court to determining whether the injury was non-compensable due to the operation of s.40(1) of the Act.
23.It is clear from the authorities including The Commissioner of the Australian Federal Police that ‘the relevance of a document alone will not substantiate an assertion of legitimate forensic purpose’ nor is a legitimate forensic purpose established where the documents sought are ‘to see whether they may be of relevance or of assistance in his or her defence’: [2011] VSC 3 at [28].
24.Given the matters referred in the defendant’s submissions regarding Mr Thomas’ psychological history, it may well be that the identity of practitioners who have treated Mr Thomas for this condition, for example concurrent with his employment with Camec, could be relevant to the proceeding. For example, Mr Thomas disclosed he has been treated in July 2019 for anxiety and depression at Access Medical Group, yet that clinic was not referred to in the plaintiff’s solicitors’ letter of 25 March 2020.
25.However, the submissions of both parties are silent as to whether the defendant has in fact issued a subpoena to obtain the particular clinic or, further, what enquiries (if any) have been made of the plaintiff’s solicitors as to the identity of treating practitioners either during or prior to the period of Mr Thomas’ employment.
- Rather, the defendant elected to pursue the issuing of the Medicare subpoena for a period of five years prior to Mr Thomas ceasing work. I consider that the defendant has failed in to identify expressly and precisely, as it is required to do, the legitimate forensic purpose that would be served by permitting access to the plaintiff’s entire Medicare history for some five years prior to him becoming incapacitated. I note that the defendant has apparently not sought to subpoena the records of the Access Medical Group nor made additional enquiries of the plaintiff’s solicitors as to the identity of treating practitioners either during or prior to the period of Mr Thomas’ employment. In my view, on the material before me, the issuing of Medicare subpoena for a five-year period was a fishing expedition based on speculation and lacked a legitimate forensic purpose.
27.I find that the defendant has failed to discharge the burden of proof in identifying expressly and precisely a legitimate forensic purpose in respect of the Medicare subpoena nor how it is ‘on the cards’ that the defence would be assisted by the documents to which access is sought.
- Finally, it is worth noting that, as with all proceedings in the WorkCover division of this Court, this matter is governed by Part 2.3 of the Civil Procedure Act 2010. Parties to litigation therefore have overarching obligations: to cooperate with each other (s.20); to use reasonable endeavours to resolve disputes (s.22); to narrow the issues in dispute (s.23); to disclose the existence of all documents of which a party is aware and which the person considers, or ought reasonably consider; are critical to the resolution of the dispute.
- In my view, therefore, in proceedings of this kind, the overarching obligations make it incumbent on parties to use reasonable endeavours to cooperate in identifying and exchanging material including medical material that may be relevant to proceedings.
Conclusion
30.For the reasons outlined, the Medicare subpoena issued by the defendant must be set aside.
31.I order that the defendant pay the plaintiff’s costs of the interlocutory application the amount and scale of which to be reserved.
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