Webeck and Comcare (Compensation)
[2023] AATA 3598
•7 November 2023
Webeck and Comcare (Compensation) [2023] AATA 3598 (7 November 2023)
Division:GENERAL DIVISION
File Number(s): 2023/0375; 2023/1678
Re:Kenneth Webeck
APPLICANT
ComcareAnd
RESPONDENT
INTERLOCUTORY DECISION
Tribunal:Mr S. Webb, Member
Date:7 November 2023
Place:Canberra
Objections not upheld. Comcare is granted access to the documents produced under summons by Capital Pain and Rehabilitation Clinic without redaction.
……….………[sgd]………………….
Mr S. Webb, Member
Catchwords
PRACTICE AND PROCEDURE – summons – production of medical records – objections to grant of access – relevant principles – Harman obligation – objections refused
Legislation
Administrative Appeals Tribunal Act 1975 ss 2A, 39, 40B
Safety, Rehabilitation and Compensation Act 1988 ss 16, 29, 39, 64
Cases
Esso Resources Australia Ltd v Plowman [1995] HCA 19
Harman v Secretary of State for the Home Department [1983] 1 AC 280
Otter Gold Mines Ltd v McDonald [1997] FCA 694
REASONS FOR DECISIONMr S. Webb, Member
7 November 2023
Kenneth Webeck applied for review of decisions made by Comcare in respect of his entitlement to compensation for work-related injury in his previous employment by the Australian Federal Police. Mr Webeck is seeking compensation for a pair of lace-less shoes and for household support and attendant care services. Comcare refused these claims.
In the course of the Tribunal proceedings, at Comcare’s request, on 27 July 2023, the Tribunal issued a summons for production of records held by Capital Pain and Rehabilitation Clinic (Clinic).
On 13 September 2023, documents in compliance with the summons were duly produced by the Clinic (Documents).
On 15 September 2023, the Tribunal issued inspection orders, granting Mr Webeck leave to inspect the Documents from 18 September 2023 and, subject to objection, leave for Comcare to inspect the documents from 3 October 2023.
On 3 October 2023, Mr Webeck lodged an objection to Comcare being granted leave to inspect the documents.
Each party was invited to make submissions addressing this issue, which I have carefully considered.
Mr Webeck advanced 2 key grounds of objection:
(a)Comcare’s reconsideration decision in respect of the lace-less shoes claim is nugatory on grounds of jurisdictional error, namely Comcare failed to address the statutory questions posed by s 39 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act); and
(b)Granting leave for Comcare to inspect the Documents without an enforceable order limiting disclosure of [Mr Webeck’s] private and sensitive medical information for the purpose only of these proceedings would not be procedurally fair or just.
With regard to the first ground of objection, if Comcare failed to address a statutory question posed in the legislation being applied, that failing is amenable to correction on review by the Tribunal. This is a legal question which can be dealt with when Mr Webeck’s application is heard and decided. The Tribunal makes a fresh decision in place of Comcare’s reconsideration decision and, in so doing, for the purposes of the review, it may exercise all the powers conferred on the reconsideration decision-maker: s 43, Adminstrative Appeals Tribunal Act 1975 (AAT Act).
This ground of objection cannot be upheld.
With regard to Mr Webeck’s second ground of objection, the proposition the Tribunal is not bound by the rules of evidence is correct. Mr Webeck asserts:
If the Tribunal was to decide my objection to be not upheld, the summons material will be received as evidence and can be disclosed by Comcare for any other purpose.
The substantive rule of law regarding disclosure applies to litigation before a Court, where a party is compelled either by reason of a rule of Court or by reason of a specific order of the Court to disclose documents or information.
In my opinion, the Tribunal cannot guarantee that Comcare’s inspection of my private and sensitive medical information (summons documents) will not be disclosed to other related Comcare entities for another purpose outside of these proceedings, once received as evidence in these proceedings.
This submission proceeds on 2 incorrect assumptions.
The first is that grant of leave for Comcare to inspect the Documents would mean the Documents are received as evidence. This is incorrect. The grant of leave for a party to inspect documents produced under summons is for the purposes of enabling the party to have a reasonable opportunity to prepare their case and to do so on the basis of materials of at least adjectival relevance on which they will rely. It is only at a hearing such documents would be taken into evidence. Documents produced under summons do not form part of the evidence unless and until they are tendered and taken into evidence at a hearing. The procedure for admitting documents into evidence is one which includes opportunity for objection. It cannot be assumed documents produced under summons will form part of the evidence on which the Tribunal decides the particular case.
The second incorrect assumption is that the rule of law relating to disclosure applies only in litigation before a court. This is incorrect. The rule of law, also know as the Harman obligation,[1] applies in proceedings before the Tribunal: the obligation is owed to the Tribunal.[2] It is incidental to the power to compel production using the Tribunal’s summons power in s 40A of the AAT Act, and it is not conditioned by direct enforcement powers.
[1] Harman v Secretary of State for the Home Department [1983] 1 AC 280 at 304, 309, 319, 320 and 321.
[2] Otter Gold Mines Ltd v McDonald [1997] FCA 694; (1997) 76 FCR 467 at 471–472.
The obligation is dealt with in Part 5 of the Tribunal President’s General Practice Direction issued on 28 February 2019.
If leave to inspect the Documents is granted to Comcare, Comcare is bound by the obligation, which is a substantive rule of law, unless released by the Tribunal. At the level of principle, the non-disclosure obligation arises from the compulsion under which the subject materials were produced. The obligation persists unless, or until, the materials are tendered and taken into evidence whereupon, subject to any non-publication or other confidentiality order of the Tribunal, they enter the public domain.[3]
[3] Esso Resources Australia Ltd v Plowman [1995] HCA 19, per Mason CJ, with whom Dawson and McHugh JJ agreed, at [41].
The sensitive, private nature of his personal medical information contained in the Documents can be accepted. The use to which the Documents can be put by Comcare should leave to inspect be granted is strictly confined to the purposes of these proceedings.
In consideration of these matters, Mr Webeck’s second ground of objection is not upheld.
I am not persuaded an order of the kind Mr Webeck has referred to in his objection is required at this time. Certainly, the Tribunal has power to make confidentiality and non-disclosure orders in respect of information lodged with or given to the Tribunal where it is desirable to do so, having regard to the principle on which such matters are to be decided. Presently, I do not comprehend Mr Webeck’s objection as an application for such an order. Even if I am wrong about that, the terms of his objection and the reasons for it are cast in broad terms which are not sufficient to justify making such an order. The binding nature of the Harman obligation on Comcare weighs against the desirability and the need to order non-disclosure of the Documents in the terms and for the reasons Mr Webeck has outlined.
Decision
Objections not upheld.
I certify that the preceding 19 (nineteen) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member.
.............................[sgd]......................................
Associate
Dated: 7 November 2023
Date final submissions received: 11 October 2023 Applicant: Mr Kenneth Webeck
Solicitors for Respondent: Mr Ben Mason, Moray & Agnew Lawyers
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