Webeck and Comcare (Compensation) - [2023] AATA 3598

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 DECISION
Mr 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Webeck and Comcare (Compensation)

Details

AGLC: Webeck and Comcare (Compensation) [2023] AATA 3598
Case: [2023] AATA 3598
Decision Date: 7 November 2023

CaseChat Overview and Summary

This matter concerned objections raised by Mr. Webeck regarding the production of medical records in proceedings before the Administrative Appeals Tribunal (AAT) against Comcare. Mr. Webeck sought to prevent the disclosure of these documents.

The primary legal issue before the Tribunal was whether to uphold Mr. Webeck's objections to the production of his medical records and, if so, what form of confidentiality or non-disclosure order, if any, was warranted. The Tribunal also considered the scope of its power to make such orders and the principles governing their exercise.

The Tribunal determined that Mr. Webeck's objections, as articulated, were not sufficiently specific or compelling to justify making a confidentiality or non-disclosure order at that stage. While acknowledging its power to impose such orders where desirable, the Tribunal found that the existing *Harman* obligation, which binds Comcare to maintain the confidentiality of documents produced in litigation, weighed against the necessity of further specific orders based on the broad reasons provided by Mr. Webeck. Consequently, the objections were not upheld.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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