Webeck and Comcare (Compensation) - [2023] AATA 2899

Webeck and Comcare (Compensation) [2023] AATA 2899 (12 September 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:12 September 2023
Place:Canberra

Objections not upheld. Comcare is granted access to the balance of the documents produced under summons by Atherfield Medical and Skin Cancer Clinic without redaction.

………………[sgd]……………………
Mr S. Webb, Member
Catchwords
PRACTICE AND PROCEDURE – summons – production of medical records – objections to grant of access – relevant principles – adjectival relevance – right to privacy – reasonable opportunity to prepare case – objections refused
Legislation
Administrative Appeals Tribunal Act 1975 ss 2A, 39, 40B
Safety, Rehabilitation and Compensation Act 1988 ss 16, 29, 39, 64
Cases
BrisConnections Finance Pty Ltd (Receiver and Manager Appointed) v Arup Pty Ltd [2016] FCA 906
Comcare v Maganga [2008] FCA 285
Cosco Holdings Pty Ltd v Federal Commissioner of Taxation [1997] FCA 1504
Frugtniet v Australian Securities and Investments Commission [2019] HCA 16
Hearne v Street [2008] HCA 36
Hunt v Wark (1985) 40 SASR 489
Jack Brabham Engines Pty Ltd v Beare [2010] FCA 35
O’Sullivan and P&O Maritime Services Pty Ltd [2019] AATA 2966
Panagiotou and TNT Australia Pty Ltd [2011] AATA 565
South Pacific Hotel Services Inc v Southern Pacific Hotel Corporation Ltd [1984] 1 NSWLR 710
Trade Practices Commission v Arnotts Pty Ltd & Ors [1989] FCA 248
Wong v Sklavos [2014] FCAFC 120

REASONS FOR DECISION
Mr S. Webb, Member
12 September 2023

Kenneth Webeck was injured in employment by the Australian Federal Police (AFP). Over many years he claimed and was paid compensation. After ceasing employment, he claimed compensation for a pair of lace-less shoes and household and attendant cares services. Comcare refused his claims by primary determination and on reconsideration. Mr Webeck applied to the Tribunal for review of these decisions.
In the course of the resulting proceedings, Comcare requested the Tribunal to summons materials from the Atherfield Medical and Skin Cancer Clinic (Atherfield).
On 27 July 2023, Comcare’s request was granted over Mr Webeck’s objection.
On 2 August 2023, Atherfield produced documents in compliance with the summons.
On 4 August 2023, the Tribunal issued inspection orders granting the parties access to the documents produced by Atherfield, with Mr Webeck being granted first access on 7 August 2023 and Comcare’s access from 21 August 2023 being subject to objection.
On 9 August 2023, Mr Webeck lodged an objection to Comcare being granted leave to inspect some of the documents produced by Atherfield. Mr Webeck identified and compiled the documents under objection in a folder. The objection is in the following terms:
Please find attached a copy of the summons documents from Atherfield Medical and Skin Cancer Clinic that I consider relevant to my case.
In addition, to assist the Tribunal, I have tagged the documents in the orange folder that I do not object to the Respondent having access to inspect. All other documents that…

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 2899
Case: [2023] AATA 2899
Decision Date: 12 September 2023

CaseChat Overview and Summary

This matter concerned objections raised by Mr Webeck to the production of certain medical records to Comcare. The dispute arose in the context of review proceedings before the Administrative Appeals Tribunal concerning Mr Webeck's claims for compensation under the *Safety, Rehabilitation and Compensation Act 1988* (Cth).

The Tribunal was required to determine whether the medical records sought by Comcare were relevant to the statutory questions it was obliged to address in the review proceedings, and whether Mr Webeck's objections based on privacy grounds should be upheld. Specifically, the Tribunal needed to consider the nexus between Mr Webeck's claimed injury and the compensation sought, including the reasonableness thresholds stipulated in the Act for medical treatment, household services, attendant care services, and aids.

The Member reasoned that for the Tribunal to make necessary factual findings, probative material was required. While acknowledging that some documents might contain information not directly relevant or of no relevance at all, the Member found a real possibility that some or all of the documents were "adjectivally relevant" to the issues before the Tribunal. This was particularly the case where the documents referred to symptoms or treatments that could inform considerations under various sections of the Act. The Member recognised the importance of the right to privacy, especially concerning sensitive personal information, but held that such objections could not be upheld if the information was at least adjectivally relevant. Applying established principles, the Tribunal balanced the competing interests of privacy against the public interest in the due administration of justice and the availability of relevant material to enable parties to advance their cases, finding the latter interest to be predominant.

Consequently, Mr Webeck's objections on grounds of relevance and privacy were not upheld. The Tribunal granted Comcare leave to inspect the remaining documents produced by Atherfield without redaction.

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

In conclusion, Mr Webeck’s objections on grounds of relevance and privacy are not made out. Decision The objections are not upheld. Comcare will be given leave to inspect the balance of the documents produced under summons by Atherfield without redaction forthwith.

Ratio Decidendi

Legal Principle Established

At the heart of these considerations of relevance are the statutory questions the Tribunal must address in the review proceedings. Consideration In each of these applications, the Tribunal will be required to make factual findings relevant to Mr Webeck’s claims, applying relevant provisions of the SRC Act. The starting point in such cases is the existence of an injury in respect of which the particular compensation is sought. Under each head of entitlement, in respect of compensation for medical treatment expenses, household services, attendant care services or aids for the use of the employee, the requisite nexus with the claimant’s injury must be made out. The nexus is expressed in statutory language, including in relation to (s 16(1)), as a result of (s 29(1) and s 29A(1)) and resulting in impairment (s 39(1)). Furthermore, thresholds of reasonableness apply under the heads of compensation in this case, namely treatment it was reasonable for the employee to obtain under s 16(1), household or attendant care services the claimant reasonably requires under s 29(1) and s 29A(1), and aids reasonably required by the employee under s 39(1). In order to make factual findings in respect of such matters, relevant probative material will be required. While some of the Atherfield documents within the terms of Mr Webeck’s objection contain information about matters which do not appear to be of direct relevance to such considerations, and some may be of no relevance at all, I am satisfied at this stage of the proceedings and for present purposes there is a real possibility some, if not all, of the documents are likely to be of adjectival relevance to the issues I have identified. This is especially so where reference is made to symptoms or treatments which might be of some relevance to matters the Tribunal is required to take into account, including the matters referred to in s 29(2) and (4), s 29A(2) and (4), and in s 39(2). The right to privacy, especially in respect of sensitive personal information contained in medical or psychological counselling records, is an important consideration. Mr Webeck’s motivation to protect such records from disclosure to Comcare can readily be understood as such records may contain very private and sensitive information. But an objection raised on such grounds may not be upheld if the information or the document is at least adjectivally relevant to the issues the Tribunal must decide.[12] [12] Panagiotou and TNT Australia Pty Ltd [2011] AATA 565 at [24]. In review proceedings relating to claims for compensation, it is necessary to balance competing interests: “... the need to balance the reasonableness of the burden imposed upon the recipient and the invasion of his private rights with the public interest in the due administration of justice and, in particular, that all material relevant to the issues be available to the parties to enable them to advance their respective cases. There is, in every case, a clash between these competing interests and whilst the balancing exercise to which I have referred must be carried out, it is the latter interest which is predominant.”[13] [13] Cosco Holdings Pty Ltd v Federal Commissioner of Taxation [1997] FCA 1504, Spender J quoting with approval what Clarke J said in South Pacific Hotel Services Inc v Southern Pacific Hotel Corporation Ltd [1984] 1 NSWLR 710 at 719.