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 have been marked with pencil, I object to the Respondent having access to inspect.
These pencil marked documents contain personal medical records and confidential health information not relevant to the compensable condition.
On 15 August 2023, the Tribunal issued an order granting Comcare leave to inspect the Atherfield documents not covered by Mr Webeck’s objection and made the following directions:
2.On or before 21 August 2023, the Respondent must inform the Tribunal and the Applicant whether it presses for access to the documents produced in response to summons issued on 27 July 2023 by Atherfield Medical and Skin Cancer Clinic which the Applicant objects to the Respondent inspecting and, if so, to provide supporting written submissions.
3.Should the Respondent press for access to the documents under objection, on or before 28 August 2023, the Applicant must give the Tribunal and the Respondent written submissions in reply or inform the Tribunal no further submissions will be made.
On 21 August 2023, Comcare filed written submissions, pressing for access to the balance of the Atherfield documents.
On 25 August 2023, Mr Webeck filed submissions to assist the Tribunal in narrowing the issues, but he did not expand upon his previous objections or address Comcare’s submissions in respect of the balance of the Atherfield documents.
This decision is in respect of Mr Webeck’s objection to Comcare being granted leave to inspect the balance of the Atherfield documents, alone.
Principles
The principles to be applied when dealing with objections of the kind Mr Webeck has made are well established. The application of principle requires a clear understanding of the statutory functions and relevant powers of the Tribunal under the Administrative Appeals Tribunal Act 1975 (AAT Act) and the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) when determining Mr Webeck’s applications for review.
The statutory features of Tribunal proceedings and the powers conferred upon the Tribunal by the legislature include –
(a)the obligation to ensure that each party has a reasonable opportunity to present their case and to inspect and make submissions about documents before the Tribunal (s 39);
(b)the requirement to act on evidence and to give reasons for its decision (s 34E, s 40 and s 43); and
(c)the power to summons persons to give evidence or to produce documents (s 40A).
Under s 64 of the SRC Act, the Tribunal has jurisdiction to review a reconsideration decision. By operation of s 43(1) of the AAT Act, for the purposes of review, the Tribunal is able to exercise all of the powers conferred on the person who made the reconsideration decision. Standing in those shoes, the Tribunal has power to make a fresh decision, addressing the same statutory questions the person who made the reconsideration decision was bound to decide, exercising all of the powers and being subject to the same constraints that applied to the person who made the decision under review.[1]
[1] Frugtniet v Australian Securities and Investments Commission [2019] HCA 16 per Keifel CJ, Nettle and Keane JJ at [14]-[15] and Per Bell, Gageler, Gordon And Edelman JJ at [51].
While the Tribunal is not bound by the rules of evidence (s 33(1)(c)), it must make findings in a logically probative manner on the relevant materials placed before it.
Furthermore, under s 39(1) of the AAT Act, the Tribunal must ensure that each party has a reasonable opportunity to present their case, including inspecting and making submissions about relevant documents. Even though the Tribunal does not have a formal mechanism or procedure for discovery, each party is entitled to prepare their case on the basis of an evidentiary mosaic constructed from materials of relevance to which access has been granted for the purposes of the proceedings. There is no proper basis to narrow the entitlement to materials of direct or substantive relevance. While that threshold may be applicable in the hearing of an application, when considering the admission of evidence, a broader threshold applies to the discovery of relevant materials in the preparation of a case. The applicable threshold is one of apparent or adjectival relevance.[2]
[2] BrisConnections Finance Pty Ltd (Receiver and Manager Appointed) v Arup Pty Ltd [2016] FCA 906 at [25].
It is in this context the Tribunal’s discretionary power in s 40B to grant a party leave to inspect documents produced in compliance with a summons must be considered. These powers operate in the context of a proceeding and, where leave is granted for a party to inspect documents produced under summons, the documents cannot be used for any other purpose outside the proceedings.[3] This is a substantive rule of law which arises from disclosure under compulsion,[4] such that –
Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise to disclose documents or information, the party obtaining the disclosure cannot, without leave of the court, use it for any purpose other than that for which it is given unless it is received into evidence.[5]
[3] AAT President’s General Practice Direction, 28 February 2019, Part 5.
[4] Hearne v Street [2008] HCA 36, per Hayne, Heydon and Crennan JJ at [105]-[109].
[5] Ibid, at [96].
When determining if leave should be granted to inspect documents produced under a Tribunal summons, it is not necessary to establish the documents have substantial or direct relevance to the issues for determination in the proceedings.[6] Nonetheless, a legitimate forensic purpose must exist and, at a minimum, the documents must have apparent or adjectival relevance.[7]
[6] Comcare v Maganga [2008] FCA 285 at [36].
[7] Jack Brabham Engines Pty Ltd v Beare [2010] FCA 35 at [7]-[9].
When deciding if the threshold of apparent relevance is met, it is relevant to consider:
(a)whether there is a real possibility that the documents could reasonably be expected to throw light on some of the issues in the principal proceedings[8] and may assist in the resolution of the issues in the proceedings;[9] and
(b)whether there is reason to suppose that the documents will be capable of being used as evidence or for a legitimate forensic purpose in cross-examination,[10] such that, when viewed realistically, the documents sought have a bearing on an issue which is not unreal, fanciful or speculative, or that the material sought is reasonably likely to add in some way to the relevant evidence in the case, or that it be “on the cards” that the documents sought will materially assist the party at whose request the summons has been issued.[11]
[8] Trade Practices Commission v Arnotts Pty Ltd & Ors [1989] FCA 248 at [41].
[9] Comcare v Maganga [2008] FCA 285 at [37].
[10] Hunt v Wark (1985) 40 SASR 489 per King CJ at [493].
[11] Wong v Sklavos [2014] FCAFC 120 at [12].
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.
An employee or an ex-employee claiming compensation under the SRC Act should expect the entity responsible for deciding the claim, presently the Tribunal, to do so on the basis of all relevant information, including medical records. It is for this reason, weighing all relevant considerations, including the claimant’s right to privacy, a cautious approach is justified when deciding an objection in respect of medical records on grounds of relevance.[14]
[14] O’Sullivan and P&O Maritime Services Pty Ltd [2019] AATA 2966 at [32]-[33].
On balance, weighing the competing considerations of relevance and Mr Webeck’s privacy, I am not persuaded the objections Mr Webeck has raised against Comcare inspecting the balance of the Atherfield documents are made out. Mr Webeck’s interest in maintaining privacy over his medical records, and the related public interest in ensuring a person’s privacy is not invaded without proper justification, are outweighed by the competing public interest in ensuring the review of administrative decisions proceeds on the basis of all relevant materials in a manner which is procedurally fair and just.
As I have said, the Tribunal is obliged to ensure each party is given a reasonable opportunity to prepare and present their case. Necessarily, in a case of this kind, the parties are entitled to inspect materials of apparent or adjectival relevance in order to construct a mosaic of relevant materials on which the particular issues in the proceedings are to be assessed and determined. This obligation, and the right of each party to thoroughly prepare their case, reflects a powerful public interest in the fair and just review of administrative decisions in accordance with the objectives expressed in s 2A of the AAT Act:
In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that:
(a) is accessible; and
(b) is fair, just, economical, informal and quick; and
(c) is proportionate to the importance and complexity of the matter; and
(d) promotes public trust and confidence in the decision‑making of the Tribunal.
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.

I certify that the preceding 28 (twenty-eight) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member.

.....................[sgd]............................
Associate
Dated: 12 September 2023

Applicant:

Self-Represented

Solicitor for Respondent:

Mr Ben Mason, Moray & Agnew Lawyers

Applicant:	Self-Represented
Solicitor for Respondent:	Mr Ben Mason, Moray & Agnew Lawyers