Woodhouse and Comcare

[2007] AATA 1920

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1920

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/3296

GENERAL ADMINISTRATIVE DIVISION		)
Re		JACQUELINE WOODHOUSE

Applicant

And COMCARE

Respondent

DECISION

Tribunal Deputy President P E Hack SC

Date2 November 2007  

PlaceBrisbane

Decision The Tribunal refuses to make the direction sought by the respondent.  

..............................................

Deputy President

CATCHWORDS

INTERLOCUTORY APPLICATION – direction sought by respondent for access to Medicare claims history – issue of worsening of mental state during employment- whether history required to establish condition prior to commencing employment – whether history needed to produce summonses to medical practitioners – whether history was unreasonable disclosure of personal information – whether Tribunal has power to make direction – respondent on a fishing expedition – Medicare history has no relevance – direction refused.

Administrative Appeals Tribunal Act 1975 (Cth). – s33(2A)(a)

Re Seghini and Telstra Corporation Limited (1997) 44 ALD 711

Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250

Cosco Holdings Pty Ltd v Commissioner of Taxation (1997) 37 ATR 432.

REASONS FOR DECISION

2 November 2007   Deputy President P E Hack SC    

1.This is an application by Comcare, the respondent in the underlying application. Comcare seeks a direction by the Tribunal that the applicant, Ms Jacqueline Woodhouse, provide to Comcare a signed authority to access a complete copy of Ms Woodhouse’s Medicare claims history for the period 1 January 1993 to 26 October 2007.

2.Comcare says that a direction in those terms is authorised by s 33(2A)(a) of the Administrative Appeals Tribunal Act 1975 (Cth.) It does not rely upon s 58 of the Safety, Rehabilitation and Compensation Act 1988 (Cth.)

3.The background to the matter is not controversial. Ms Woodhouse is a professional violinist. She was employed by the Queensland Philharmonic Orchestra from 1994 to 2001 and then by the Queensland Orchestra when that entity was formed after the amalgamation of the Queensland Philharmonic Orchestra and the Queensland Symphony Orchestra. During September 2003 Ms Woodhouse suffered what is described as a “panic attack” whilst performing.

4.On 18 February 2004 Ms Woodhouse lodged a claim for rehabilitation and compensation with Comcare for a condition she described as “depressive illness with periods of anxiety”. In June 2004 Comcare accepted Ms Woodhouse’s claim for “aggravation of major depressive disorder, recurrent episode” and “aggravation of anxiety state”. In March 2006 Ms Woodhouse made a claim for permanent impairment. In October 2006 Comcare denied that it was liable to pay compensation for permanent impairment and non-economic loss for a condition it described as “aggravation of major depressive disorder, recurrent episode and aggravation of anxiety state”. That determination was affirmed on reconsideration, hence the proceedings in this Tribunal.

5.Whilst the parties have not yet lodged Statements of Facts, Issues and Contentions, it is apparent that the issue for the Tribunal to determine is whether, and if so the extent to which, Ms Woodhouse’s mental state has worsened during her employment since 2001. Thus it is relevant to establish, by medical evidence, her condition prior to her commencing employment with the Queensland Philharmonic Orchestra. It will also be relevant to examine, or at least have medical witnesses examine, the state of her mental health in the years prior to 2001.

6.The direction that Comcare seeks is one that would allow the disclosure of the entirety of Ms Woodhouse’s Medicare claims history from 1 January 1993 to date to Comcare and its lawyers. The information that would be provided, according to the Authority Form published by the Health Insurance Commission, “may include” the date of service, the name and address of the treating practitioner, the Medicare item number, the description of the item, the charge, the payment method, the date of processing and the date of lodgement of the Medicare claim. Ms McCowen, the solicitor for Comcare, accepted that this information would not, of itself, assist Comcare or the Tribunal. She accepted that Comcare sought this information in order to determine whether the records of the medical practitioners as disclosed by the list (or some of them) should be summonsed so that those advising Comcare might examine those records to see whether anything of relevance was contained in them.

7.Mr Hodgson, the solicitor for Ms Woodhouse, opposed the making of the direction on the footing that the history sought was not shown to be relevant and would result in the unreasonable disclosure of personal information.

8.There are no particular rules of procedure that bind the Tribunal. Matters of procedure are generally within the discretion of the Tribunal. There is power to give directions in connection with the hearing of a proceeding. By virtue of s 33(2A)(a) of the Administrative Appeals Tribunal Act 1975 (Cth.) a direction may,

“require any person who is a party to the proceedings to provide further information in relation to the proceedings.”         

9.Comcare submits that this power is sufficiently wide to permit the making of the direction sought here. While no example of its use for such a purpose was provided to me, Comcare relied upon the remarks of Deputy President Barnett in Re Seghini and Telstra Corporation Limited[1] that:

“There may be cases where it would be appropriate for the Tribunal to direct an applicant to take some simple reasonable step to gain possession of documents under the applicant’s control and to provide those documents to the Tribunal.”

[1] (1997) 44 ALD 711 at 712 [6].

10.I propose to assume, without deciding, that the power in s 33(2A)(a) is sufficiently wide to enable the making of a direction of the type sought here. I do so because, in my view, even if there is such a power, it ought not be exercised in the present case.

11.There can be no doubt that the power to make the direction sought is discretionary. Relevant to the exercise of that discretion, at least, are two matters – the extent to which the direction would involve an intrusion into Ms Woodhouse’s medical history, and the benefit that might be expected to be gained from authorising that intrusion.

12.As far as the first aspect is concerned, it is apparent that provision of the information sought could potentially involve disclosure of matters entirely unrelated to the matters in issue in these proceedings. As it seems to me, a medical history is quintessentially an intimate and personal record. The provision of it for the present purpose would be a gross intrusion into Ms Woodhouse’s personal affairs and would amount to a disclosure of matters that she, quite reasonably, does not wish to disclose.

13.I accept that it is relevant to have regard to Ms Woodhouse’s medical history so far as it touches upon the issue of what I shall loosely describe as her mental state. I accept as well that there is material that suggests that Ms Woodhouse has what Dr Chalk, a psychiatrist, describes as “a long history of mixed anxiety and depressive illness predating her orchestral employment…” However, Comcare has available to it a report from Mr Woodhouse’s general practitioner, Dr Bryan, who was first consulted by Ms Woodhouse for a stress condition in July 1993. There seems to be no reason why Comcare could not obtain copies of Dr Bryan’s clinical notes and patient records by summons.

14.The direction sought is justified by Comcare on the basis that the records sought “dating from around the applicant’s first reported stress or anxiety attack on 12 July 1993 may indicate further avenues for the Respondent to investigate the veracity of the current application.” In argument the suggestion was put that it might be the case that Ms Woodhouse had consulted another general practitioner and that only the provision of her medical history would enable that matter to be determined. The argument brought to mind the frequently quoted passage of Owen J in Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd[2]:

“A `fishing expedition', in the sense in which the phrase has been used in the law, means, as I understand it, that a person who has no evidence that fish of a particular kind are in a pool desires to be at liberty to drag it for the purpose of finding out whether there are any there or not.”

[2] (1952) 72 WN (NSW) 250 at 254.

15.In the absence of evidence that Ms Woodhouse had consulted another general practitioner, it seems to me that Comcare is engaged in a “fishing expedition”. It might even be thought that it wants the Tribunal to provide it with the net. The argument advanced by Comcare is entirely speculative in nature. I see no reason why the principles that apply to the issue of summonses by the Tribunal, and helpfully discussed by Spender J in Cosco Holdings Pty Ltd v Commissioner of Taxation[3], ought not be applied to a direction antecedent to the issue of summonses. Moreover, I am not satisfied that the material sought by the direction has apparent relevance. 

[3]           (1997) 37 ATR 432.

16.In these circumstances I refuse to make the direction sought. That is not to say that Comcare may not, renew its application later on more compelling material. On the material before me I am not satisfied that a direction ought be made. I would refuse to make the direction sought.

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC

Signed:         .....................................................................................
  Eleanor O’Gorman, Associate

Date of Directions Hearing       26 October 2007
Date of Decision  2 November 2007          
Solicitor for the Applicant          Maurice Blackburn Lawyers

Solicitor for the Respondent     Australian Government Solicitor