Sommers and Telstra Corporation Ltd

[2006] AATA 758

Administrative

Appeals

Tribunal

 

DETERMINATION AND REASONS FOR DETERMINATION [2006] AATA 758

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2005/818

GENERAL ADMINISTRATIVE DIVISION		)
Re		HEATHER SOMMERS

Applicant

And TELSTRA CORPORATION LTD

Respondent

DETERMINATION

Tribunal Senior Member B J McCabe

Date6 September 2006

PlaceBrisbane

WHEREAS the respondent has asked the applicant to provide medical documents pursuant to s 58 of the Safety Rehabilitation and Compensation Act 1988

THE TRIBUNAL DETERMINES THAT:

the documents sought by the respondent are relevant within the meaning of s 58.

...........[Sgd]............

BJ McCabe

SENIOR MEMBER

CATCHWORDS

PRACTICE AND PROCEDURE – discovery – respondent seeking access to medical practitioners of the applicant – medical records of the applicant dating back 15 years – documents are relevant to issues before the Tribunal

Safety Rehabilitation and Compensation Act 1988 s 58

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

Trade Practices Commission v Arnotts (1989) 88 ALR 90

REASONS FOR DETERMINATION

6 September 2006 Senior Member B J McCabe

introduction

1.      Ms Heather Sommers claims to suffer from post traumatic stress disorder (PTSD) as a consequence of incidents at her work on 28 and 30 September 2004. Her employer, Telstra Corporation Ltd, denies it is liable. Telstra has indicated through its lawyers that it is not satisfied the applicant’s psychiatric condition arose out of her work. The respondent suspects the applicant has a history of psychiatric problems that might explain her current condition. To that end, Telstra has asked the applicant to provide details of:

(i) all of the applicant’s pre- and post-incident treating medical practitioners (although the respondent subsequently limited the request to details of the medical practitioners dating back 15 years prior to the incident); and
(ii) the applicant’s employment history.

2.      The applicant has agreed to provide the details of her previous employers. She has also allowed the respondent to access medical records going back five years before the incidents but has declined to facilitate access to older documents. Mr Hodgson, for the applicant, says Telstra is fishing. He says disclosure of the older material sought by the respondent would be unreasonable: it would lead to a gross and unnecessary invasion of the applicant’s privacy without a reasonable prospect of forensic benefit.

3.      The parties were invited to make written submissions in relation to this issue. They also made oral submissions at a telephone directions hearing held on 25 August 2006. The applicant has asked that I give written reasons for whatever ruling I make in relation to her obligation to make disclosure.

the relevant legislation

4.      Telstra may request that an applicant provide information that is relevant to the applicant’s claim: s 58(1) of the Safety Rehabilitation and Compensation Act 1988 (the SRCA). If the applicant fails to provide relevant information in accordance with a request under s 58(1), Telstra is not required to deal with the claim. The applicant’s failure to comply with the notice will however be excused (so that the authority remains under an obligation to deal with the claim) if the applicant has a reasonable excuse: s 58(3).

5.      The key word in s 58(1) is relevant. The respondent says the applicant’s medical records are relevant because she has made a claim in respect of a psychiatric condition, and her older medical records may contain information suggesting the applicant suffered from that (or another) condition prior to the incidents in the workplace. Ms Fitzpatrick, for the respondent, pointed out in her written submissions (at paragraph 4.12) that the notes which have already been disclosed refer to the applicant suffering from a “depressive illness” in November 1996. The records also refer to the applicant suffering from “fatigue and moodiness” after 1993, a car accident in July 1999 and a difficult marriage separation in 1995. Ms Fitzpatrick says these references justify a further and more extensive request for information.

6.      Mr Hodgson pointed out the reference to a motor vehicle accident did not of itself suggest the applicant suffered any psychiatric symptoms. The same criticism was made of the reference to the marriage separation. He said the reference to fatigue and moodiness was so general as to be meaningless, and in any case was almost certainly connected with a surgical procedure that the applicant had undergone at the relevant time. He argued the reference to a depressive illness needed to be seen in context: the entry was made by the applicant’s general practitioner who noted a short time later that the applicant was not exhibiting any signs of depression. Mr Hodgson denied the matters raised by the respondent provided a basis for asserting the records were relevant. He repeated his claim that the respondent was on a fishing expedition.

7.      The parties agreed the reasoning of Spender J in Cosco Holdings Pty Ltd v Commissioner of Taxation (1997) 37 ATR 432 was applicable to requests under s 58. Cosco dealt with the Tribunal’s power to obtain information pursuant to a summons. His Honour discussed the concept of relevance at some length, and I accept his reasoning is applicable in relation to requests for information under s 58 SRCA where relevance is an issue.

8.      Spender J cited with approval the decision of Beaumont J in Trade Practices Commission v Arnotts (1989) 88 ALR 90. Beaumont J said (at 103) one must look to whether the material sought has “apparent relevance” in the sense that the information “could possibly throw light on the issues in the…case”. However Spender J cautioned that the use of the word possibly in Arnotts was “not used in any speculative sense”: Cosco at 439. His Honour warned (at 441) that a request for documents which is “essentially speculative in nature” would amount to a fishing expedition.

9.      I do not accept the request for information in this case is speculative. The notes which have already been provided disclose evidence that hints at a history of psychiatric symptoms – especially the reference to a depressive illness in 1996. Mr Hodgson may ultimately be proved to be correct in his contention that the records disclose nothing of forensic value, but I think the respondent is entitled to review the records for itself and form a view in light of what it already knows might be in the documents.

10.     The respondent is not merely proposing to trawl the records in the hope that something useful will crop up. It has been given an indication the records contain more useful information of a particular kind that will shed light on the claim. I do not see any basis for resisting the request on the grounds of relevance. In the absence of other evidence suggesting the applicant has a reasonable excuse for declining to provide the information, the respondent is entitled to refuse to deal with the claim any further: s 58(3) SRCA.

11. I raised the possibility of making an order under s 35 of the Administrative Appeals Tribunal Act 1975 in relation to any of the applicant’s medical records if the circumstances justified doing so. I am happy to entertain submissions on that point in due course.

I certify that the 11 preceding paragraphs are a true copy of the reasons for the determination herein of Senior Member B J McCabe

Signed:         .....................................................................................
  Associate      Adam Ryan

Date of Hearing  6 June 2006 & 25 August 2006
Date of Determination               6 September 2006.
The applicant was represented by Mr Hodgson, solicitor.

The respondent was represented by Ms Fitzpatrick, solicitor.