Browning, Aneita; North, Ryan --- "Document production in the AAT: Workers' compensation matters" [2019] PrecedentAULA 9; (2019) 150 Precedent 34

• DOCUMENT PRODUCTION IN THE AAT
• WORKERS’ COMPENSATION MATTERS
• WORKERS’ COMPENSATION APPLICATIONS
• Inspection powers
• PARTICIPATION

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Obligations similar to those imposed on parties in traditional court proceedings are imposed on parties to an AAT application. Furthermore, ss33(1AA) and (1AB) of the Act set out the Tribunal’s specific expectation of the conduct of parties. The former subsection requires the decision-maker to ‘use his or her best endeavours to assist the Tribunal to make its decision.’ That requirement is replicated in sub-section (1AB) with respect to any other party.

MATTERS OF PRACTICE

• Relevance and real possibility In the context of document discovery Nolan suggests the critical questions that should be asked:29

CONCLUSION

DOCUMENT PRODUCTION IN THE AAT
WORKERS’ COMPENSATION MATTERS

By Aneita Browning and Ryan North

Annually the Administrative Appeals Tribunal (AAT or Tribunal)^[1] deals with an increasing number of Commonwealth workers’ compensation applications^[2] in the General Division.^[3] Ordinarily these are appeals (by the employee applicant) against the determination on behalf of a government agency (the respondent). Evidence before the Tribunal is anything originally relied upon by the original decision-maker and additional material such as medical or employment evidence. There can be a risk of delay or unnecessary burden arising from an all and sundry approach to a summons to produce documents in these matters. This article sets out the role of the parties, the Tribunal, and the summonsed person in the document production process, highlighting the need for that process to be consistent with the AAT’s statutory objectives, procedural fairness and best practice.^[4]

WORKERS’ COMPENSATION APPLICATIONS

The statutory objectives of the AAT, under the Administrative Appeals Tribunal Act 1975 (Cth) (the Act), are to be accessible, fair, just, economical, informal and quick.^[5] These objectives must be pursued during the merits review process. The review mechanisms must be proportionate to the importance and complexity of the matter^[6] and promote public trust and confidence in the decision-making of the Tribunal.^[7]

The Tribunal, in undertaking merits review of a workers’ compensation application, stands in the decision-making shoes of the relevant government agency, relying on the material available when the decision was made (provided by the respondent under s37 of the Act) and any new relevant evidence put before it by the parties. In a de novo hearing, the Tribunal determines questions of liability and entitlement by making findings of fact, applying the relevant law, and apportioning weight to the evidence to make the ‘correct or preferable decision’.^[8]

These workers’ compensation cases are often:

‘complex and a significant amount of investigation and evidence gathering, particularly in relation to medical evidence, takes place only after an application is lodged which can extend the review process’.^[9]

That extended review process is reflected in the median finalisation timeframes for these matters – 41 weeks in 2015-16 and 42 weeks in 2016-17. By contrast, the median for the General Division overall was 22 and 24 weeks respectively. The considerably longer finalisation timeframe for workers’ compensation applications has implications for the Tribunal and its statutory objectives and highlights the need for parties to work proactively to avoid unnecessary delay arising from disclosure and discovery procedures.

POWERS OF THE TRIBUNAL

The AAT is a tribunal, not a court. As D G Jarvis explains:^[10]

‘The structure of the Tribunal is based on the judicial model, in that it has power to summons witnesses and documents, to receive evidence on oath or affirmation, to direct parties to attend a conference, and to require documents to be lodged. Further the parties are entitled to be represented, and the Tribunal is required to give reasons for its decisions.’

The broad powers of the Tribunal are set out in s40 of the Act. The powers relevant to document production include:

Power to summons

The specific powers to compel a person to appear, or to appear and produce, or to simply ‘produce documents or other things’ is under s40A.^[11] In the context of workers’ compensation applications, ‘documents or other things’ most often refers to treating practitioners’ records including radiology reports, MRI images or x-rays, or records held by other government agencies.

The power to summons a person to appear before the Tribunal or to produce documents sits with the President, member or ‘officer of the Tribunal’.^[12] However, it is only the President or member who possesses the statutory authority to refuse a request to issue a summons.^[13] In practice the registry staff (as officer of the Tribunal) refer questions about the summons to a member.

Inspection powers

Once summonsed documents are produced to the Tribunal, the President, a member or an ‘authorised officer’^[14] may ‘give a party to a proceeding leave to inspect’.^[15] If there is a dispute as to granting of leave or if a party ‘applies to the officer to have the decision made by a member’ then resolution powers rest with the member.^[16]

The powers within the Act for compelling parties to produce documents are generally used to summons third parties who are not directly involved with the merits review application. Pearce observed:

‘In Re Radge and Commissioner of Taxation [2007] AATA 1317; (2007) 95 ALD 711 it was observed that it would be unusual to issue a summons to a party to the application for review to produce documents. The decision-maker’s obligation to produce was covered by s37 of the AAT Act ... In regard to the applicant, the directions power should be sufficient to ensure that all relevant material was before the Tribunal.’^[17]

PARTICIPATION

Obligations similar to those imposed on parties in traditional court proceedings are imposed on parties to an AAT application. Furthermore, ss33(1AA) and (1AB) of the Act set out the Tribunal’s specific expectation of the conduct of parties. The former subsection requires the decision-maker to ‘use his or her best endeavours to assist the Tribunal to make its decision.’ That requirement is replicated in sub-section (1AB) with respect to any other party.

There is further guidance provided in the General Practice Direction (30 June 2015), Practice Directions: Giving Documents or Things to the AAT (1 August 2018) and importantly the Guide to the Workers’ Compensation Jurisdiction (July 2015). The procedural requirements and guiding principles are not limited to parties’ conduct at hearing. They extend to pre-hearing steps, including initial conferencing, participation in alternative dispute resolution (usually conciliation), the disclosure of information to the Tribunal, and requests to issue a summons.

RESPONDENT LEADING BY EXAMPLE

The respondent has additional duties imposed on it pursuant to its role as the decision-maker as well as a statutory duty to act as a model litigant.^[18] Eugene Wheelahan’s 2016 seminar on model litigant obligations explores the development of the expectation that the Crown will act fairly and honestly in conducting litigation.^[19] He notes that the obligations arise because of the Attorney-General’s position as the First Law Officer and his or her responsibility for ‘the maintenance of proper standards in litigation’.^[20]

Wheelahan cites the judgment of Finn J in Hughes Aircraft Systems International v Airservices Australia^[21] in which his Honour identified the policies underpinning the model litigant obligations:

‘(a) of protecting the reasonable expectations of those dealing with public bodies; (b) of ensuring that the powers possessed by a public body, "whether conferred by statute or by contract", are exercised "for the public good"...; and (c) of requiring such bodies to act as “moral exemplars”: government and its agencies should lead by example...’^[22]

(citations omitted)

The model litigant obligation requires a Commonwealth agency, or its representative, to, among other things:^[23]

• ‘avoid, prevent and limit the scope of legal proceedings wherever possible’;

• keep the ‘costs of litigation to a minimum’; and

• not take ‘advantage of a claimant who lacks the resources to litigate a legitimate claim’.

There is a requirement that conduct of the respondent is consistent with those broad, overarching obligations throughout all phases of an application at the AAT.

The respondent has limited access to the sort of information available to it through the merits review application process. It does not have a general power to access or summons medical evidence in its ordinary business. It is only through the AAT proceeding that there is an opportunity to gain material (such as medical records) not already in its possession. Caution on the part of the respondent is necessary to ensure that any request for production is consistent with its duties as a model litigant. Fishing expeditions, or requesting information for an ulterior or incidental purpose, or imposing indirect burdens upon the applicant, the summonsed party and the Tribunal by requiring unnecessary/irrelevant information are inconsistent with these obligations.

Requests must be proportionate to the complexity of the matter, with a central question being whether the material will assist the Tribunal to make the correct or preferable decision.

There is further direction for the respondent provided in Guidance Note 1, produced by the Attorney-General’s Department and specific to the AAT^[24] (which complements s33(1AA)), and agency-specific obligations such as Comcare’s Service Charter. The Charter requires that it will be ‘honest, open and transparent’, ‘make timely decisions’, and ‘be accountable for [its] actions’.’^[25]

Wheelahan also notes the common justification of the ‘litigation advantage’ enjoyed by government agencies with respect to size, resources and expertise.^[26] This advantage is particularly relevant in the context of merits review conducted in the AAT where there is often remarkable disparity between the state and the individual in workers’ compensation matters with regard to capacity, capability, resourcing and access to representation.

Given the high threshold of procedural fairness imposed on the respondent, where a summons to produce may be viewed as inconsistent with the best practice (for example, an all and sundry approach where a request to produce appears to lack specificity or amounts to fishing) then the request can properly be challenged. Furthermore, there may be cause to report such an action as a potential breach of the model litigant obligation.

MATTERS OF PRACTICE

The observation of Tony Nolan QC that ‘...most cases are not decided by reference to thousands or millions of documents. In most cases, there may be a critical number of documents which are truly relevant’ applies equally to the subject matter of mega-litigation and class actions in court as it does to workers’ compensation disputes in the AAT. Although a broad relevance approach is taken, the question of relevance is critical to the issuing of any summons to produce.

Stepping stones

Once the Tribunal registry receives a request for a summons^[27] for a third party to produce, then:^[28]

• the form is reviewed by registry staff for formality before being processed; or rejected for simple defect such as an error in particulars; or may be escalated to a member for determination on a question of relevance;

• if processed without escalation, then the registry will fix the date and time for production and the summons will be returned to the requestor for service on the party to produce;

• the requestor is then responsible for effecting service;

• the party summonsed may comply and produce the documents (or things) to the Tribunal as required; or may challenge the summons, or simply fail to comply;

• if the documents are received as required, the Tribunal determines the period of inspection for the non-requesting party to view the materials; a challenge may or may not then arise as to the requestor’s access;

• if not challenged, then the requestor may access the material and copy it; this may be subject to limitations imposed by the Tribunal if challenged; and

• the original documents are held by the Tribunal until the application has been finalised.

As noted above, there are a number of possible triggers to challenge the summons. This could be on the basis of the critical question of relevance, or a request for non-disclosure (such as a claim of privilege, claim of confidentiality over sensitive or unrelated medical history, or personal information of a family member), or it may be by the party summonsed who challenges production. A challenge, made to a summons or to allowing access to the produced documents, is determined by a Tribunal member at a directions hearing. Although challenges of this nature can delay the progress of an application, it is an important part of procedural fairness. Furthermore, in some circumstances, excluding irrelevant and thereby unnecessary materials at an early stage can save time as the matter progresses, but particularly at hearing.

Relevance and real possibility
In the context of document discovery Nolan suggests the critical questions that should be asked:^[29]

‘What are the real issues in the case? Are the documents relevant? Are they subject to privilege? Are there other classes of documents which have not been produced by the client? Who makes these decisions?’

Those same questions apply to proceedings in the AAT.

The sorts of documents commonly sought in workers’ compensation matters are those that concern health and well-being, such as general practitioner, medical specialist, psychologist, psychiatrist, pain clinic, return-to-work providers, and other records. Any request for a summons to produce must be relevant to the substantive issue before the Tribunal. The registry officer should check for formality and also scrutinise the substance of the request.

A summons request that appears, prima facie, to be irrelevant, lacking in specificity, not bona fide, or a fishing expedition can properly be referred to a member for consideration. A directions hearing can be held if necessary to determine the relevance of the production sought. For example, if a psychiatrist’s records are sought for a repetitive strain injury and there is no apparent nexus between the issue and the medical report being requested, then it should be referred to a member because there is a question as to relevance.

The test applied by the AAT when considering whether a summons ought to be issued, or summonsed documents ought to be inspected, is set out in Bennett J’s judgment in Comcare v Maganga^[30] in which it was held that the threshold is only that the documents present ‘a real possibility that they may assist in the resolution of issues in the proceedings’.^[31] Parties and the Tribunal should pose that question at all stages – does the material requested present a real possibility of assisting the Tribunal to reach the correct or preferable outcome?

It is vital that registry staff apply this in the processing stage to eliminate indiscriminate requests. This advances the statutory objectives of the AAT by ensuring that irrelevant material does not go before the Tribunal, that there is no disadvantage to the applicant, and also no unnecessary burden on treating practitioners to produce or re-produce documents. For example, where a practitioner has provided all medical records to a date in time, say 20 June 2018, then a summons to produce should not be issued for all medical records to be produced. Rather it should be specific to the period from 20 June 2018. Requiring a medical practitioner to revisit records already provided is inconsistent with promoting confidence in the processes and being quick and accessible.

Further, with regard to the objectives of the AAT, given the inevitable delay caused by the issue of unnecessary or erroneous summonses, the processing of the summons request should never be viewed as merely an administrative task or a rubber stamp process. The scope of the summons should be considered by Tribunal officers and an initial assessment made as to whether each summons is relevant, specific and bona fide to ensure it satisfies the Comcare v Maganga test.

CONCLUSION

Although the AAT is not a court, and adopts informality in process and practice, that does not diminish the importance of the summons and the consideration that should be given to each request to produce documents in workers’ compensation applications. Best practice, consistent with the statutory objectives and guidelines, is particularly important in workers’ compensation matters which are complex, involve considerable medical evidence, and take considerably longer to determine and finalise. In his article ‘Reform of discovery in the 21st century’ Tony Nolan QC notes ‘[t]raditional discovery has threatened the ability of the courts to conduct litigation in a timely fashion’.^[32] Similarly, the efficiency of the AAT is threatened by delays arising from unnecessary summons requests in relation to a worker’s health and history.

In addition to the Tribunal maintaining vigilance and efficiency in the administration of summons requests, so too parties play an integral part in ensuring that there is utility for the Tribunal in any document production. Reminders for practitioners and self-represented applicants include:

• Model litigant obligations apply at all stages of the application, including during the summons process.

• A request for summons ought to be made at the earliest possible opportunity, including early engagement with the other party about proposed summons requests.

• Consideration should be given to the burden on the party being summoned to produce.

• Summons requests should be proportionate to the importance and complexity of the matter, must be bona fide, specific and the information sought relevant to the substantive issue before the Tribunal.

• Document management (pagination and indexing) is essential for voluminous documents.

Although the approach of the Tribunal is a broad relevance test, that is not an all and sundry approach. Parties should ask the critical question before requesting a summons – is it relevant to the substantive issue?

Aneita Browning is a Barrister and sessional lecturer at the University of Tasmania. She has previously held the dual appointment of District and Conference Registrar for the Administrative Appeals Tribunal. EMAIL [e-mail]. Ryan North holds LLB Hons from the University of Tasmania. EMAIL [e-mail].

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¹ The AAT is a Commonwealth statutory tribunal established under the Administrative Appeals Tribunal Act 1975 (the Act). The AAT’s jurisdiction, granted under about 450 statutes, is broad.

^[2] In 2015-16 there were 1,797 applications lodged and 1,919 in 2016-17.

^[3] The AAT is structured into different Divisions.

^[4] Although the focus here is on workers’ compensation matters, the content applies equally to other matters such as Veterans’ Affairs and NDIS applications.

^[5] The Act, ss2A(a) and (b).

^[6] Ibid, 2A(c).

^[7] Ibid, 2A(d).

^[8] Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, 591 per Bowen CJ and Deane J.

^[9] AAT Annual Report 2016-17, 24.

^[10] D G Jarvis, ‘Procedural fairness as it applies in the Administrative Appeals Tribunal’, ALJ, Vol. 81, 2007, 465 at 466.

^[11] The power to summon a person pursuant to s40A of the Act does not apply to proceedings in the Social Security and Child Support Division of the AAT.

^[12] The Act, s40A(1). See Interpretation: officer of the Tribunal means the Registrar or a person appointed by the Registrar as an officer of the Tribunal under s24PA.

^[13] Ibid, s40A(2).

^[14] Ibid, s40B(1). See Interpretation: authorised officer means an officer of the Tribunal appointed by the President under s59B for certain powers.

^[15] Ibid, s40B.

^[16] Ibid, s40B(2).

^[17] D Pearce, Administrative Appeals Tribunal, 4th ed, Lexis Nexis Butterworths, 2015, 227.

^[18] See Appendix B to the Legal Services Directions 2017 (Cth).

^[19] E Wheelahan, Model Litigant Obligations: What are they and how are they enforced?, Federal Court Ethics Seminar Series, 15 March 2016. Although that article refers to the policy as annexed to the Legal Services Direction 2005, it is in substance the same as the policy that is annexed to the 2017 Direction.

^[20] At [11].

^[21] [1997] FCA 558.

^[22] See Wheelehan, above note 19.

^[23] Legal Services Directions 2017 (Cth), Appendix B –The Commonwealth’s obligation to act as a model litigant.

^[24] Guidance Note 1, issued by the Office of Legal Services Coordination of the Attorney-General’s Department, The Administrative Appeals Tribunal Act 1975: Obligation to assist the Tribunal, <https://www.ag.gov.au/LegalSystem/LegalServicesCoordination/Documents/Guidance-note-1-administrative-appeals-tribunal-act-1975-obligation-to-assist-the-tribunal.pdf>.

^[25] Comcare, Service Charter, <https://www.comcare.gov.au/about_us/service_charter>.

^[26] See Wheelehan, above note 19.

^[27] This is usually done online. See, for example: <http://www.aat.gov.au/AAT/media/AAT/AAT-Summons-to-Produce-Documents.pdf> .

^[28] This is a broad overview of the steps only, and further information is available from the AAT as to consequences; for example, in failing to comply or where a summonsed party wishes to challenge.

^[29] T Nolan QC, ‘Civil and criminal procedure’, Precedent, Issue 142, September/October 2017, 21.

^[30] [2008] FCA 285.

^[31] Ibid, [37]. See Steele and Comcare (Compensation) [2018] AATA 481; ZFCC and Comcare [2018] AATA 1358; Rutherford and Comcare (Compensation) [2018] AATA 3628.

^[32] See Nolan, above note 29, 20-25.