September 2024 Newsletter and Cases Update

INTRODUCTION

Welcome to our latest Newsletter and Case Update for 2024, where we aim to keep you up to date with all that is happening in the law affecting workplaces, and with what we have been doing here at KJK Legal.

KJK Legal firm update and news

Self-Insurers of South Australia August forum

On Friday 16 August 2024, KJK Legal were proud sponsors of the SISA August forum.

It was a great turn out and attendees were fortunate enough to hear from medical expert Dr Dilip Kapur, on Complex Regional Pain Syndrome (CRPS).

Dr Kapur explained the terminology to us and described the differences between CRPS 1 and CRPS 2: CRPS 1 arising from a limb injury without a nerve injury, and CRPS 2 arising from a nerve injury and a limb is affected.

Surprisingly, he stressed that Chronic Regional Pain Syndrome was not a diagnosis and described the range of typical features of which it refers:

• Pain persisting beyond the expected timeframe following and injury and extending beyond the site;
• Oedema;
• Vascular instability;
• Regional overactivity of the sympathetic nervous system;
• Trophic changes in skin, nails, hair, and bone.

He also provided some insight as to the proposed changes for the impairment assessment of CRPS in the Impairment Assessment Guidelines.

Chrissy Psevdos led the subsequent session on permanent impairment assessments, and it was an informative and interactive session discussing how to best prepare your referrals in order to achieve the most appropriate and accurate outcomes.

It was great to see so many of you in attendance and we genuinely hope that you not only enjoyed the session but there was benefit for you in the content.

If you were unable to attend the forum and would like a copy of Dr Kapur’s presentation slides, or Chrissy’s presentation, please reach out to Chrissy at [email protected] and she will gladly provide you with copies.

SISA Closing the Loop 2024

On Thursday, 19 September 2024 the industry of Self Insurers and those dedicated professionals, practitioners and organisations that support self-insurers in delivering superior workplace health and safety, return to work, rehabilitation and well-being in their workplaces came together at the Morphettville Racecourse for this year’s conference.

The KJK Legal team were proud sponsors of the seminar, and it was great to see so many of you there.

The Conference content this year took participants on a journey that started with Rory Sloane who spoke about his career and the circumstances behind its somewhat premature end.

Taryn Brumfitt spoke about empowerment in action – how self-belief, grit and persistence trump luck every time. As a body image activist, she gave examples of how to apply mindset of empowerment to strengthen leadership and resilience.

Professor Iain McGregor, Professor in Psychopharmacology, spoke about the controversies associated with the use of medicinal cannabis for employers and the insurance industry and focused on strategies to overcome some of the issues affecting the medical profession and the workplace.

The standout for us was Dr Mark van Rijmenam who stepped participants into the future and showed us the impact of artificial intelligence and workplace health and safety. A very interesting presentation about how AI can revolutionise safety measures, risk management and accident prevention in the workplace while considering the ethical challenges as well.

Both Sides of the Fence – Early bird registration closes this week

Friday, 22 November 2024 at Adelaide Oval

KJK Legal are proud to continue their ongoing sponsorship of the Both Sides of the Fence Seminar 2024 presented by The Society of Labour Lawyers (SA).  Not only is our team excited to be a part of what is sure to be another beneficial day for participants, we are looking forward to catching up with as many of you as we can at the Adelaide Oval.

Early bird registration closes this Friday, 27 September 2024. Take advantage of the discounted rate by registering here, and where you can also view the Seminar Program.

Save the Date – KJK Legal’s next seminar

Wednesday, 26 February 2025 is the date set for our next in-person seminar, again being held at the Majestic Roof Garden Hotel.  We’re busy working behind the scenes putting together the topics of interest and finalising our guest speaker.  Further details will be announced in the new year.  In the meantime, remember to flag this date in your calendar!

Recent decisions from the South Australian Employment Tribunal

Wiseman v Women’s and Children’s Health Network [2024] SAET 41

Topic: The compensability of pericarditis and pulmonary emboli as a result of COVID-19 vaccine

Commentator: Chrissy Psevdos

Background

This matter concerns a claim for compensation made by the applicant for injuries to her heart and lungs namely, pericarditis and pulmonary emboli (the injuries) which she claimed were caused by having received a dose of Pfizer mRNA COVID-19 vaccine (the vaccine) that she was required to have by her employer, on 28 September 2021.  This was her second vaccine.

The applicant was advised against having the third vaccine as she had experienced symptoms from the second vaccine.  She consulted a cardiologist and after testing was complete in mid-April 2022 she was diagnosed with “multiple pulmonary emboli on VQ Scan and probable pericarditis resolving on cardiac MRI and echocardiogram”.  The cardiologist considered that the injuries were caused by the vaccine given that her symptoms began soon after.

The respondent did not accept that evidence and rejected the claim on the basis that the symptoms did not manifest until several months after the second dose of the vaccine was administered.  They did however accept that the applicant did suffer from pericarditis and pulmonary embolism.

Held

Despite there being some issues with the applicant’s evidence in relation to the onset of her symptoms, the trial Judge found that pericarditis and pulmonary emboli were injuries within the meaning of the Return to Work Act 2014 (RTW Act) and that the applicant had been incapacitated for work as a result of the injuries at some time between the latter part of 2021 and April 2022.

The trial Judge found that the applicant’s incapacity for work due to the pericarditis had ceased by 28 March 2023 and incapacity for work due to the pulmonary emboli had ceased by 5 December 2022.  Evidence had been given about the cause of the applicant’s deconditioning which was found to have been directly related to her pericarditis and considered that her incapacity for work continued to the day of his judgment.  This did however, take the applicant’s entitlements outside of the 104 weeks in accordance with section 39(3) of the RTW Act and as such the trial Judge determined that the applicant’s entitlement to weekly payments was for a period of 104 weeks.

Key Takeaway

COVID-19 vaccine side effects appear to be considered by the South Australian Employment Tribunal to be compensable injuries where an employer mandated the requirement for its employees to be vaccinated.  It is important however, to ensure medical evidence linking the side effects to the vaccine be properly investigated.

We would expect however, that we are coming to the tail end of these claims at this time and as such be vigilant about new claims when considering compensability.

A link to the full text of the case can be found here.

Attrill v Department for Education [2024] SAET 50

Topic: Application for Directions seeking an order sought pursuant to Rule 213 of the South Australian Employment Tribunal Rules 2022 requiring a claimant to submit to a medical examination

Commentator: Chrissy Psevdos

Background

The applicant was employed as an Attendant/Engagement Officer with the respondent and has an accepted claim for a psychiatric injury sustained in the course of her employment.

Associate Professor Khalid had examined and assessed the applicant as part of the applicant’s claim and the applicant’s weekly payments were discontinued from 24 March 2020 pursuant to section 48(2)(h) of the Return to Work Act 2014 (RTW Act).

A GEPIC assessment was provided by Dr Nicholas Ford on 19 August 2021 and determined that the applicant had a 47.5% whole person impairment (WPI) and then deducted 5% on account of impairment not related to the subject work injury.  There had been an earlier psychological injury in September 2015.

Dr Kutlaca was asked to peer review the assessment of Dr Ford, and it was his opinion that the applicant likely had a greater impairment relating to the previous work injury and sought information which included full details of the applicant’s medical history inclusive of prescription and referrals in order to determine the estimation of the pre-existing impairment.

The applicant made an application to be taken as a seriously injured worker pursuant to section 21(3) of the RTW Act following Dr Ford’s opinion.  The respondent determined that the applicant was not a seriously injured worker based on the opinion of Dr Kutlaca which prompted a dispute at the SAET.

Consequently, the applicant also made a claim for physical injuries having arisen as a result of the “arts and crafts, jewellery” making that the applicant was participating in, in order to attempt to compensate from and stop her brain from ruminating.

The respondent wished for the applicant to be examined by Drs Kutlaca and Dr Champion.  The examination with Dr Champion was however abandoned during oral argument.

Issue

The respondent sought a stay of the proceedings until such time that the applicant attended a face-to-face appointment with Dr Kutlaca as opposed to seeking an opinion on the papers noting that examination was critical to forming an opinion as to the level of function prior to the injury in question.

The applicant argued that the order to stay the proceeding should not be granted on the basis that it was for the respondent to establish that intervention was necessary, it bearing the onus to establish same.  She also argued that it had been some three years following the section 22 assessment and the respondent had not sought for her to be examined in person by Dr Kutlaca until recently.

Held

Deputy President Judge Kelly denied the application on the basis that she was not satisfied that the examination in person was necessary for him to provide an opinion as to whether Dr Ford’s estimation of deduction was in error once he had all of the information he had sought previously.

Key Takeaways

In recent times the presiding members of the SAET have been disinclined to make orders for claimants to attend medical examinations.  A key consideration in doing so is whether or not the Tribunal was being asked to facilitate a “fishing expedition” in allowing respondents to adduce evidence from witnesses of their choosing on relevant matters.

Her Honour noted the objects of the South Australian Employment Tribunal Act 2014 was to reach a just, quick and cost-effective resolution of the real issues in proceedings.  It is therefore crucial that the purpose of any examination considered under Rule 213 be closely connected to the issues in dispute, rather than some broader perspective.

A link to the full text of the case can be found here.

Brown v Return to Work Corporation of South Australia & Allstaff Instrument & Electrical Division Pty Ltd [2024] SAET 51

Topic: Compensability and journey injury provisions

Commentator: Suzana Jovanovic

Background

The worker in this case was working for a host employer, on hire from the other party.  He had been working at the Olympic Dam Airport expansion on a fly-in, fly-out (FIFO) basis.  When he was working at Olympic Dam, the worker resided in accommodation near Roxby Downs which he assumed was paid for by the host employer or his employer.

The worker was in Whyalla for 2 days of training that was required as part of his employment.  On 27 August 2020, the worker was driving from Whyalla to Roxby Downs/Olympic Dam in a vehicle and wearing uniform provided by the host employer when he suffered a stroke.  The worker was also being paid for travel.  The training and accommodation was arranged and paid for as part of his employment.

On a separate, yet related note, the worker alleged that three weeks before the stroke, he was struck in the head and neck by the bucket of a moving excavator.  The person allegedly operating the excavator denied that the incident occurred at all.

Issues

• Whether the stroke arose from the worker’s employment?
• Was the journey from Whyalla undertaken in the course of the worker carrying out the duties of his employment?
• Was the worker’s journey from Whyalla between his place of residence and place of employment?
• Was the worker’s stroke an “accident” (i.e. did it occur due to happenstance) and is there a real and substantial connection between the worker’s employment and his accident?
• Whether subsections 7(8)-7(10) of the RTW Act 2014 (SA) are a code for dealing with all journey injury claims, or whether the worker must also satisfy section 7(2) that employment must be a significant contributing cause?

Held

The worker was unable to prove that the incident with the excavator occurred and there was no reporting of the said incident.

However, turning to the journey provisions, the worker was found to be travelling to his place of employment.  The injury was found to be compensable under section 7(8)(a) because the journey from Whyalla was being undertaken in the course of him carrying out his work duties.  The judge found that subsections 7(8)-7(10) are a code and therefore when it comes to a journey injury, one does not need to consider whether employment was a significant contributing cause per section 7(2).  If this was a requirement, then the worker would not have succeeded because the witness’ evidence was preferred.

A link to the full text of the case can be found here.

Luke v Department of Primary Industries and Regions (No 2) [2024] SAET 53

Topic: IMA Referral

Commentator: Suzana Jovanovic

Background

In an earlier decision, the Tribunal held that there should be a referral to an Independent Medical Adviser (IMA).  The parties had agreed on who the IMA should be but were unable to agree as to the content of the referral and the documents that should be considered by the IMA.

The worker’s position was:

• that the Tribunal should reconsider its earlier decision about referring the matter to an IMA and instead ask the Permanent Impairment Assessor to provide a revised report regarding the cervical spine without radiculopathy;
• the only questions to be answered by the IMA pertain to assessment of permanent impairment; and
• only documents directly relevant to the assessment of permanent impairment in accordance with the IAGs should be provided to the IMA.

The Department argued that additional documents should be provided and additional questions should be answered by the IMA.  Such questions pertain to the IMA’s diagnoses of injuries arising from the work incident (if any), whether the worker continues to suffer from bilateral nerve neuropathy in addition to undertaking an assessment of permanent impairment for each work related injury and addressing pre-existing degenerative changes and injuries/conditions.  The Department was concerned about the way the worker presented to doctors and the Tribunal in comparison to some surveillance footage.  Amongst other documents, the Department therefore argued that the surveillance footage should be provided to the IMA.

Issues

Leaving aside the issues pertaining to costs, the judge was required to address what questions and documents should be put to the IMA.

Held

The judge held that where the Tribunal had not made a finding regarding diagnosis, then it would be assisted by the IMA in addressing the diagnosis.  Furthermore, it was found that the IMA should be provided with details of the finding in the earlier decision regarding the inconsistencies provided by the worker to some doctors and what was demonstrated in the surveillance footage.

Any assertion that providing the Extract of Reasons for Decision to the IMA is procedurally unfair was not accepted by the judge.  The judge emphasises that it is the worker’s “conduct, in exaggerating to doctors and the Tribunal his level of impairment in the past, that gives rise to the appropriateness of providing the IMA with the finding made by the Tribunal”.  However, the judge found that there is no need to provide the surveillance film in light of this.

A link to the full text of the case can be found here.

Nicholson v Return to Work Corporation of South Australia [2024] SAET 55

Topic: Appeal – WPI assessment

Commentator: Suzana Jovanovic

Background

This is an appeal concerning a worker who sustained a compensable right knee injury on 19 February 2016 which resulted in him having a right knee replacement in October of that year.  Due to overcompensating for the right knee, the worker began experiencing pain in the left knee and by the end of 2016 also sustained a traumatic injury to his left knee after it gave way when he stepped on a rock.  The worker was required to have a left knee replacement in May 2017 and a year later decided to proceed with a Permanent Impairment Assessment (PIA) in respect of both knee injuries.

The worker had pre-existing osteoarthritis in his knees.  The PIA assessor considered the outcome of each replacement surgery to be ‘fair’ and assessed each knee at 20% WPI in addition to 1% WPI for surgical scarring on each knee.

Combination is not an issue.  The issues mainly concerned deduction considerations and the manner in which the trial judge handled this.

Initially, the trial Judge found that the worker’s pre-existing osteoarthritis was asymptomatic and that therefore there should be no deduction.  However, on appeal to the Full Bench, the Judges disagreed and remitted the matter back to the trial Judge.  This resulted in the parties referring questions to an Independent Medical Adviser who gave oral evidence about the left knee by stating that:

• the pre-existing osteoarthritis, trauma from stepping on the rock and overcompensation for the right knee all could have caused impairment;
• “it is probably not able to be determined which of the three it is”; and
• suggested that it “should be apportioned one third to each of those causes”.

The trial Judge relied on the evidence of the Independent Medical Adviser.

Issues

The issues before the Full Bench in this case were:

• whether there was any evidence capable of supporting the trial Judge’s findings;
• whether the trial Judge provided legally adequate reasons; and
• whether the trial Judge erred in law when applying the legislative provisions with respect to deductions.

Held

The Judges on appeal made some observations with respect to the manner in which the IMA process took place and stated that what transpired ought not to be followed in future cases.  This is because there was no explanation provided by the trial Judge as to why he had sufficient concerns to obtain an IMA opinion.  One could view the IMA referral as no more than requesting a second opinion.

In turning to the issues on appeal, the Full Bench held that the evidence was capable of supporting the trial Judge’s findings, namely that it was more probable than not that the loss of joint space in the worker’s left knee was caused in part by the pre-existing osteoarthritis in combination with overcompensating for the opposing limb and the trauma from stepping on the rock.  The Independent Medical Assessor provided persuasive evidence with respect to attribution which the Permanent Impairment Assessor was generally supportive of. So, an elaborate discussion of the medical evidence was not required and therefore the trial Judge provided legally adequate reasons.  The trial Judge did not err in making a deduction as compelled by sections 22(8)(b) and 22(8)(g).

A link to the full text of the case can be found here.

Return to Work Corporation of South Australia v Hagan [2024] SAET 61

Topic: Application for Internal Review of a decision of a Commissioner who found undue delay in organising a permanent impairment assessment

Commentator: Chrissy Psevdos

Background

The applicant argued that by deciding that there had been undue delay by the Corporation in arranging a permanent impairment assessment the Commissioner erred in not paying sufficient regard to the information required to be provided to an assessor in order for them to consider prior injuries and impairments.

Issues

Deputy President Judge Calligeros noted that section 66 of the SAET Act was materially the same as section 70 of South Australian Civil and Administrative Tribunal Act 2013 (SACAT Act).  In doing so, he considered the views already expressed by the Tribunal in the matter of Heinjus v Return to Work Corporation of South Australia wherein the Full Bench adopted the view of the trial Judge in Dunn v Return to Work SA, and found that internal review under section 66 was not a “strict appeal”.

He referred to Deputy President Judge Rossi’s summary in the matter of Sullivan v Return to Work Corporation of South Australia wherein it was noted:

As observed by Hannon DPJ in Dunn v Return to Work SA, whilst the decision at first instance is to be given appropriate weight, it is the correct or preferable decision that is required upon review and that does not necessarily require the establishment of an error of law or error in fact finding or an error in the exercise of a discretion.

His Honour went on to consider the submissions that had been made by the parties leading up to the AED hearing.  He noted that the applicant had conceded there had been undue delay in its submissions to the Commissioner.  He disagreed with the suggestion that if the requirements of the IAGs were not satisfied that there could be no undue delay.  His Honour considered that while paragraphs 1.33 to 1.35 and Appendix 1 the IAG must be adhered to, a failure to properly attend to those provisions in a timely way does not mean there has been no undue delay, nor does it excuse the delay.

He went on to consider the order made by the Commissioner that the applicant, within 5 business days arrange for the claimant to be examined by Dr D’Onise pursuant to section 22 on the earliest possible date but not earlier than 18 June 2024 and no later than 9 July 2024.  He noted that the applicant had no control over the date of the assessment and would have been in breach of the order due to something entirely beyond its control.  He pointed out that the use of very directive language in orders on an AED that concerns a PIA could cause problems.

Deputy President Judge Calligeros also found that it was wrong for the Commissioner to question the probative value of a report about the worker’s injuries while being focussed on expediting the process.  The IAGs make it clear that information pertaining to prior or subsequent injuries must be obtained and he referred to the Full Court of the Supreme Court’s views in Paschalis in this regard.

It was also held that the Commissioner erred in his comments that it was for Dr D’Onise to be satisfied he had all of the relevant information.  His Honour indicated that the IAGs make it clear that the provision of relevant material was the responsibility of the requestor.

Key Takeaways

The message sent to the Commissioners about them needing to be mindful of some of the problems that arise in giving directions in an AED that concerns an assessment of WPI, was a timely reminder noting the blow out times of appointments.  In turn, it is important to remember that it is for the requestor of the PIA process to ensure that all relevant information is obtained and provided to the assessor for consideration and in accordance with the IAGs.

A link to the full text of the case can be found here.

Stott v Viterra Operations Pty Ltd [2024] SAET 62 and 76

Topic: Hearing loss – Burden of proof

Commentator: Tracey Kerrigan

This is the second of 2 recent cases where the self-insured employer rejected a claim for noise induced hearing loss and the matter proceeded to trial.

Background

In the first case of Branford [2024] SAET 37, Viterra bore the onus of proof that it did not expose the worker to noise capable of causing noise induced hearing loss.  It relied upon the shortness of the worker’s employment and pre-employment and post-employment audiology results which were similar and within the test/retest margin.

The judge in Branford found that Viterra had failed to discharge the onus placed upon it.

In Stott, the worker bore the onus of proof as he made his claim outside the 2 year period for making a claim and retaining the benefit of the deeming provisions in section 188(2).  The worker had worked for Viterra for 17 years as a stevedore.  Although there was not a pre-employment audiogram, there were several audiograms undertaken from 2006 onwards.  They showed a minimal hearing loss at best and no real progression over time.

Judge Kelly preferred the views of Dr Hains over that of Dr Fagan.  She also noted that it was difficult to draw conclusions from the audiology evidence.  She also did not consider the applicant’s evidence as to exposure in the workplace was sufficient.  She found that the worker did not discharge the onus placed upon him.

Subsequently Viterra applied for an order that the applicant not be awarded his costs having lost his case and in light of an offer that had been made prior to trial.  Viterra argued that the applicant acted unreasonably in pursuing the matter to trial.

Judge Kelly noted that merely failing to succeed in the application did not make the applicant’s decision to proceed with the hearing unreasonable.  The failure by the applicant to respond to the Calderbank offer does not necessarily result in an adverse costs offer.  The judge felt the offer made was not a genuine offer of compromise.  She noted the applicant’s case on the medical evidence was weaker but not so weak as to make it a hopeless case.  She awarded the applicant his costs.

Key Takeaways

Discharging the onus of proof (whether you are the worker or the employer) is not easy.

Audiology results can vary over time and the issue of the test/retest margin is complex.  Be mindful of the medical evidence being led about this issue.

Even a weak case for a worker is unlikely to result in them being deprived of costs.

Calderbank offers are not necessarily the secret to avoiding a costs order.

A link to the full text of both cases can be found here and here.

Kosef v Adelaide Community Healthcare Alliance Inc. [2024] SAET 63

Topic: Settlements in principle – how binding are they?

Commentator: Tracey Kerrigan

Background

The parties reached a settlement on what is often called a “global basis” with a payment reached that would include a redemption of weekly payments and medical expenses and which would finalise the worker’s employment.

The applicant worker attempted to obtain a medical certificate which is a mandatory requirement for a redemption.  Her GP would not “approve” it and execute the certificate.  The applicant then decided not to proceed with the settlement.

Issue

The respondent filed an application for directions and sought orders to enforce what it considered to be a binding settlement.

Held

Judge Rossi found that whilst the parties had agreed to finalise all matters, there was no binding redemption agreement until the prescribed conditions in sections 53 and 54 of the RTW Act had been met.  Once they were not fulfilled, the applicant was entitled to withdraw from the proposed redemption.

The respondent attempted to sever the part of the redemption from the other agreed terms but the judge also found that could not occur.

Key Takeaway

Until the worker executes the redemption agreement and all required certificates are obtained and returned there can be no binding settlement if the settlement includes redemption.

A link to the full text of the case can be found here.

The State of South Australia in right of South Australia Police v Hirst [2024] SAET 75

Topic: Summonsed documents and section 18 – will they materially assist your case?

Commentator: Oliver Fragnito

Background

The worker sustained serious injuries in 2017 when a motorcycle which he was riding collided with the rear of a stationary vehicle.  The worker suffered major head trauma, loss of his right eye, brain injury, neck and upper back, both upper limbs, both knees and sustained a post-traumatic stress disorder.

This particular decision however concerns an interlocutory application (AFD) filed by SAPOL seeking further and better discovery and production of documents from the worker.

The AFD relates to proceedings in the Tribunal between the parties, where the worker seeks prior approval to incur the cost of a Master of Counter Terrorism degree and a Master of Security and Strategic Studies degree through Macquarie University.  A further matter concerns an application by the worker to be provided with suitable employment under section 18 of the Return to Work Act 2014 (the Act).  The employment the worker seeks is a criminal investigator in the counter-terrorism and security section of SAPOL.

A decision was delivered earlier in the year, ordering a work site assessment. However, the occupational physician the worker had engaged retired and the assessment could not be conducted.

Late in 2023, the worker was approved by SAPOL to seek employment with the Compass Group (Compass) whilst on leave without pay.  The worker accepted full-time employment by Compass and ISS Services Pty Ltd (ISS).  The worker has worked as a health and safety coordinator at the Oak Dam mining site in SA since December 2023.

The AFD sought further and better discovery and production of the following documents:

• applications of employment submitted by the worker;
• all responses to any applications for employment submitted by the worker; and
• any offers of employment/contracts of employment made (other than the contract already provided with ISS).

Issue

Section 36(2)(a) of the South Australian Employment Tribunal Act 2014 (SAET Act) provides that the Tribunal is to take all practical steps to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all the relevant facts in issue in any proceedings.

Rule 60(2) of the South Australian Employment Tribunal Rules provides permission of the Tribunal is required to issue a summons to a person or body who is not a party to a proceeding, to produce evidentiary material without giving oral evidence.

SAPOL submitted that the worker’s ability to work is important for the section 18 proceedings.  The requested documents could show the worker’s incapacity, what constitutes suitable employment, and whether it’s feasible for SAPOL to offer employment. [at 11]

The worker’s counsel submitted that the apparent relevance of the documents must be measured by reference to issue section 18 traverses;

• was there an injury?
• is there incapacity for work?
• is there retained capacity for work?
• is it unreasonable to order SAPOL to provide employment?

[at 20]

Test

A summons remains generally a process to facilitate the production of documents which are considered to be of assistance in relation to the trial process.  The Tribunal adopts the relevant legal principles in Niuewenhuizen v Catholic Church Endowment Society Inc [2019] SAET 179, in determining whether the documents being sought will materially assist the case of the party seeking them. 

The Tribunal is required to be satisfied that the summons is to be issued for a legitimate forensic purpose and the onus is on the party issuing the summons to show that it is “on the cards” that the documents will materially assist the case. Fried v National Australia Bank Ltd [2000] FCA 911; (2000) 175 ALR 194 at 200 [29]; Derbyshire v Gilbert (2006) 31 WAR 58 [14]; Santos Ltd v Pipelines Authority of South Australia [1996] SASC 5578; (1996) 66 SASR 38 at 52.

The party seeking the summons needs to establish:

• there is a legitimate forensic purpose of the documents requested; and
• it is “on the cards” the documents may be materially relevant.

[at 21 – 22]

Held

Deputy President Judge Calligeros was not persuaded there is apparent relevance or a legitimate forensic purpose in relation to items 1 and 2 of the documents sought by SAPOL.  He found it difficult to see the relevance of employment applications and responses for roles which SAPOL had approved the worker to pursue.  It was expressed that details of what the roles entail can be established by evidence led by either party which is much more pertinent to section 18. [at 25]

As to the third category of documents, he took a different view.  He found, written offers of employment and employment contracts may contain evidence relevant to the suitability of the roles nominated by the worker, his capacity to undertake those roles and restrictions that may need to be imposed.  [at 27]

Key Takeaway

The onus is on the party requesting the summons to establish there is a legitimate forensic purpose for the documents and that they will be materially relevant to the matter.  There is little settled law in relation to section 18 and compensating authorities/employers should turn their mind to what further relevant material should be before the Tribunal when exploring the issues that come with it and if a summons is required whether they can meet the required test.

A link to the full text of the case can be found here.

Borlace v Randstad Pty Ltd [2024] SAET 79

Topic: Disclosure of Surveillance

Commentator: Tracey Kerrigan

Background

The respondent obtained surveillance film of the applicant and claimed privilege on such surveillance.  The applicant sought an order that the surveillance film be produced prior to trial.

The film was shown to Associate Professor Clayer and he provided a report after viewing the film when he described some of what was contained in the surveillance film and that was consistent with the applicant’s presentation to him.

Issue

The applicant argued that by showing the film to the doctor the respondent had waived privilege.  He also argued that it would be unfair to allow the respondent to provide surveillance to the doctor and then refuse to produce it.

Held

The judge agreed with the respondent that even if there was a waiver of privilege in terms of the surveillance film there was good reason to delay production to the applicant.  There was no prejudice to the applicant as he knew the dates of the film shown to the doctor, had recollection of his activities and would have the opportunity to cross-examine the doctor.

The order sought by the applicant was refused.

Key Takeaways

Making strategic decisions about when to disclose/produce surveillance film is always difficult, but merely showing the film to a doctor in advance of trial will not necessarily result in an order for production pre-trial.

A link to the full text of the case can be found here.

As always, should you have any queries, feedback, or comments on anything we have discussed above, or advice on any workplace legal needs, then please do not hesitate to reach out to one of us.