Burns v Territory Insurance Office [2006] NTSC 12



JURISDICTION Motor Accidents (Compensation) Appeal Tribunal

FILE NUMBER M2/05 (20513540)

DELIVERED 16 February 2006

HEARING DATE 1 December 2005



PRACTICE - Northern Territory – discovery of documents – Motor Accidents (Compensation) Appeal Tribunal – relevant documents
STATUTES – Northern Territory – Motor Accident (Compensation) Appeal Tribunal Rule 7(d) – directions as to discovery – rules 5(1)(b) and 6(1)(b) – relevant documents

Pollard v TIO (1997) 6 NTLR 142
Saroukos v TIO (1988) 91 FLR 448

Plaintiff Self represented
Defendant Cridlands
Judgment category classification
Judgment ID number mas12
Number of pages 6


No. M 2 of 2005 (20513540)






(Delivered: 16 February 2006)

[1] The applicant claims to be aggrieved by Determinations by the Board uphold holding decisions by the Designated Person as to her claim for benefits pursuant to section 13 of the Motor Accidents (Compensation) Act and her claims for appliances and rehabilitation treatment. The applicant is also aggrieved by the failure of the Board to make a Determination in relation to requests for physiotherapy expenses.

[2] The respondent denies that the plaintiff has suffered loss of earning capacity since 15 August 2004, and says that if she has suffered such loss, she has failed to undertake a reasonable rehabilitation programme, and is liable to have payments suspended by reason of section 12(4) of the Act. It is also denied that the applicant requested that the issue of physiotherapy expenses be referred to the Board, and that the applicant is entitled to the appliances and rehabilitation sought.

[3] Although there has been no direction to do so, the respondent has filed a list of documents. It has also filed a folder of documents, said to be copies of all relevant documents, pursuant to rule 6(1)(b). The applicant seeks an order for further and better discovery of documents. In her affidavit in support of the application, the applicant deposes as to her belief that the respondent has documents within its possession, which may assist the applicant’s case, or damage that of the respondent, and which it has failed to produce. These documents are said to include a wide range of documents, including correspondence, file notes, reports, submissions and reasons for decision. There was no evidence relating to specific documents.

[4] In argument, more specific matters were raised. In the report of Dr. Duthie dated 16 October 2001 there was reference to a letter from Dr. Bell dated 4 May 2001, which was said not to have been disclosed. A report from Dr. Graham dated 20 January 2003 mentions a letter from a rehabilitation counsellor and the opinion of Dr. Thompson. In a report dated 6 May 2005 Dr. Flavell refers to a meeting with the TIO and it was argued that there would have been a summary of this meeting in writing, similar to that dated 11 February 2005 at which Dr. Duthie was present. It was also argued that the claim relating to the alleged failure to make a determination will depend on the dates that submissions were referred to the Board, which should be revealed by discovery of the relevant documents.

[5] The respondent asserts that it has discovered all the documents that are “relevant” to the issues between the parties. It is admitted that there are internal documents of the TIO which have not been discovered, but it is said that these documents are not relevant. In part, these are the documents to which the applicant seeks access. A question arises as to the nature and extent of discovery in proceedings under the Act.

[6] Section 27 of the Act refers to the provision of “prescribed information” to the designated person, which is defined in sub-section (1AA) as information that is relevant to, and reasonably required to enable, the designated person to assess a claim. Section 29 gives the Tribunal wide powers to make determinations and it is provided that a hearing shall be a hearing de novo. The Tribunal is not constrained in any way by the findings of the Board or the evidence before the Board (see Pollard v TIO (1997) 6 NTLR 142, 145-6).

[7] Rule 5(1) provides that a reference shall be instituted by giving to the Registrar a notice in the appropriate form and a copy of all relevant documents in the possession of the party instituting the reference. The applicant appears to have failed to comply with this requirement. Rule 6(1) provides that a party may file an answer and a copy of all relevant documents in the possession of the party making the answer.

[8] Rule 7(2) provides that the Tribunal may, at a mention before the Tribunal, give such directions as are expedient for the speedy and inexpensive determination of the reference, including “(d) ordering mutual discoveries and inspection within a specified time”. The nature and extent of such discovery has not otherwise been defined. In Saroukos v TIO (1988) 91 FLR 448, 451-453, Martin J, as he then was, adopted the provisions of O.29 of the Supreme Court Rules. His Honour did, however, at page 454, point out that it may not always be expedient to adopt such a procedure.

[9] In the normal course, it may only be necessary for each party to provide a copy of all relevant documents as provided by rules 5 and 6. It appears to be left to the party providing copies to decide what documents are relevant, although some assistance may be derived from section 27(1AA), that is, information that is reasonably required to enable the designated person to assess the claim. The documents that are relevant, apart from the determinations the subject of the reference to the Tribunal, are those documents containing information relating to the issues, such as the applicants medical condition, her capacity to earn, her need or otherwise for treatment, physiotherapy, rehabilitation and appliances, and the applicants requests for physiotherapy expenses. Relevant information may be contained in medical reports and certificates, correspondence (including e-mails), notices, notes of discussions between the applicant and employees or agents of the respondent, and notes of discussions between employees and agents of the respondent and medical professionals, such as doctors, physiotherapists, rehabilitation consultants, and providers of appliances (if the applicant or her agent made similar notes, they would also be relevant). It is not intended that these categories be exhaustive.

[10] So far as this reference to the Tribunal is concerned, internal memoranda of the respondent and submissions to the Designated Person and the Board are irrelevant, except insofar as they may relate to the applicants requests for physiotherapy expenses. There is no basis for granting the applicant access to the respondent’s file. If the applicant is having difficulty understanding the respondent’s case, it would be of more use to seek particulars of the respondent’s Answer.

[11] If both parties provide copies of all relevant documents as contemplated by the rules there should be no need for further discovery of documents. The applicant is yet to comply with this requirement, and I am not sure that the respondent has provided copies of all relevant documents, although I note that some concessions have been made in the course of submissions. The respondent should review its list of documents in the light of the suggestions made in paragraph 9 of these reasons for decision.

[12] Strictly speaking, the applicant should file copies of all relevant documents, but this may result in unnecessary duplication, so I will direct that the applicant file and serve a list of relevant documents in her possession and provide copies of any such documents as are reasonably required by the respondent. The respondent will be directed to review its list of documents and file and serve an amended list, if necessary, and provide copies of any documents reasonably required by the applicant.

[13] When these directions have been complied with, I will, if necessary, hear further from the parties as to any specific documents, or classes of documents, that are alleged to be relevant but which have not been disclosed.