Blakers v South Metropolitan Health Service - [2023] WADC 143

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   BLAKERS -v- SOUTH METROPOLITAN HEALTH SERVICE [2023] WADC 143
CORAM:   GETHING DCJ
HEARD:   21 NOVEMBER 2023
DELIVERED          :   24 NOVEMBER 2023
FILE NO/S:   APP 43 of 2023
BETWEEN:   CAROLINE ANNE BLAKERS
Appellant
AND
SOUTH METROPOLITAN HEALTH SERVICE
Respondent

ON APPEAL FROM:
Jurisdiction              :   WORKERS' COMPENSATION ARBITRATION SERVICE
Coram:   ARBITRATOR FLETCHER
File Number            :   A121463

Catchwords:

Appeal - Workers' compensation - Whether arbitrator erred in law in making orders to produce medical information - Whether leave to appeal should be granted

Legislation:

Workers' Compensation and Injury Management Act 1981 (WA), s 193
Workers' Compensation and Injury Management Arbitration Rules 2011 (WA), r 50

Result:

Leave to appeal denied
Appeal dismissed

Representation:

Counsel:

Appellant	:	Mr M J Lourey
Respondent	:	Mr C C Rimmer

Solicitors:

Appellant	:	Chapmans Barristers & Solicitors
Respondent	:	Sparke Helmore Lawyers

Case(s) referred to in decision(s):

Arvind Pty Ltd v Lamers [2020] WASCA 47
BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250
Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Company (1882) 52 LJQB 181; 48 LT 22; 11 QBD 55
Engine Protection Equipment Pty Ltd v Miller [2018] WASCA 55
GLJ v The Trustees of the Roman Cathloc Church for the Diocese of Lismore [2023] HCA 32
Hongkong Xinhe International Investment Company Ltd v Bullseye Mining Ltd [No 4] [2021] WASC 287
House v The King (1936) 55 CLR 499
Kestell v Davey [2022] WASC 32
Marks v Coles Supermarkets [2021] WASCA 176
NRW Contracting Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [2020] WASCA 107
RLA Morgans v Vrebac [2022] WADC 86
Snook v Registrar of Fines Enforcement Registry [2019] WASCA 204
Stanley v Layne Christensen Company [2004] WASCA 50
Waite v Alcoa of Australia Ltd [2020] WASCA 1
Weeks v Nationwide News Pty Ltd [No 3] [2019] WASC 268
Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 18] [2023] WASC 82
Zaghloul v Woodside Energy Ltd [2019] WASCA 187

GETHING DCJ:

Introduction

In this appeal, Ms Blakers, the appellant, appeals a decision by an arbitrator on 30 August 2023 (Decision) to issue three orders to produce documents in the course of arbitration proceedings under the Workers' Compensation and Injury Management Act 1981 (WA) (WCIMA). At the conclusion of the hearing of the appeal, I made orders refusing leave to appeal and said I would provide written reasons, which are as follows.

The Application

Ms Blakers lodged her application for arbitration on 14 June 2023 (Application). Her employer, the respondent, is the South Metropolitan Health Service, whom I will refer to as the Employer.
In the Application, Ms Blakers seeks payment of weekly compensation and other statutory expenses for an alleged workplace bullying and psychological injury sustained in the course of her employment with the respondent on or about 8 December 2022. Annexed to the Application is a Workers' Compensation claim form and worker's statement describing an incident involving two co‑workers on 8 December 2022. Ms Blakers also describes two earlier incidents involving one co‑worker, one on 29 September 2021 and one on 28 July 2022.
In the proceedings in the Arbitration Service, the Employer contends that Ms Blakers did not suffer a psychological injury during the course of her employment with the Employer on or about 8 December 2022, or at all. In the alternative, if she did suffer this injury, which is disputed, the Employer contends that her employment was not a contributing factor and did not contribute to a significant degree to the contraction or aggravation of a disease. Rather, her injury (if any) arose as a result of personal, non‑work related factors and pre‑existing post‑traumatic stress disorder, depression and anxiety. The Employer further contends that Ms Blakers' injury (if any) is specifically excluded by WCIMA s 5(4) on the basis that any disease caused by stress wholly or predominantly arose from discipline or an expectation of discipline.

The Decision

Following some initial directions hearings, on 30 August 2023 Arbitrator Fletcher (Arbitrator), granted a request by the Employer for the issue of three orders to produce (Production Orders). The Arbitrator set out reasons for the Decision in a document dated 30 August 2023. The orders to produce were issued pursuant to WCIMA s 193 (which I quote at [19]).
The first order to produce was issued to the Burton Street Family Practice. It required production of a complete copy of Ms Blakers' medical records.
The second order to produce was issued to the Merredin Medical Centre. It also required production of a complete copy of Ms Blakers' medical records.
The third order was issued to Services Australia and was for a Medicare claims history statement for the period of three years prior to the date of the order (30 August 2023). The Employer had sought an order that Ms Blakers produce a copy of her Medicare statement from 1 January 2020 until 22 August 2022. However, the Arbitrator was of the view that the time, cost and inconvenience to Ms Blakers of producing these documents could be avoided by issuing the order to produce to Services Australia.
The relevant parts of the Decision are as follows:
Determination
Clinical records of Burton Street Family Practice and Merredin Medical Centre
In my view the history provided by the worker to Dr Edwards‑Smith (psychiatrist) as recorded in the report of Dr Edwards‑Smith dated 6 February 2023 do indicate that the worker's medical history may give rise to s 5(5) matters relevant to determination whether her employment with the respondent was a 'significant … contributing factor' to the worker's psychological condition, within the meaning of those words in the s 5(1)(c) or (d) definition in 'injury'.
The medical report of Dr Edwards‑Smith (psychiatrist) dated 6 February 2023 records a history provided by the worker 'of previous bullying, stress, anxiety and depression in 2010 … some stress with her daughter in mid‑2022, which had resolved by November 2022 … hasfinancial commitments and is very worried about impending interest rate rises … no history of mental health issues in first‑degree relatives'.
With respect to the issue of Doctor - patient confidentiality, in my view the effect of s 64 and 65, requiring a worker who has given notice of an injury to comply with an employer's requirement that the worker attend a medical examination, and s 205 and 206 abrogating legal professional privilege with respect to medical reports, is sufficient to establish that the relationship of confidentiality between doctor and patient may be outweighed in circumstances where a patient has made a claim for weekly payments under the Act and there are legitimate forensic purposes for requiring production of otherwise confidential medical information.
In my view the likely time, cost and inconvenience to the medical practices of producing the worker's clinical records would be minimal.
Moreover, although the likely effect of these documents on the outcome of the arbitration proceeding may not be determinative, I consider that they may nevertheless carry some weight, and therefore ought to be available in the interests of a fair and just resolution of the dispute.
Medicare claims history statement from 1 January 2020 until 22 August 2023.
I accept the employer's submission that the time, costs, and inconvenience to the worker of utilising the MyGov website to obtain a Medicare claims history can be avoided by issuing a production order to Services Australia for a Medicare claims history for the three‑year period prior to the date of the order and that the said history is of prima facie relevance to the s 5(5) matters requiring consideration. I consider that I have discretion under s 193(4), to issue a Form 158 production order to Services Australia.

The Appeal

By Appeal Notice filed 6 September 2023, Ms Blakers appealed from the Decision. The sole ground of appeal is that:
The Arbitrator erred in law in not correctly interpreting s.193 of the WCIMA in that he made a Production Order with respect to the sensitive, private and confidential medical records of the Appellant that were not relevant to an issue in A121463.
On 11 September 2023, the Employer filed a Notice of Respondent's Intention in which it advised the court that it would seek to argue that the Decision should be upheld on the grounds relied by the Arbitrator.
Except as provided by WCIMA pt XIII or WCIMA s 267, the appeal is to be conducted in accordance with the rules of the District Court.[1] As no leave has been granted otherwise, the appeal is to be conducted on the basis of the evidence before the Arbitrator.[2]
[1] WCIMA s 247(5).
[2] WCIMA s 247(6).
The appeal is to be by way of 'review of the decision appealed against'.[3] The 'review' is in the nature of an appeal by rehearing.[4] This means that:[5]
[i]t is not sufficient to satisfy the District Court judge that a decision other than that made by the arbitrator is correct and preferable. Some material error of fact or law, or some other miscarriage of justice, must be established.
…
Once an error or a miscarriage of justice is established then the appellate court, if it is in a position to do so, substitutes its own decision for that of the arbitrator.
[3] WCIMA s 247(5).
[4] Marks v Coles Supermarkets [2021] WASCA 176 [124] (judgment of the court) (Marks).
[5] Marks [124], [131].
The appeal is, however, subject to the grant of leave.[6] The relevant basis for the grant of leave is that set out in WCIMA s 247(2)(b), being that 'a question of law is involved'.
[6] WCIMA s 247(1).
A decision will not 'involve' an error of law 'unless the error is material to the decision in the sense that it contributes to it so that, but for the error, the decision would have been, or might have been, different'.[7] It is not sufficient for the appellant to merely assert that there was an error of law.[8] If there is a question of law involved, leave should be granted if, in all the circumstances of the particular case, it is in the interests of justice that there be a grant of leave.[9] In considering whether the interests of justice lie, relevant matters 'include, but are not limited to, whether the decision below was wrong, or attended with sufficient doubt to justify leave, and whether a substantial injustice would be done by leaving the decision unreversed'.[10]
[7] BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250 [15] (Pullin JA, with whom Buss & Wheeler JJA agreed) (Brady).
[8] Brady [15].
[9] Waite v Alcoa of Australia Ltd [2020] WASCA 1 [78] (judgment of the court) (Waite); Engine Protection Equipment Pty Ltd v Miller [2018] WASCA 55 [46] (judgment of the court) (Engine Protection).
[10] Engine Protection [46]; Waite [78].
The Decision relates to an interlocutory order, that is, one which does not finally dispose of the rights of the parties in the proceedings.[11] In the Supreme Court, no appeal lies to the Court of Appeal from an interlocutory decision without the leave of the court.[12] On an appeal to the District Court in the WCIMA regime, in considering the interests of justice, the fact that the decision under appeal is an interlocutory one is relevant, and similar principles apply. These were recently summarised in the context of a WCIMA appeal by Bowden DCJ in RLA Morgans v Vrebec:[13]
The principles applicable to interlocutory appeals and the requirements for the granting of leave are in addition to those specified in s 247. The principles which apply to an interlocutory appeal are well settled. Generally the appellant must show that the original decision was wrong or at least attended by sufficient doubt to justify the grant of leave and that substantial injustice would be done if the decision was not reversed: Wilson v Metaxas [1989] WAR 285, 294. Those principles are not however inviolable and leave may be granted whenever the interests of justice require it: SMEC Australia Pty Ltd v Valentine Falls Estates Pty Ltd [2011] WASCA 138.
The availability of an avenue to an appeal from interlocutory decisions subject to the grant of leave, should not be seen as providing an unrestricted opportunity for the lengthy reventilating of arguments which failed at first instance. The determination of whether the decision from which leave to appeal is sought was wrong or attended with sufficient doubt to justify the grant of leave to appeal, should not ordinarily require or involve argument of a complexity and duration of the arguments presented at first instance. Ordinarily the court determining whether or not to grant leave to appeal would take a broad approach to that question: Silbert and Addison as Executors and Trustees of the Estate of Gerte Hoffman v Steinberg as Executor of the Estate of Morris Steinberg [2010] WASCA 113; Amana Living v Soliven [2013] WADC 118 (Stavrianou DCJ).
[11] Zaghloul v Woodside Energy Ltd [2019] WASCA 187 [57] (judgment of the court).
[12] Supreme Court Act 1935 (WA) s 60(1)(f).
[13] RLA Morgans v Vrebac [2022] WADC 86 [20] - [21] (Bowden DCJ). See also: NRW Contracting Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [2020] WASCA 107 [44] (Murhpy JA), [117] (Beech & Vaughan JJA) (NRW Contracting); Arvind Pty Ltd v Lamers [2020] WASCA 47 [15] - [17] (reasons of the court) (Arvind).
Appellate courts are to exercise 'particular caution' or 'special restraint' or 'a tight rein' in reviewing interlocutory decisions on matters of practice and procedure.[14] In Arvind, the Court of Appeal observed:[15]
The reasons why there must be a tight rein on interlocutory appeals against the exercise of discretion on a point of practice and procedure are well‑established. As was said by Jordan CJ in Re the Will of FB Gilbert (Dec) [(1946) 46 SR (NSW) 318, 323]:
[T]here is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal.
[14] NRW Contracting [117]; Arvind [17].
[15] Arvind [17].
This observation applies with particular force to interlocutory decisions of an Arbitrator under the WCIMA given that one of its purposes is:[16]
to make provision for the hearing and determination by the dispute resolution authorities of disputes between parties involved in workers' compensation matters in a manner that is fair, just, economical, informal and quick.
[16] WCIMA s 3(d).

Determination

The sole ground of appeal is that the Arbitrator erred in law in not correctly interpreting WCIMA s 193. That section sets out the power to make an order to produce:
(1)An arbitrator may order any person (whether or not a party to a dispute before the arbitrator) -
(a)to produce, at a time and place specified in the order, the documents or material specified in the order; or
(b)to furnish specified information within a time specified in the order.
The power in WCIMA s 193 is to be exercised in accordance with Workers' Compensation and Injury Management Arbitration Rules 2011 (WA) (WCIMAR) r 50, which provides:
50. Order under rule 47 or section 193
(1)An arbitrator must not exercise powers under rule 47 or section 193 unless the arbitrator is satisfied that the order is necessary for the fair, just, economical, informal and quick resolution of a dispute.
(2)In exercising powers under rule 47 or section 193 the arbitrator may consider the following -
(a)whether the document, material or information sought is relevant to an issue in dispute;
(b)the relative importance of the issue to which the document, material or information relates;
(c)the likely time, cost and inconvenience involved in producing a document, material or information, taking into account the amount of the property, and the complexity of the corporate, trust or partnership interests (if any), involved in the proceeding;
(d)the likely effect on the outcome of the proceeding of producing, or not producing, the document, material or information.
I note that, in the Decision, the Arbitrator refers to both WCIMA s 193 and WCIMAR r 50 and applies them to the issue of whether the Production Orders ought to be made.
Counsel for Ms Blakers did not take issue with the point that WCIMA s 193 empowers an Arbitrator to make an order to produce sensitive, private and confidential medical records which otherwise fall within the scope of the power. Nor could he. It is inherent in the nature of the determinations made in the WCIMA regime that the employer and the Arbitrator will need to consider personal, private and potentially sensitive information of the injured worker including medical information. This is recognised in the application form, which contains the following consent:[17]
I consent to my employer's insurer and its appointed service providers collecting personal information, inclusive of sensitive information such as medical information about me and using it for the purpose of assessing and managing my workers' compensation claim, including determining liability and whether my claim is true.
This consent extends to my employer's insurer disclosing my personal information, inclusive of sensitive information, to other insurers, medical practitioners, rehabilitation providers, investigators, legal practitioners and other experts or consultants for the purpose of assessing and managing my claim.
My personal information, inclusive of sensitive information, may also be disclosed as required or permitted by law. I also consent to my employer's insurer disclosing my personal details to WorkCover WA which is authorised to Workers' Compensation and Injury Management Regulations 1982 Appendix I Form 2B page 112 Official Version As at 24 Oct 2023 Published on [PCO 08-k0-00] use this information to fulfil its functions and obligations under the Workers' Compensation and Injury Management Act 1981.
I have read all the information on this form regarding the consent authority and I consent to the Insurer dealing with my personal information in the manner described.
[17] Workers' Compensation and Injury Management Regulations 1982 (WA), Appendix I, Form 2B.
The consent is expressed 'to be signed at the option of the worker'. On the materials before the court, Ms Blakers' electronically signed the consent in the Application.
Indeed, given the comprehensive reach of the legislative privacy regime, it is difficult to image a situation in which an order for production under WCIMA s 193(1) would not require production of private and confidential material. This is almost axiomatic as, if the information is not private or confidential, no order would be required for the employer to gain access to it.
Rather, the central issue in dispute is the meaning of the word 'relevant' in WCIMAR r 50(2)(a). In this regard, counsel for the Employer relies on the principles applying to 'relevance' in Supreme Court, in particular, the decision in Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Company.[18] That test concerns the phrase 'relate to any matter in question' in the context of discovery. Under that test, a document is discoverable if it is reasonable to suppose that it contains information which may either directly or indirectly enable the party seeking discovery to either advance their case or damage their adversary's case (which includes documents which may fairly lead to a train of inquiry which may have either of these two consequences).[19]
[18] Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Company (1882) 52 LJQB 181; 48 LT 22; 11 QBD 55, 63 (Brett LJJ) (Peruvian Guano).
[19] Peruvian Guano (63); Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 18] [2023] WASC 82 [38] (Smith J).

However, in my view, the closer analogy in the Supreme Court regime is for subpoenas to produce, rather than discovery. The power to issue a subpoena to produce documents is not subject to a test of relevance.[20] Rather, relevance is considered on an application to set aside the subpoena.[21] The central issue is whether there is a legitimate forensic purpose for the issue of the subpoena. The relevant principles were summarised by Hill J in Hongkong Xinhe International Investment Company Ltd v Bullseye Mining Ltd (No 4):[22]
[20] Rules of the Supreme Court 1971 (WA) (RSC) O 36B r 2(1)(b).
[21] RSC O 36B r 8A.
[22] Hongkong Xinhe International Investment Company Ltd v Bullseye Mining Ltd [No 4] [2021] WASC 287 [11] (Hill J) (references omitted), adopted in Kestell v Davey [2022] WASC 32 [11] (Smith J).
Relevantly, for the purposes of the applications before me:
(a)Order 36B r 8A(2) of the Rules of the Supreme Court 1971 (WA) (Rules) provides that on a request by a party, the court may set aside a subpoena or part of it;
(b)the court will set aside a subpoena if it has no legitimate forensic purpose. In determining whether a subpoena has a legitimate forensic purpose, the court will consider whether there is a reasonable possibility or 'it is on the cards' that the documents sought in the subpoena will materially assist the claim or the defence of the proceedings or are relevant to an issue in the proceedings … A document may provide material assistance even if it is not admissible in the proceedings …
(c)a legitimate forensic purpose extends to material which may relate to the cross-examination of a witness, including documents which relate only to credit; …
(d)in determining whether the documents have apparent relevance to the issues in the proceedings, the court must consider the issues that potentially arise on the pleadings, including the particulars that have been provided;
(e)the court will set aside a subpoena where the subpoena is an abuse of the process of the court. A subpoena may be an abuse of process where it may be characterised as 'fishing', being used for the purpose of obtaining discovery against a third party, or oppressive;
(f)in determining whether a subpoena is properly regarded as fishing, I have had regard to the statement of Owen J in Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd [ (1955) 72 WN (NSW) 250, 254 …
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. If, however, there is material before the court pointing to the probability that a party to litigation has in his possession documents tending to destroy his case or support the case of his opponent and that privilege from inspection of such documents has been wrongly claimed, an application by that opponent to be allowed to inspect them cannot properly be described as a mere 'fishing expedition'.
(g) the fact that documents which are the subject of a subpoena may also be sought in discovery does not, of itself, mean that the subpoena is an abuse of process …
An alternate formulation is that:[23]
the court will consider whether the documents give rise to a line of inquiry, whether the documents are required for a fair disposal of the action, whether the documents allow the parties to appraise the strengths and weaknesses of their and their opponent's case, and whether all relevant documents should be made available to the parties. A document may materially assist the defence even if it is not admissible in the proceeding. A legitimate forensic purpose will be established if a document gives rise to a line of inquiry which is relevant to the issues before the trier of fact.
[23] Weeks v Nationwide News Pty Ltd [No 3] [2019] WASC 268 [9] (Le Miere J), citing Stanley v Layne Christensen Company [2004] WASCA 50.
The appropriateness of using Supreme Court civil procedure by way of analogy is strengthened by the fact that elsewhere in the WCIMA regime this expressly occurs. For example, WCIMA s 206(1) provides:[24]
Unless it would be contrary to section 204 or 205 or an order under section 193, a person is excused from answering a question or producing or furnishing a document, material or information in a proceeding if the person could not be compelled to answer the question or produce or furnish the document, material or information in proceedings in the Supreme Court.
[24] See also: WCIMA s 182ZB.
Applying these principles by analogy, in my view, a document, material or information is 'relevant to an issue in dispute' for the purposes of WCIMAR r 50(2)(b) if there is a reasonable possibility that the document, material or information sought will materially assist the application or the defence of the application, or is otherwise relevant to an issue in the application, including for the purpose of cross‑examination, and including where what is sought may lead to a train of inquiry which is relevant to the issues in dispute.
While the Arbitrator did not specifically apply this test, his reference that the documents 'may nevertheless carry some weight' in the outcome of the arbitration is substantially the same as the test I have posited in [29]. I note also that the Arbitrator considers the relevant factors set out in WCIMAR r 50. I am not persuaded that the Arbitrator erred in the interpretation of WCIMA s 193 or WCIMAR r 50.
However, there is a potentially wider error of law by the Arbitrator which Ms Blakers could assert, and which is inherent in the ground of appeal. This is that the Arbitrator erred in the exercise of the discretion in WCIMA s 193. The power to order production of documents is discretionary denoted by the use of the word 'may': 'An arbitrator may order any person…'. Where in a written law the word 'may' is used in conferring a power, 'such word shall be interpreted to imply that the power so conferred may be exercised or not, at discretion'.[25]
[25] Interpretation Act 1984 (WA) s 56(1).
An appeal by way of review from a decision involving the exercise of a discretion is to be determined according to the principles in House v The King.[26] Those principles are:[27]
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
[26] House v The King (1936) 55 CLR 499, 504 - 505 (Dixon, Evatt & McTiernan JJ) (House); GLJ v The Trustees of the Roman Cathloc Church for the Diocese of Lismore [2023] HCA 32 [16] (Kiefel CJ, Gageler & Jagot JJ).
[27] House (504) - (505).
It is sufficient to determine the appeal by reference to most general of the principles set out in House, being that error may be inferred if the decision under appeal, 'upon the facts is unreasonable or plainly unjust'.[28] Or put slightly differently, the decision 'was so unreasonable that no reasonable judicial officer could have made it'.[29]
[28] House (505).
[29] Snook v Registrar of Fines Enforcement Registry [2019] WASCA 204 [35] (Reasons of the Court).
The issues in dispute in the Application include the contention that Ms Blakers' psychological injury was related to non‑work matters or issues. There is a clear basis in the materials currently disclosed in the Arbitration for that contention, in particular the report of Dr Edwards‑Smith which the Arbitrator refers to in the Decision (quoted at [9]). Against this material, it cannot be asserted that the Production Orders were a 'fishing expedition' in the sense described in the passage quoted at [26]. Rather, in my view the documents sought were 'relevant' to an issue in dispute as defined at [29]. I consider that there is at least a reasonable possibility that the documents sought in the Production Orders will materially assist the Employer in its defence of the Application. Specifically, in order for a psychiatrist engaged by the Employer to properly opine on whether or not Ms Blakers' psychological issues related to her employment within the framework of the WCIMA, it is necessary for the Employer to brief the psychiatrist with a comprehensive set of material relating to:
(a)all psychological symptoms complained of by Ms Blakers;
(b)any other potential causes of the psychological symptoms complained of by Ms Blakers; and
(c)any treatment received by Ms Blakers for psychological symptoms.
The materials need to go back for a reasonable period prior to 8 December 2022 when the incident the subject of the Application is said to have occurred. The material may give rise to a line of inquiry which is relevant to the issues before the Arbitrator, in particular to other potential causes of the psychological symptoms being experienced by Ms Blakers. The material is also relevant to testing whether the medical history provided by Ms Blakers to Dr Edwards‑Smith is accurate and complete. This material would further be relevant to any potential cross‑examination of Ms Blakers.
Counsel for Ms Blakers contended that the scope of the Production Orders - the complete file - must necessarily encompass information which is not relevant to the issues in dispute. There are a number of points that need to be made in response to this contention. The first is that the scope of the matters that may potentially be of significance to the issue of the cause and extent of Ms Blakers' psychological symptoms is very wide. It is difficult to argue, in the specific context of the present case, that there is not at least a reasonable possibility that the entirety of the plaintiff's medical record will materially assist the Employer in its defence of the claim. The second is that the only person who can properly make the assessment of whether a matter is significant to the issue of the cause and extent of Ms Blakers' psychological symptoms is a psychiatrist. However, the psychiatrist needs to have the relevant primary material on which to make this assessment. The third is that it would be improper for the scope of the production order to require the addressee to make an assessment of whether a specific matter is significant to the issue of the cause and extent of Ms Blakers' psychological symptoms. This is because, by analogy to the principles relating to subpoenas in the Supreme Court, it is not permissible for the order to require the addressee to make a judgment as to which documents relate to the issues between the parties.[30]
[30] Kestell v Davey [2022] WASC 32 [14] (Smith J).
In addition, I agree with the Arbitrator's assessment of the factors in WCIMAR r 50.
In my view, the Production Orders were necessary in order to give the Employer a 'fair' opportunity to defend the Application, a matter properly considered pursuant to WCIMAR r 50 (and also WCIMA s 3(d)).
For these reasons, I do not consider that the Decision was so unreasonable that no reasonable arbitrator could have made it.[31] Rather, I am comfortably satisfied that the Decision was reasonably open to the Arbitrator for the reasons he gave.[32]
[31] Snook [35].
[32] Snook [35].
Returning to the issue of leave to appeal, I accept that the Appeal involves an error at law. The interpretation of the concept of 'relevance' in WCIMAR r 50(2)(a) is material to the decision to issue a production order.
However, as set out at [39], Ms Blakers has not shown that the Decision was wrong or even attended by sufficient doubt to justify the grant of leave.
Further, in my view, no substantial injustice would be done if the Decision is not reversed. I assume, as would be usual, that the material obtained in the Production Orders will be given to the psychiatrist for a supplementary opinion. To the extent that the psychiatrist ultimately does not consider that a particular aspect of the information obtained in the Production Orders is of significance to the issue of the cause and extent of Ms Blakers' psychological symptoms, it will form no further part of the Arbitration process (unless relevant for some other reason), and Ms Blakers will suffer no injustice. To the extent that the psychiatrist does consider that a particular aspect of the information obtained in the Production Orders is of significance to the issue of the cause and extent of Ms Blakers' psychological symptoms, that information ought properly have been taken into account by the psychiatrist, and there can be injustice in this occurring. Whether the ultimate opinion of the psychiatrist as to the causation issues is accepted is a matter for the Arbitrator based on all the material before him, including any psychiatric evidence Ms Blakers adduces.
I then add to the analysis the need to keep a 'tight rein' on interlocutory appeals for the reasons set out at [17].
For all these reasons, I do not consider it to be in the interests of justice to grant Ms Blakers leave to appeal.
Leave is refused and the appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
LL
Associate
24 NOVEMBER 2023