CGXH and National Disability Insurance Agency - [2022] AATA 2836

CGXH and National Disability Insurance Agency [2022] AATA 2836 (30 August 2022)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2021/10125
Re:CGXH
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

INTERLOCUTORY Decision
Tribunal:Senior Member K Buxton
Date:30 August 2022
Place:Brisbane

The Tribunal will grant leave for the Respondent to inspect the summonsed material save for pages 40-43 of the summons document produced by the Neurologist from 6 September 2022.
........................[SGD]....................................
Senior Member K Buxton
Catchwords
PRACTICE AND PROCEDURE - NATIONAL DISABILITY INSURANCE AGENCY –summons – objection to inspection of summons documents – whether the documents produced under summons fall outside the scope of the summons request – whether the documents produced under summons are immaterial and irrelevant – Applicant’s objection upheld
Legislation
National Disability Insurance Scheme Act 2013 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
Cases
Comcare v Maganga [2008] FCA 285
Hearne v Street [2008] HCA 36
HXJZ and National Disability Insurance Agency [2022] AATA 826
REASONS FOR DECISION
Senior Member K Buxton
30 August 2022
BACKGROUND

CGXH (“the Applicant”) is a 34-year-old woman who seeks access to the National Disability Insurance Scheme (“NDIS”). The Applicant filed an application with the Tribunal on 22 December 2021, seeking review of a decision made by the National Disability Insurance Agency (“the Respondent”) dated 23 November 2021.[1] The decision made under section 100(3) of the National Disability Insurance Scheme Act 2013 (Cth) (“the NDIS Act”), confirmed an earlier decision made by the delegate of the Chief Executive Officer (“CEO”) of the Respondent on 9 June 2021 which determined that the Applicant did not meet the access criteria required to become a participant of the NDIS (“the reviewable decision”).[2]
[1] T-documents, T1.
[2] T-documents, T2.
The Applicant seeks access to the NDIS based on a diagnosis of Functional Neurological Disorder (“FND”).[3]
[3] Applicant’s submissions dated 15 August 2022, [3].
REQUEST TO ISSUE SUMMONS
On 29 April 2022, the Respondent filed a request to issue summons to four of the Applicant’s treating practitioners:[4]
(a)General Practitioner (“GP”);
(b)Neurologist;
(c)Psychiatrist; and
(d)Physiotherapist.
[4] Ibid, [6].
The summons requested:[5]
Any and all file notes, clinical notes, investigative reports, progress notes, medical reports, rehabilitative reports, medical certificates, prescription notes, radiological results, referral notes/letters and any other documents in your possession relating to the Applicant from the period beginning 1 January 2019 to the date of the receipt of this summons, in connection with:
1. Functional Neurological Disorder
[5] Ibid.
On 24 June 2022, the Tribunal issued the summons for the Respondent to dispatch, with a return date of 11 July 2022. The GP filed a copy of the summons documents in compliance with the summons order on 11 July 2022, the neurologist on 4 July 2022, the psychiatrist on 18 July 2022 and the physiotherapist on 5 August 2022.
The Applicant’s representative was sent a copy of the summons documents produced by the neurologist and GP on 19 July 2022, and a copy of the summons documents produced by the psychiatrist on 26 July 2022. The Applicant’s representative has not inspected the summons material produced by the physiotherapist to date.
SUMMONS OBJECTION
On 22 July 2022, the Applicant’s representative emailed the Tribunal and Respondent an objection to the Respondent inspecting some of the documents produced under summons by the neurologist and GP. The reason for the objection was:[6]
…the documents include information on the Applicant’s health issues, for which she wants to retain privacy and these documents are not relevant to the conditions the Applicant is arguing in her external review application. The documents generally include diagnoses, notes, test results and exploratory procedures.
[6] Applicant’s submissions dated 15 August 2022, [6].
On 29 July 2022, the Applicant’s representative emailed the Tribunal and Respondent an objection to the Respondent inspecting various pages of the summons produced by the psychiatrist. The reason for the objection was:[7]
…the documents include information on the Applicant’s health issues, for which she wants to retain privacy and these documents are not relevant to the condition the Applicant is arguing in her external review application. The documents generally include diagnoses, notes, results and medications.
[7] Ibid.
On 3 August 2022, the Respondent requested that the matter be listed for a Directions Hearing by telephone to allow the Applicant to provide further particulars regarding the objection and allow the Respondent an opportunity to respond to the objections.[8] On 8 August 2022, the Tribunal wrote to the Applicant’s representative and Respondent requesting that the Applicant provide a written submission regarding the objection, allowing the opportunity for the Respondent to respond to the written submissions.[9] The Tribunal informed the parties that is would deal with the objections on the papers.
[8] Ibid.
[9] Applicant’s submissions dated 15 August 2022, [6].
On 15 August 2022, the Applicant’s representative filed a written submission regarding the summons objection. On 22 August 2022, the Respondent wrote to the Applicant’s representative and the Tribunal advising they did not wish to make any submissions and defer to the Tribunal to make a decision.
APPLICANT’S POSITION
The Applicant submits that the documents produced by the summons parties include all documents within the timeframe specified in the summons and therefore include documents not relevant to the diagnosis of FND.[10] The Applicant further submits that some of the documents predate the time specified in the summons request, and therefore should be excluded from the Respondent’s inspection.[11]
[10] Ibid, [28].
[11] Ibid, [29].
The Applicant specifies each page of the summons documents that they are objecting to and provides detailed explanations of how these pages are not relevant to the Applicant’s diagnosis of FND.[12]
[12] Ibid, [36] – [104].
The Applicant relies on the case of HXJZ and National Disability Insurance Agency (“HXJZ”),[13] submitting that the principles listed by Member Smith in the decision are met by the Applicant’s reason for objecting.[14] Specifically:
(a)As the certain pages in the documents do not pertain to the diagnosis of FND, they have no legitimate forensic purpose;
(b)Pages of the documents discuss matters that do not form part of the matter before the Tribunal and are therefore not in dispute;
(c)The pages of the documents which are objected to are outside the scope of the summons requests issued by the Respondent; and
(d)There is no contention as to the Applicant’s credibility, therefore these documents are not required for an ulterior purpose.
[13] [2022] AATA 826.
[14] Applicant’s submissions dated 15 August 2022, [116].
The Applicant seeks orders from the Tribunal allowing the Applicant’s objection to the specified pages of material produced by the GP, the neurologist and the psychiatrist.[15]
[15] Applicant’s submissions dated 15 August 2022, [117].
ISSUE FOR CONSIDERATION
The issue before the Tribunal is ‘whether the documents relate to the proceedings such that there is a real possibility that they may assist in the resolution of the issues in the resolution of the issues in the proceeding.’[16]
[16] Comcare v Maganga [2008] FCA 285, [37].
LEGAL FRAMEWORK
The power for the Tribunal to issue summons to produce documents is set out in section 40A of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”).
Power to summon person to give evidence or produce documents
(1) For the purposes of a proceeding before the Tribunal, the President, an authorised member or an officer of the Tribunal may summon a person to do either or both of the following, on the day, and at the time and place, specified in the summons:
(a) appear before the Tribunal to give evidence;
(b) produce any document or other thing specified in the summons.
Section 40B of the AAT Act sets out the power of the Tribunal to provide inspection of documents produced under summons.
Inspection of documents produced under summons
(1) Any of the following persons may give a party to a proceeding leave to inspect a document or other thing produced under a summons in relation to the proceeding:
(a) the President;
(b) an authorised member;
(c) an authorised officer.
(2) However, an authorised officer must not make a decision about giving leave, and must instead arrange for the President or an authorised member of the Tribunal to make the decision, if:
(a) the officer considers that it is not appropriate for the officer to make the decision; or
(b) a party to the proceeding applies to the officer to have the decision made by a member of the Tribunal.
(3) If an authorised officer decided whether to give a party to a proceeding leave to inspect a document produced under a summons:
(a) a party to the proceeding may apply to the Tribunal, within 7 days or an extended time allowed by the Tribunal, to reconsider the decision; and
(b) the Tribunal may reconsider the decision on such an application or its own initiative; and
(c) the Tribunal may make such order as it thinks fit in relation to the giving of leave to inspect the document.
CONSIDERATION
The power to issue summons is broad and, unsurprisingly, sometimes documents produced under summons may meet the scope of the summons but are unrelated to the proceedings before the Tribunal. In some rare occasions, the documents produced under summons may be completely outside the scope of the summons request. The Applicant submitted that some of the documents produced fall outside the scope of the request as a decision has been made, by the targets of each summons, to release documents that do not expressly refer to the condition of FND. It is not clear at this stage that the documents produced are unrelation to that condition. This may be a question upon which the Tribunal will be guided by expert medical evidence and the Tribunal is not prepared to second-guess the interpretation of the scope of the summons or determine, now, that documents related to the Applicant’s medical conditions and health generally would have no bearing on the diagnosis or impact of FND.
In any event, in reviewing the decision relating to whether the Applicant meets the access criteria for the NDIS, the Tribunal is not limited to considering only an impairment identified by the Applicant and may take into account other evidence that impacts that impairment, or the Applicants circumstances generally, if that evidence is relevant to whether the access criteria are met in this case.
The Tribunal has inspected the portions of the material in relation to which the Applicant requests that leave to inspect for the Respondent not be granted. The Tribunal is not satisfied that those documents, or the redacted portions of those, fall within the category of what is immaterial and irrelevant.
The exception to this determination is the information contained at pages 40 to 43 of the documents produced by the Neurologist. These documents contain irrelevant and inadmissible opinion and may be the subject of a claim for legal professional privilege (although it has not been confirmed that the author was understood to be providing legal advice). These documents will not assist the Tribunal in the determination of the issues in this review and the Tribunal will refused to grant leave to the Respondent to inspect those documents.
As to the balance of the documents to which the Applicant raised an objection, the Applicant has, quite properly, referred to her entitlement to and desire for privacy.[17] However, these intersect with the Respondent’s entitlement to procedural fairness and the Tribunal’s obligation to provide a mechanism for review that is fair[18] and to ensure that the parties have a reasonable opportunity to inspect documents to which the Tribunal may have regard in arriving at its decision.[19] These entitlements or expectations are not absolute, but require a careful balance act in each case. Where the Applicant is seeking the benefit of access to the NDIS it is reasonable that the Tribunal have regard to relevant information about her health and wellbeing that may otherwise have been kept personal and private. The Tribunal notes that the parties owe a substantive obligation not to use documents or information obtained in the course of the Tribunal’s proceedings for a purpose unrelated to the conduct of those proceedings and that obligation is relevant in giving weight to the Applicant’s privacy concerns.[20]
[17] Applicant’s submissions dated 15 August 2022, [113].
[18] AAT Act, s 2A.
[19] Ibid, s 39.
[20] Hearne v Street [2008] HCA 36, [96].
As the Tribunal cannot now determine that the material has no bearing on the review application or that viewing the material would not assist in arriving at the correct or preferable decision in this case, it follows that, in this case, there is no proper basis upon which the Respondent’s leave to inspect those documents should be refused.
Given that the Applicant has expressed concerns about the sensitivity of the material, the Tribunal will delay the granting of leave for the Respondent to inspect the summons documents in order for the Applicant to consider her position and take advice, if she wishes.
CONCLUSION
The Tribunal will grant leave for the Respondent to inspect the summonsed material save for pages 40-43 of the summons document produced by the Neurologist from 6 September 2022.

I certify that the preceding 25 (twenty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member K Buxton.

……………[SGD]……………..
Associate
Dated: 30 August 2022
Final Submissions Received: 15 August 2022
Representative for the Applicant: Speaking Up For You Pty Ltd.
Representative for the Respondent: HWL Ebsworth Lawyers.