Crosby and Comcare (Compensation) - [2023] AATA 4139

Crosby and Comcare (Compensation) [2023] AATA 4139 (15 December 2023)
Division:GENERAL DIVISION
File Number(s): 2023/2581, 2023/6641
Re:Raphaella Crosby
APPLICANT

ComcareAnd
RESPONDENT

INTERLOCUTORY DECISION
Tribunal:Mr S. Webb, Member
Date:15 December 2023
Place:Canberra

Dr Crosby’s objection to the summons in respect of the Prince of Wales Hospital is upheld and the summons is vacated.
Dr Crosby’s objection to the summons in respect of the Royal Hospital for Women is upheld and the summons is vacated.
Dr Crosby’s objections to summons in respect of the following entities are not upheld:
(a)188 Medical;
(b)561 Medical Practice;
(c)Bondi Doctors;
(d)Dr Arman Sabet;
(e)Mr Rao Kolli;
(f)East Neurology;
(g)Faulkner Street Medical Practice;
(h)Helensvale Plaza Medical Centre;
(i)Park Family Practice;
(j)Royal Prince Alfred Hospital;
(k)St Vincent’s Clinic;
(l)Strive Health and Physiotherapy; and
(m)Westmead Hospital.
……………………………………………
Mr S. Webb, Member
Catchwords
PRACTICE AND PROCEDURE – compensation for injury – psychological and physical ailments – aggravation – application for review – requests to summons medical records – objections to summons – relevant principles - right to privacy – apparent relevance – legitimate forensic purpose – objections upheld in part
Legislation
Administrative Appeals Tribunal Act 1975 ss 2A, 35, 37, 39, 40A, 40B
Health Records and Information Privacy Act (NSW) 2002 ss 5, 13
Privacy Act 1988, Schedule 1, Part 3, ss 6.1, 6.2
Safety, Rehabilitation and Compensation Act 1988 ss 5A, 5B, 14
Cases
Comcare v Maganga [2008] FCA 285
BrisConnections Finance Pty Ltd (Receiver and Manager Appointed) v Arup Pty Ltd [2016] FCA 906
Hunt v Wark (1985) 40 SASR 489
Jack Brabham Engines Pty Ltd v Beare [2010] FCA 35
Lakatoi Universal Pty Limited and Ors v Walker and Ors [1998] NSWSC 470
Montenegro v Legal Profession Admission Board [2022] NSWSC 1100
Panagiotou and TNT Australia Pty Ltd [2011] AATA 565
Rhinehart v Rhinehart [2018] NSWSC 1102
Secretary, Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145
South Pacific Hotel Services Inc v Southern Pacific Hotel Corporation Ltd [1984] 1 NSWLR
Trade Practices Commission v Arnotts Pty Ltd & Ors [1989] FCA 248
Wong v Sklavos [2014] FCAFC 120
ZFCC and Comcare [2018] AATA 1358
REASONS FOR DECISION
Mr S. Webb, Member
15 December 2023
Dr Raphaella Crosby claimed compensation in respect of alleged injuries in employment by the Australian Pesticides and Veterinary Medicines Authority (Employer). Comcare decided by primary determinations and on reconsideration to refuse Dr Crosby’s compensation claim. Dr Crosby applied for review of these decisions by the Tribunal.
There are two applications for review in the Tribunal: application 2023/2581 in respect of decisions declining liability for aggravation of Generalised Anxiety Disorder; and application 2023/6641 in respect of decisions declining liability for aggravation of Migraine. In each application, documents have been lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act) (T documents). For clarity, I will refer to the T documents in application 2023/6641 as ‘BT documents’.
In the course of the proceedings, Comcare requested the Tribunal to summons Dr Crosby’s medical records from 15 entities. Dr Crosby objected to these requests.
It is Dr Crosby’s objections which are the subject of this interlocutory decision, alone.
Background and procedural facts
On 19 December 2022, Dr Crosby lodged a compensation claim.[1] The claim included the following information:
[1] T5.
What is the condition that you are claiming for?
Stress/workplace bullying caused exacerbation of my anxiety and migraine
Are you claiming for a psychological injury?
Yes – I am claiming for a psychological injury
If claiming for a physical injury or disease, which parts of your body are affected?
Legs, brain
What tasks were you doing when you were injured?
Normal office work duties
What happened and how were you injured?
workplace [sic] bullying and stress caused exacerbation of anxiety and migraine (believed that migraine may be cause of leg/coordination issues)
When did you first notice your symptoms/injury?
[2] T5, folio 22.
17/10/2022 4:00 PM [2]
Dr Crosby set out the following timeline of alleged events:
20/6/2022 Started at APVMA
19/8/2022 Attended meeting while sick
15/9/2022 Targeted bullying began
17/10/2022 Yelled at in meeting, experienced significant anxiety/depression event
21/10/2022 Banned from talking to colleagues
22/10/2022 Began having issues with my legs and coordination
11/11/2022 made aware of cyberstalking, raised harassment complaint with HR
and made union aware
29/11/2022 lodged formal complaint with HR (provided)
1/12/2022 saw Dr Enoch Chan re neurological issues and lack of coordination
5/12/2022 performance meeting with 3 hours notice
13/12/2022 performance meeting to discuss probation called with 90 minutes
notice, canceled [sic] when supervisor refused to reschedule so a union delegate
could attend; given draft probation report recommending my dismissal and given
until 2pm Thursday to respond (provided)
15/2/2022 mental breakdown, consulted Dr Salma Ali who gave me a week off
and put safety plan in place
16/12/2022 called by HR director to advise of termination effective immediately[3]
[3] T6, folio 27.
On 3 February 2023, the Employer provided a response to the claim, disputing the events Dr Crosby alleged and setting out relevant allegedly factual matters.[4]
[4] T12.
On 20 February 2023, Comcare issued a primary determination declining Dr Crosby’s claim in respect of aggravation of Generalised Anxiety Disorder.[5] Comcare was satisfied Dr Crosby’s employment significantly contributed to aggravation of Generalised Anxiety Disorder but concluded this was not an injury, as it was the result of reasonable administrative action undertaken in a reasonable manner in respect of her employment. Dr Crosby requested reconsideration of the determination.
[5] T16.
On 23 March 2023, Comcare issued a reconsideration decision affirming the determination.[6] On 20 April 2023, Dr Crosby lodged an application for review of this reconsideration decision by the Tribunal.
[6] T1.1.
On 18 April 2023, Comcare issued a determination declining liability for aggravation of Migraine.[7] The decision-maker was not satisfied Dr Crosby’s employment significantly contributed to aggravation of Migraine. Dr Crosby requested reconsideration of this determination.
[7] BT4.
On 11 July 2023, Comcare issued a reconsideration decision to affirm the 18 April 2023 determination.[8] On 8 September 2023, Dr Crosby lodged an application for review of this reconsideration decision by the Tribunal.
[8] BT1.1.
On 21 June 2023, Comcare requested the Tribunal to summons records from:
a)Armidale Hospital;
b)Armidale Medical Centre;
c)Judith Withers, a psychologist;
d)Services Australia; and
e)St Vincent’s Hospital.
On 27 June 2023, the Tribunal sealed and issued each summons.
Ms Withers informed the Tribunal no records could be produced as the 7-year retention period had elapsed and the records had been destroyed.
Documents were produced by St Vincent’s Hospital, Services Australia, Armidale Hospital and Armidale Medical Centre. Inspection orders were made. Dr Crosby was granted first access and, subject to objection, Comcare was granted leave to inspect the produced documents thereafter.
Dr Crosby did not object to Comcare inspecting the documents produced.
Summons requests
On 20 October 2023, Comcare lodged 15 further requests for the Tribunal to summons records from:
(a)188 Medical;
(b)561 Medical Practice;
(c)Bondi Doctors;
(d)Dr Arman Sabet;
(e)Mr Rao Kolli;
(f)East Neurology;
(g)Faulkner Street Medical Practice;
(h)Helensvale Plaza Medical Centre;
(i)Park Family Practice;
(j)Prince of Wales Hospital;
(k)Royal Hospital for Women;
(l)Royal Prince Alfred Hospital;
(m)St Vincent’s Clinic;
(n)Strive Health and Physiotherapy; and
(o)Westmead Hospital.
On 24 October 2023, the requested summons were sealed by the Tribunal.
On 25 October 2023, the sealed summons documents were issued and Dr Crosby was notified.
Objection
On 25 October 2023, Dr Crosby’s initial objection was cast in broad terms:
I object. They don’t get any more of my medical history.
All the relevant parties have already provided documentation.
GPs I saw once 5+ years ago, or a neurologist that I have been referred to but cannot see until December, do not need to be harassed by this nonsense. And I am damn sure that my visit to a gynaecologist at Royal Women’s in 2016 is not at all relevant, nor any of your business.
On 8 November 2023, the Tribunal issued directions providing each party with an opportunity to provide written submissions addressing the objection.
On 9 November 2023, Dr Crosby reiterated her objections on grounds of relevance:
You have far more than what is relevant. And I don’t need to see my records to know what is in them. There is absolutely nothing in scope.
On 22 November 2023, Comcare provided detailed written submissions in which it asserted the summons requests were for a legitimate forensic purpose in the proceedings, and there is a real possibility the information sought is of adjectival relevance to the issues to be determined by the Tribunal.
In response to Dr Crosby’s objections, Comcare informed the Tribunal the summons requests in respect of the Royal Hospital for Women and the Prince of Wales Hospital are not pressed.
That being so, the Royal Hospital for Women summons and the Prince of Wales Hospital summons are vacated forthwith and will not be further considered.
Principles
The Tribunal’s summons power is set out in s 40A of the Administrative Appeals Tribunal Act 1975 (AAT Act):
(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.
(2)The President or an authorised member may refuse a request to summon a person.
(3)A person may, before the day specified in the summons, comply with a summons to produce a document or thing by producing the document or thing at the Registry from which the summons was issued. If the person does so, the person is not required to attend the hearing of the proceeding unless:
(a)the summons or another summons requires the person to appear before the Tribunal; or
(b)the Tribunal directs the person to attend the hearing.
As can be seen, the summons power is for the purposes of a proceeding before the Tribunal.
Common law principles relating to subpoenas issued by courts have been applied in respect of summons by the Tribunal, such that the summons must be for a legitimate forensic purpose[9] and the material sought must, at the minimum, have apparent or adjectival relevance to the issues in the principal proceeding.[10] Whether the documents have apparent or adjectival relevance is a matter to be assessed against the substantive issues to be decided in the proceedings and the purposes to which the materials may legitimately be put in the proceedings.
[9] Rhinehart v Rhinehart [2018] NSWSC 1102 at [47].
[10] Secretary, Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 at [65], [80], [89] and [98]; Jack Brabham Engines Pty Ltd v Beare [2010] FCA 35 at [7]-[9].
The thresholds of legitimate forensic purpose and apparent relevance involve two key considerations:
(a)whether there is a real possibility, beyond speculation, the documents could reasonably be expected to throw light on some of the issues in the principal proceedings,[11] and there is a reasonable basis beyond speculation the documents will materially assist on an identified issue,[12] or may assist in the resolution of the issues in the proceedings;[13] and
(b)whether there is reason to suppose that the documents will be capable of being used as evidence or for a legitimate forensic purpose in cross-examination,[14] such that, when viewed realistically, the documents sought have a bearing on an issue which is not unreal, fanciful or speculative, or that the material sought is reasonably likely to add in some way to the relevant evidence in the case, or that it be “on the cards” that the documents sought will materially assist the party at whose request the subpoena has been issued.[15]
[11] Trade Practices Commission v Arnotts Pty Ltd & Ors [1989] FCA 248 at [41].
[12] Montenegro v Legal Profession Admission Board [2022] NSWSC 1100 at [6].
[13] Comcare v Maganga [2008] FCA 285 at [37].
[14] Hunt v Wark (1985) 40 SASR 489 per King CJ at [493].
[15] Wong v Sklavos [2014] FCAFC 120 at [12].
The ambit of apparent relevance is not unlimited. It does not cover materials which have no possible relevance, or which serve no legitimate forensic purpose in the proceedings. A reasonable basis for thinking the materials may have some relevance must be established. Simply trawling through the materials produced in the hope of discovering something of relevance is not appropriate or permissible as this would amount to abuse of the Tribunal’s power.
Once a summons has been issued, subject to determination of any objection, it does not follow the documents will form part of the evidence admitted by the Tribunal when the application is heard. There are four steps involved:
(a)production of the summonsed documents to the Tribunal;
(b)inspection of the summonsed documents, subject to objection and the grant of leave under s 40B(1) of the AAT Act;
(c)use of the documents inspected by a party for the purposes of the proceedings; and
(d)subject to objection, admitting documents (or parts of documents) tendered by a party into evidence at the hearing in the application.
It is only documents in the last step which form part of the evidence before the Tribunal that will be taken into account in the Tribunal’s decision. The threshold of apparent relevance which applies to documents produced under summons is somewhat broader than the relevance threshold which applies when considering the admission of evidence.[16]
[16] BrisConnections Finance Pty Ltd (Receiver and Manager Appointed) v Arup Pty Ltd [2016] FCA 906 at [25].
The Tribunal must ensure that each party has a reasonable opportunity to present their case. As s 39(1) of the AAT Act sets out, this includes giving each party opportunity to inspect and make submissions about relevant documents:
Subject to sections 35, 36 and 36B, the Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents.
It is this and the requirements of procedural fairness, particularly with regard to testing evidence at a hearing, which underlie the entitlement of each party to build an evidentiary mosaic when preparing a case for hearing.[17]
[17] Lakatoi Universal Pty Limited and Ors v Walker and Ors [1998] NSWSC 470 at 497.
It is within this broad framework that the Tribunal’s discretionary power to summons documents must be considered. No doubt, the compulsion to produce documents containing personal information of a person intrudes upon the person’s rights to privacy. There are competing interests, including public interests, which must be considered and weighed. Of the balance required in such circumstances, in South Pacific Hotel Services Inc v Southern Pacific Hotel Corporation Ltd,[18] Clark J said:
“... the need to balance the reasonableness of the burden imposed upon the recipient and the invasion of his private rights with the public interest in the due administration of justice and, in particular, that all material relevant to the issues be available to the parties to enable them to advance their respective cases. There is, in every case, a clash between these competing interests and whilst the balancing exercise to which I have referred must be carried out, it is the latter interest which is predominant.”
[18] South Pacific Hotel Services Inc v Southern Pacific Hotel Corporation Ltd [1984] 1 NSWLR 710 at 719.
There are very many cases in which a person who has claimed compensation for an alleged work injury has objected to production or disclosure of their medical records. The reasons for this can readily be understood as medical records contain detailed personal information of the person, including information disclosed within the confidence of a therapeutic relationship. Nevertheless, by making a claim for compensation in respect of an alleged injury, elements of the claimant’s right to privacy in respect of medical records must surrender where the records are apparently relevant to issues raised by the claim.[19] As was said in Panagiotou and TNT Australia Pty Ltd,[20]
The fact that any applicant must face when applying for review of a decision in the Tribunal is that things that are personal to him or to her must be revealed if they are relevant to the issues raised by his or her application.
[19] ZFCC and Comcare [2018] AATA 1358.
[20] Panagiotou and TNT Australia Pty Ltd [2011] AATA 565 at [24].
The extent to which the person’s medical history and related records are relevant to issues raised by the compensation claim is a matter for consideration in the particular circumstances. These considerations hinge on the threshold or statutory questions raised by the claim which the Tribunal must address, and the factual findings required for that purpose.
Substantive issues
Dr Crosby’s applications for review raise factual and legal issues relating to causation of her claimed injury or injuries and the existence of resulting impairment or incapacity for work. All issues capable of being decided by the reconsideration decision-maker are live issues in the Tribunal review in each application. Dr Crosby’s compensation claim is to be decided afresh by the Tribunal on review.
The substantive issues to be decided by the Tribunal in each application arise under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act). They are:
(a)whether Dr Crosby suffered a ‘disease’ as defined in s 5B(1) of the SRC Act, namely an ailment or an aggravation of an ailment to which her employment contributed to a significant degree; and if so,
(b)whether the ‘disease’ is an ‘injury’ for the purposes of s 5A of the SRC Act, noting the ‘disease’ will not be an ‘injury’ if it resulted from reasonable administrative action undertaken in a reasonable manner in respect of Dr Crosby’s employment; and, if the ‘disease’ is an ‘injury’,
(c)whether the ‘injury’ resulted in impairment or incapacity for work for the purposes of s 14 of the SRC Act.
The first issue requires findings in respect of the existence and contributory causes of each ‘ailment’ or ‘aggravation of an ailment’ under claim. The causal threshold which applies is that of an employment contribution to a significant degree, being a degree which is substantially more than material: s 5B(3). In addressing this issue, the matters set out in s 5B(2) of the SRC Act (and any other relevant matters) should to be taken into account:
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a)the duration of the employment;
(b)the nature of, and particular tasks involved in, the employment;
(c)any predisposition of the employee to the ailment or aggravation;
(d)any activities of the employee not related to the employment;
(e)any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.

Factual findings about such matters are required.
In fairness to each party, the Tribunal cannot proceed on facts asserted by one party. In order to make factual findings, the Tribunal must be reasonably satisfied the asserted facts are raised on probative materials. Each party will be given an opportunity to adduce and test evidence relevant to any asserted facts, including in contradiction of facts which prima facie appear to be established, and to make submissions about their relevance or significance. The question of what is probative is a matter for the Tribunal when the applications come to hearing. That question is a matter for each party to consider when identifying potentially relevant materials, or the sources of such materials, in preparing their respective cases.
The significant degree threshold essentially involves relativity, especially where the ailment under claim may be contributed to by multiple factors. While precision may not be possible when assessing the degree of employment contribution to an ailment, it is important to carefully consider the extent to which, if at all, other factors causally contribute to the ailment. The identification of such factors, and the relative contribution of the employment to the ailment that is claimed as an injury, requires examination and assessment of relevant medical materials and records.
Viewed in this context, medical records which go to the nature of the ailments under claim and the frequency, intensity or pattern of symptoms and contributory factors are likely to be of relevance. In order to make factual findings in respect of the claimed ‘aggravation’[21] of Dr Crosby’s previously existing psychological and migraine ailments by circumstances in her previous employment by the Employer, it will be necessary to consider the nature and history of each ailment. There is a real possibility previous occurrences or patterns of symptoms related to each ailment and the likely causes of such symptoms in the particular circumstances at the time might shed light on the claimed ‘aggravation’. Determining whether each ailment has an episodic character, or a previous pattern of fluctuating symptomatology, may be important when deciding if the claimed aggravation is an episode or a fluctuation of symptoms of the ailment which occurred in the context of the employment, or if it is an acceleration or recurrence of the ailment which was significantly contributed to by the employment. Consequently, any history of Dr Crosby experiencing or seeking treatment for previous psychological or migraine symptoms and the circumstances in which they occurred may be relevant. Previous investigations of her migraine ailment, even those conducted long ago, are likely to assist understanding the nature and progress of the ailment, and related causes of or susceptibility to acceleration, including escalation, or recurrence of symptoms.
[21] ‘Aggravation’ is defined in s 4(1) of the SRC Act.
These considerations are also important when assessing the second substantive issue, namely whether the exclusionary proviso in s 5A(1) of the SRC Act is enlivened in the particular circumstances:
(1)In this Act:
injury means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
[Emphasis added.]
Plainly enough, findings are required which address the factual requirements of the provision. If it is established Dr Crosby suffered a ‘disease’, the Tribunal must determine if the ‘disease’ was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of her employment. In applying the causal ‘as a result of’ threshold, matters of relativity might arise. Relevant medical materials and records and a longitudinal view may be required when assessing any variation in Dr Crosby’s symptoms and contributory factors, including in her employment.
The third substantive issue arises only if it is established Dr Crosby suffered an ‘injury’ within the definition in s 5A of the SRC Act. The question posed by s 14 of the SRC Act is whether the ‘injury’ results in impairment or incapacity for work. In order to answer the question, medical records and the opinions of her treating doctors in respect of ailments and symptoms which may bear upon any impairment or incapacity for work which might be related to the injury she has claimed are likely to be relevant. The period to which attention must be directed in this inquiry commences before the claimed injury and runs to the present day.
Thus, it can be understood the medical records of doctors and practices Dr Crosby consulted for diagnosis and treatment of the ailments under claim have apparent relevance to the causal thresholds that must be applied under s 5A, s 5B and s 14 of the SRC Act. While some of the medical records sought may not have direct relevance to such considerations, there is a real possibility other records will illuminate the pattern, duration, frequency and nature of Dr Crosby’s psychological and migraine ailments and the possible causes of related symptoms.
At this stage of the proceedings, in which each party is given a reasonable opportunity to prepare their case, the apparent relevance of Comcare’s requests to summons records must be viewed through the lens of the three substantive issues the Tribunal must determine.
Consideration of the requests
The basis on which Comcare requests for the Tribunal to summons records from the 13 entities set out in paragraph 17 (excluding the Prince of Wales Hospital and the Royal Hospital for Women) includes the Medicare and Pharmaceutical Benefit Scheme records in Annexure A and the attendances set out in Annexure B of the Respondent’s Submissions in Relation to Summons (Annexures). For privacy reasons, I will not set out the contents of either Annexure in these reasons.
The accuracy of the information in the Annexures has not been tested or seriously challenged by Dr Crosby. It is not necessary to go further to test the reliability of the information for present purposes. I am prepared to accept the information is substantially accurate and I will proceed on that basis.
In consideration of the information in respect of Dr Crosby’s medical practice attendances set out in Annexure B, there is a reasonable basis to conclude each of the 13 entities may hold records of apparent or adjectival relevance to the substantive issues raised by her claim for compensation.
Dr Crosby argues her attendance at the East Maitland Family Medical Centre on two occasions in 2023, well after the claimed injury on or about 17 October 2022, cannot be of relevance. This is not correct. It appears she attended that practice on 18 and 27 May 2023, seven months after the claimed injury and five months after the alleged mental breakdown Dr Crosby referred to in the timeline she provided to Comcare in T6. I am satisfied there is a real possibility the records of these attendances might assist understanding of her medical conditions over the preceding months, within the ambit of her claim, and, in particular, might shed light on the questions of impairment and incapacity to work as a result of the claimed injury.
In the case of the Faulkner Street Medical Practice, it appears likely Dr Crosby attended that practice over three periods from 1998 and, in 2022, a mental health plan was prepared for her. The more recent records are likely to shed light on matters of direct relevance to her claim, whereas the older records from 1998 may be of lesser relevance. Nevertheless, there remains a reasonable basis to conclude the older records are possibly relevant to matters the Tribunal must take into account under s 5B(2) of the SRC Act.
Records of Dr Crosby’s three attendances at the 188 Medical practice in 2021 are likely to shed light on the treatment she obtained. There is a real possibility this will assist understanding the history and progress of her migraine ailment, which the Tribunal should take into account when applying the threshold in s 5B(1) of the SRC Act.
I have reached similar conclusions in respect of Dr Crosby’s apparent attendances at the Helensvale Plaza Medical Centre in 2020 and 2021, her attendances at the Strive Health and Physiotherapy practice in 2019, her attendances at the Park Family Practice from 2012 to 2018, and her attendances at Bondi Doctors from 2012 to 2017. In each of these cases, her attendances appear to have related to her psychological and migraine ailments. Even though her attendances precede the alleged injury for which Dr Crosby has claimed compensation, I am satisfied there is a real possibility records of those attendances might shed light on the history of her psychological and migraine ailments and related symptomatology, and the contributory factors involved.
It appears Dr Crosby attended the 561 Medical Practice in 2011. On the information in Annexure B, she attended for psychological assistance on two occasions. The fact these attendances occurred more than 12 years ago does not diminish the real possibility they may illuminate matters relating to the episodic or fluctuating nature of symptoms, which is of relevance to the matters to be taken into account for the purposes of s 5B of the SRC Act.
There is a reasonable basis for believing records of Dr Crosby’s attendances on Dr Arman Sabet, a neurologist, in 2021 and on Dr Ron Granot of East Neurology in 2012 to 2013 related to her migraine ailment. The records of each neurologist are likely to assist understanding the history, nature and progress of Dr Crosby’s migraine ailment and related symptomatology and contributory factors. These are matters the Tribunal should take into account under s 5B(2) of the SRC Act.
It is likely Dr Crosby’s attendances at the Royal Prince Alfred Hospital from 1990, with consistent attendances in 2012 to 2013, and 2017 to 2018, and her attendances at St Vincent’s Clinic from 2013 to 2018 related to her migraine ailment. There is a real possibility records of these attendances will be of material assistance when making findings about the history of the ailment under s 5B(2) of the SRC Act and applying the threshold in s 5B(1).
There is a real possibility Dr Crosby’s attendance at the Westmead Hospital in 2012 to 2013 may have adjectival relevance to the substantive issue the Tribunal must decide, even though it appears she consulted Dr Vukasovic, Director of Emergency Medicine, and Professor Dwyer, a virologist. It may be significant that these attendances occurred during a period in which Dr Crosby consulted Dr Granot and Associate Professor Nikpour, a neurologist at the Royal Prince Alfred Hospital, in respect of her migraine ailment. While Dr Crosby argues that these medical attendances, treatments and procedures have no bearing on or relevance to her claimed injury, I am satisfied no such conclusion can safely be drawn from the information in the Annexures without access to the records of those attendances and treatments.
Comcare refers records of Dr Crosby’s attendances at IMED Radiology in 2023, Laverty Pathology in 2015 and in 2023, and Douglass Hanly Moir Macquarie Park Lab between 2010 and 2022. These records are not the subject of summons or objection.
I am sympathetic to Dr Crosby’s concerns about intrusions upon her privacy, which most people would share, and her interest in protecting her private medical information from disclosure. Her submissions give clear expression to interests that can readily be understood. Nevertheless, her privacy interests do not outweigh the other considerations I have outlined above, and they are not sufficient reason to refuse to exercise the discretion conferred under s 40A(1) of the AAT Act to issue the 13 summons requested for the purposes of these proceedings.
In conclusion, therefore, Dr Crosby’s objection to the summons in respect of the Prince of Wales Hospital is upheld and the summons is vacated.
Dr Crosby’s objection to the summons in respect of the Royal Hospital for Women is upheld and the summons is vacated.
Otherwise, Dr Crosby’s objections are not upheld in respect of:
(a)188 Medical;
(b)561 Medical Practice;
(c)Bondi Doctors;
(d)Dr Arman Sabet;
(e)Mr Rao Kolli;
(f)East Neurology;
(g)Faulkner Street Medical Practice;
(h)Helensvale Plaza Medical Centre;
(i)Park Family Practice;
(j)Royal Prince Alfred Hospital;
(k)St Vincent’s Clinic;
(l)Strive Health and Physiotherapy; and
(m)Westmead Hospital.
The summons processes in each case will resume. Where documents have been produced under each summons, inspection orders will be made granting Dr Crosby first access and, subject to objection, Comcare access thereafter. Where documents have not yet been produced, the date for production is extended for the period of 14 days from the date of this decision, whereupon inspection orders will be made.
Should Comcare seek to use or to tender in evidence any of the summonsed records, Dr Crosby will have an opportunity to object. If this occurs, her objection will be addressed by the Tribunal at that time, applying the thresholds for admission of material into evidence.
In consideration of the privacy issues alluded to by Dr Crosby, I make two observations.
Firstly, documents produced under summons must not be used for any purpose other than these proceedings.
Secondly, Dr Crosby has not applied for confidentiality orders under s 35(3) or (4) of the AAT Act in respect of her identity or any of the summonsed documents. Should she do so, her application will be assessed on its merits.
Decision
Dr Crosby’s objection to the summons in respect of the Prince of Wales Hospital is upheld and the summons is vacated.
Dr Crosby’s objection to the summons in respect of the Royal Hospital for Women is upheld and the summons is vacated.
Otherwise, Dr Crosby’s objections are not upheld in respect of:
(a)188 Medical;
(b)561 Medical Practice;
(c)Bondi Doctors;
(d)Dr Arman Sabet;
(e)Mr Rao Kolli;
(f)East Neurology;
(g)Faulkner Street Medical Practice;
(h)Helensvale Plaza Medical Centre;
(i)Park Family Practice;
(j)Royal Prince Alfred Hospital;
(k)St Vincent’s Clinic;
(l)Strive Health and Physiotherapy; and
(m)Westmead Hospital.

I certify that the preceding 73 (seventy-three) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member.

........................................................................
Associate
Dated: 15 December 2023

Date final submissions received:

22 November 2023

Applicant:
Self-represented

Solicitor for Respondent: Ms Alexandra Cornfield, Australian Government Solicitor

Date final submissions received:	22 November 2023
Applicant:	Self-represented
Solicitor for Respondent:	Ms Alexandra Cornfield, Australian Government Solicitor