DRXK and National Disability Insurance Agency - [2024] AATA 1269

DRXK and National Disability Insurance Agency [2024] AATA 1269 (27 May 2024)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2023/0077
Re:DRXK
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

INTERLOCUTORY DECISION
Tribunal:Member L Proske
Date:27 May 2024
Place:Adelaide

The Respondent is given leave effective immediately to inspect the documents produced under summons by the medical practice.
..............................[Sgnd]..........................................
Member L Proske
Catchwords
PRACTICE AND PROCEDURE – National Disability Insurance Scheme – objection to a decision to give leave to a party to inspect documents produced under summons – whether documents are of apparent relevance – leave given to inspect documents produced under summons
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
Cases
Comcare v Maganga [2008] FCA 285
Re Panagiotou and TNT Australia Pty Ltd [2011] AATA 565
REASONS FOR DECISION
Member L Proske
INTRODUCTION

The Applicant (DRXK) is a participant of the National Disability Insurance Scheme (NDIS). He is currently 8 years old and lives with his parents and sibling. DRXK is represented in relation to this application by his mother; and DRXK’s mother is assisted by an advocate.
On 17 June 2022, a delegate of the Chief Executive Officer (CEO) of the National Disability Insurance Agency (NDIA) approved a statement of participant supports (SOPS) for DRXK (original decision). DRXK’s mother requested that the NDIA review the original decision; and a reviewer confirmed the original decision on 18 October 2022 (internal review decision). On 6 January 2023, an application was made to the Tribunal for review of the internal review decision.
During the time that this application has been before the Tribunal, there have been 3 alternative dispute resolution events, 4 directions hearings and an interlocutory hearing on 24 May 2024. The application is listed for a substantive hearing in mid-June 2024. The substantive issue to be determined by the Tribunal is whether the requested supports are reasonable and necessary supports in accordance with s 34(1) of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act). The supports in issue on review include a number of capacity building supports, as well as core support.
On 24 April 2024, at the request of the Respondent, a summons to produce documents was issued by the Tribunal under s 40A(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) to a medical practice (MP). MP produced the documents to the Tribunal. On 6 May 2024 the Tribunal determined that the Applicant be given leave to inspect the documents produced by MP from 6 May 2024; and that the Respondent be given leave to inspect the documents produced by MP from 13 May 2024.
On 12 May 2024, DRXK’s mother objected to the Respondent being given leave to inspect the documents produced by MP and provided written submissions in support of that objection. Further submissions in support of that objection were provided by DRXK’s mother’s advocate on 14 May 2024. On 14 May 2024, the Respondent confirmed that they pressed for access to the documents produced by MP and provided submissions in support of that.
An interlocutory hearing was held on 24 May 2024 to reconsider the decision to give the Respondent leave to inspect the documents produced by MP. DRXK’s mother and counsel for the Respondent each made oral submissions relevant to this issue at the interlocutory hearing.
For the reasons below, the Tribunal decides that the Respondent will be given leave effective immediately to inspect the documents produced under summons by MP.
SUBMISSIONS
The grounds for objection as outlined by DRXK’s mother in written and oral submissions can be summarised as follows:
a)    The documents produced are medical records which contain personal and sensitive information, disclosure of which would be an invasion of DRXK’s and DRXK’s family’s privacy.
b)    Reading the documents produced has been extremely upsetting and triggering for DRXK’s parents and any use of this material by the Respondent in these proceedings would perpetuate this trauma.
c)    The expanse of the documents produced and the nature of the information therein are irrelevant to the supports in issue on review.
d)    The Respondent’s request to issue summons is an abuse of process.
e)    The Respondent’s request to issue summons is based on opinions expressed by an independent medical expert (Dr P) engaged by the Respondent to prepare a report for the purposes of this proceeding who did not properly read the information provided to him.
DRXK’s mother’s advocate, in their email dated 14 May 2024, submitted that the Respondent has requested summons be issued based on opinions expressed in Dr P’s report, which contained contradictory information. It was further submitted that any suggestion by the Respondent that the Tribunal requires independent confirmation of matters relating to DRXK’s treatment, by implication suggests DRXK cannot be trusted.
The Respondent provided written and oral submissions in support of a decision to give them leave to inspect the documents produced. These can be summarised as follows:
a)    The summons was requested, on counsel’s advice, after a request had been made to DRXK’s mother to provide clinical notes and records from DRXK’s general practitioner, including correspondence or reports from DRXK’s paediatrician.
b)    A key issue on review is whether Applied Behaviour Analysis (ABA) is a reasonable and necessary support. That will be influenced by a range of factors including whether what is proposed will be effective and beneficial; and represents value for money. The medical records can reasonably be expected to cast light on what the medical experts are saying are DRXK’s challenges, what has been recommended to address them and what has been trialled to address them.
c)    A concern arising for the Respondent is a lack of paediatric support for the requested support; and it has been indicated DRXK’s paediatrician will not be called to give oral evidence. That highlights the relevance of the records that have been sought in assisting the Tribunal to digest the issues and make findings in respect of them.
d)    The Respondent is sensitive to privacy considerations, does not intend to cause distress to DRXK’s family and will not do anything improper with the records. They only seek to put relevant information before the Tribunal to enable the Tribunal to perform its task.
CONSIDERATION
Section 40A(1) of the AAT Act provides that the Tribunal may summons a person to produce documents; and s 40A(3) of the AAT Act provides that a person may comply with a summons to produce a document by producing the document at the Registry from which the summons was issued.
Section 40B(1) provides that the Tribunal may give a party to a proceeding leave to inspect a document produced under a summons in relation to a proceeding. Under s 40B(3) a party to the proceeding may apply to the Tribunal to reconsider that decision; and the Tribunal may reconsider the decision on such an application or its own initiative, and may make such order as it thinks fit in relation to the giving of leave to inspect the document.
The Tribunal has considered the written and oral submissions made by the parties in advance of and at the interlocutory hearing held on 24 May 2024.
The Tribunal appreciates that DRXK’s mother considers that the documents produced under summons by MP are private and sensitive; and accepts that reading information contained in those documents has been distressing. This was acknowledged by the Respondent at the interlocutory hearing. However, as was noted by Deputy President Forgie in Re Panagiotou and TNT Australia Pty Ltd [2011] AATA 565, in making an application to the Tribunal the fact an applicant must face is that personal information will sometimes need to be disclosed during a review as relevant to the issues arising on review.[1]
[1] Re Panagiotou and TNT Australia Pty Ltd [2011] AATA 565, [24].
The Tribunal does not accept that in making the request for summons, or pressing access to the documents produced under summons, there has been any abuse of process. Nor does the Tribunal consider that in determining this interlocutory issue, in advance of a substantive hearing, it would be appropriate to consider and make findings in relation to concerns raised on behalf of DRXK regarding Dr P’s report.
The Tribunal is mindful that a decision to deny the Respondent leave to inspect some or all the produced documents, could well deny the Respondent a reasonable opportunity to present their case and to test evidence. Such an outcome would be contrary to s 39(1) of the AAT Act, which provides that the Tribunal is required to ensure that every party to a proceeding before it is given a reasonable opportunity to present their 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.
In Comcare v Maganga [2008] FCA 285, Justice Bennett discussed the relevant test when deciding whether to allow documents produced under summons to be inspected:
‘A party seeking to inspect documents does not need to establish, on the basis of probabilities, that the documents will establish anything … Rather, the test of relevance is whether the documents relate to the proceedings such that there is a real possibility that they may assist in the resolution of issues in the proceeding …. The Tribunal may allow documents to be inspected if they are apparently relevant or are on the subject matter of the litigation … or if they might be used for a legitimate forensic purpose in cross-examination.’[2]
[2] Comcare v Maganga [2008] FCA 285, [37]-[38].
The Tribunal is satisfied that the expanse and nature of the documents produced under summons by MP have apparent relevance to the issues arising on review, to be determined by the Tribunal. Accordingly, the Tribunal gives the Respondent leave, effective immediately, to inspect all of the documents produced under summons by MP.
DECISION
The Respondent is given leave effective immediately to inspect the documents produced under summons by MP.
I certify that the preceding nineteen (19)
paragraphs are a true copy of the
reasons for the decision herein of
Member L Proske
…[sgnd]…………………………..
Associate
Dated: 27 May 2024
Date of hearing:  24 May 2024
Advocate for the Applicant:      Bob Buckley
Autism Aspergers Advocacy Australia
Advocate for the Respondent:  John Bird
Blackburn Chambers