Husar and Comcare - [2024] ARTA 4

Husar and Comcare (Compensation) [2024] ARTA 4 (28 November 2024)
Applicant/s:  Emma Jane Husar
Respondent:  Comcare
Tribunal Number:                2024/5955

Tribunal:General Member J Papalia
Place:Perth
Date:28 November 2024
Decision:1. Pursuant to ss 78(1)(b) and 78(6) of the Administrative Review Tribunal Act 2024 (ART Act), the Tribunal permits the Respondent to inspect and copy the documents produced under summons by Ms D Murfett, Sexual Trauma Counselling Perth.
2. Pursuant to s 70(2) of the ART Act, the above material must not be disclosed to any person other than:
i. the parties, their representatives and any other person directly involved with the preparation and conduct of a party’s case; and
ii. to the extent necessary, any person whom a party approaches for the purpose of providing expert evidence in relation to the proceeding; and
iii. members and staff of the Tribunal, and any person performing services for the Tribunal, acting in the course of their duties.

................[Sgd]........................................................
General Member J Papalia
Catchwords
PRACTICE AND PROCEDURE – Summons to produce documents – objection to inspection by issuing party – objection disallowed – implied undertaking – confidentiality orders
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) (repealed)
Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
Parliamentary Business Resources (Consequential and Transitional Provisions) Act 2017 (Cth)
Parliamentary Business Resources Act 2017 (Cth)
Parliamentary Entitlements Act 1990 (Cth) (repealed)
Parliamentary Injury Compensation Scheme Instrument 2016 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth).
Cases
Apache Northwest Pty Ltd v Western Power Corporation (1998) 19 WAR 350
Comcare v Maganga [2008] FCA 285; (2008) 47 AAR 487
Mobil Oil Australia Ltd v Guina Development Pty Ltd [1996] 2 VR 34
National Employers’ Mutual General Association Ltd v Waind & Anor (1978) 1 NSWLR 372
Otter Gold Mines Ltd v McDonald (1997) 76 FCR 467
Re Jelley and Ramsay Health Care Australia Pty Ltd [2024] AATA 3514
Re Nikaghanri and Minister for Immigration, Citizenship and Multicultural Affairs [2024] AATA 3514
Re Skewes v City of Rockingham [2014] WASAT 14
Santos Ltd v Pipelines Authority (SA) (No 2) (1996) 186 LSJS 257
Telstra Corporation Ltd v Hannaford [2006] FCAFC 87; (2006) 151 FCR 253
Treasury Wine Estates Limited v Maurice Blackburn Pty Ltd [2020] FCAFC 226; (2020) 282 FCR 95
Secondary Materials
Administrative Review Tribunal (Common Procedures) Practice Direction 2024
Statement of Reasons
INTRODUCTION

The Applicant is a former member of the House of Representatives for the Division of Lindsay in New South Wales. She seeks compensation for medical treatment in the form of exercise physiology and massage therapy to treat her mental and physical health conditions said to have arisen during, or to have been significantly contributed to by, her parliamentary career.[1] The Applicant objects to the Respondent inspecting clinical records produced to the Tribunal by her social worker under summons.[2] For the following reasons, the Tribunal has determined that permission should be granted to the Respondent to inspect that material, subject to confidentiality orders made to protect the records from further disclosure notwithstanding the implied obligation owed to the Tribunal in respect to documents produced under compulsion.
[1] T-documents, T1.1, p 4.
[2] Applicant’s submissions in relation to the summons issued by the Respondent against Sexual Trauma Counselling Perth, dated 25 November 2024.
BACKGROUND
The Parliamentary Injury Compensation Scheme Instrument 2016 (Cth) (Parliamentary CompensationScheme) was made under s 9A of the Parliamentary Entitlements Act 1990 (Cth) (repealed).
From 1 January 2018, it was taken to have been made under s 41 of the Parliamentary Business Resources Act 2017 (Cth) (PBR Act) and continues to apply to injuries that occur, and diseases that are suffered, in connection with a member’s parliamentary activities before and after the commencement of the PBR Act.[3]
[3] Parliamentary Business Resources (Consequential and Transitional Provisions) Act 2017 (Cth), s 2 and Sch 3 Item 4
The Parliamentary Compensation Scheme makes provision for the liability of the Commonwealth to pay covered persons such amounts as are determined by the Respondent to be payable to the person under the Scheme.[4]
[4] Parliamentary Compensation Scheme, s 19
The Applicant has an accepted claim for certain mental and physical health conditions deemed to have been sustained on 5 November 2018, when she was a member of the Parliament.[5]
[5] T-Documents, T1.3, p 16.
The Respondent accepted, under s 25 of the Parliamentary Compensation Scheme, that the Commonwealth was liable to pay compensation to the Applicant for the cost of medical treatment for those health conditions, namely Pilates sessions until 30 October 2024.[6] However, the delegate declined to accept liability in respect of the cost of exercise physiology and massage therapy.[7]
[6] T-Documents, T1.3, p 19.
[7] T-Documents, T1.3, p 19.
The Applicant sought review of the delegate’s decision before the former Administrative Appeals Tribunal (AAT).[8] The AAT was abolished from 14 October 2024. This Tribunal must now finalise the review in a manner that it considers is efficient and fair.[9]
[8] See Parliamentary Compensation Scheme, s 71.
[9] Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth), ss 2, 4 and Sch 16 Item 24.
On 24 October 2024, a Registrar issued a summons to produce documents to the Applicant’s mental health social worker/counsellor, Ms Murfett, under s 74(1)(b) of the Administrative Review Tribunal Act 2024 (Cth) (ART Act). The summons issued at the request of the Respondent and sought that the social worker produce all of her files in respect of the Applicant to the Tribunal.[10]
[10] Summons to Produce Documents to Ms Murfett, Sexual Trauma Counselling Perth, dated 24 October 2024.
Ms Murfett complied with the summons and produced approximately 200 pages of documentary records to the Tribunal. She did not object to the documents being inspected by the parties.
However, on 8 November 2024, the Applicant, through her solicitor, informed the Tribunal that she objected to the Respondent being granted permission to inspect the documents produced. That notice did not comply with para 6.20 of the Administrative Review Tribunal (Common Procedures) Practice Direction 2024 and the Tribunal subsequently directed the parties to file and serve written submissions in support of their competing positions on inspection.[11]
[11] Direction, dated 14 November 2024.
The Tribunal held an interlocutory hearing by telephone on 27 November 2024, where the parties appeared by their solicitors.
ISSUE
The issue before the Tribunal is whether it should uphold the Applicant’s objection to the Respondent being granted permission to inspect the documents produced under summons in the proceeding.
DISCUSSION
Principles governing determining whether to permit inspection
The parties agreed that the principles identified in Re Nikaghanri and Minister for Immigration, Citizenship and Multicultural Affairs [2024] AATA 3514 at [10]-[15] regarding inspection under s 40B(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (repealed) were correct and that they applied to inspection under s 78 of the ART Act.
Section 55(1) of the ART Act provides that the Tribunal must ensure that each party to a proceeding is given a reasonable opportunity to (a) present their case; (b) access any information or documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding; and (c) make submissions and adduce evidence.
That right to present a case is subject, amongst other things, to the Tribunal’s ability to control the scope of the review, restrict publication or disclosure of information before it, and the discretion to permit inspection of documents produced under summons.[12]
[12] ART Act, ss 53, 55(3)-(4).
The procedure of the Tribunal is generally within the discretion of the Tribunal having regard to the circumstances of the proceeding, the provisions of the ART Act and also the enabling act.[13]
[13] ART Act, s 49. See also Parliamentary Compensation Scheme, ss 72-74.
The parties to a proceeding before the Tribunal have a statutory obligation to assist the Tribunal to achieve its objectives.[14] The Respondent also has an obligation to assist the Tribunal to make the correct or preferable decision in relation to the proceeding.[15] In this case, Comcare are specifically obliged to assist the Tribunal to review their determination as accurately and quickly as possible, and they are to be guided by equity, good conscience and the substantial merits of the case without regard to technicalities.[16]
[14] ART Act, s 56.
[15] ART Act, s 56(1)(a).
[16] Parliamentary Compensation Scheme, ss 75(a) and 77(a).
In considering whether to restrict access to a hearing or to information before the Tribunal, consideration must be given to the principle that it is desirable that evidence given before the Tribunal, and the contents of documents given to the Tribunal, are made available to all of the parties to the proceeding.[17]
[17] ART Act, s 71(2)(c).
In determining whether a document or thing produced under summons may be inspected or copied by a party to the proceeding over an objection,[18] the crucial question is whether the documents have apparent relevance to the issues before the Tribunal.[19] Once apparent relevance is demonstrated, inspection will generally be ordered as a matter of discretion in the absence of good reason being shown to the contrary.[20]
[18] See ART Act, s 78(6).
[19] National Employers’ Mutual General Association Ltd v Waind & Anor (1978) 1 NSWLR 372 at 385; Apache Northwest Pty Ltd v Western Power Corporation (1998) 19 WAR 350 (Apache Northwest) at 373.
[20] Apache Northwest at 374.
In Comcare v Maganga [2008] FCA 285; (2008) 47 AAR 487 (Maganga), the Federal Court confirmed that apparent relevance is a low threshold. A party seeking to inspect documents does not need to establish, on the balance of probabilities, that the documents will establish anything.[21] 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 the issues in the proceedings.[22] It is not confined to whether the documents in question will or may establish an inconsistent statement by a witness giving evidence in the proceeding, or whether the documents themselves will prove a fact in issue.[23]
[21] Maganga at [37].
[22] Maganga at [37].
[23] Maganga at [38].
In addition to relevance, the Tribunal must consider issues of confidentiality and oppression.[24] In Apache Northwest, the Full Court of the Supreme Court of Western Australia referred to the need to balance competing interests but noted that the public interest in the administration of justice should prevail.[25] Their Honours endorsed reasoning given by the Supreme Court of Victoria in Mobil Oil Australia Ltd v Guina Development Pty Ltd [1996] 2 VR 34 at 38-40 and by the Supreme Court of South Australia in Santos Ltd v Pipelines Authority (SA) (No 2) (1996) 186 LSJS 257 at [18] and [21], to the effect that confidentiality would not usually provide a basis to set aside a summons, but may give rise to a need to impose restrictions upon the use which may be made of documents once produced or to mould orders that will distinguish between the parties, their officers, legal advisers and experts.[26] Oppression is to be determined by reference to the breadth of the summons, the definition of the documents involved, and the type and degree of burden placed on the addressee.[27] The interests of the administration of justice in that sense includes that all material relevant to the issues to be decided are available to the parties to enable them to advance their respective cases.[28]
[24] Apache Northwest at 379-381.
[25] Apache Northwest at 379E
[26] Apache Northwest at 379-380
[27] Apache Northwest at 380-381.
[28] Apache Northwest at 381 citing Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corporation Ltd [1984] 1 NSWLR 710 at 719-720.
Issues in the substantive proceeding
The substantive issue in this proceeding is whether the Commonwealth is liable to pay compensation to the Applicant for the cost of medical treatment for her accepted injuries. This requires an assessment of whether the treatment was reasonable for the Applicant to obtain in the circumstances.[29]
[29] Parliamentary Compensation Scheme, s 25.
To understand what the assessment will entail, and having regard to the submissions made by the Applicant regarding relevance (discussed below), it is useful to first set out the history of the Applicant’s claim for compensation and how it has developed:
(a)On 10 July 2019, the Respondent accepted liability, under s 23 of the Parliamentary Compensation Scheme, for the Applicant’s mental health condition.[30] The Respondent subsequently accepted another diagnosis for this condition based upon further medical evidence.[31]
[30] T-documents, T8, pp 50-55.
[31] T-documents, T17, pp 84; T85, p 322.
(b)On 15 September 2022, the Respondent accepted liability, under s 25 of the Parliamentary Compensation Scheme, for the Applicant to undergo an initial assessment with an exercise physiologist to assist with her mood and function.[32] The assessment was undertaken by an accredited exercise physiologist (Mr Waters),[33] and the Respondent then accepted liability for 12 sessions.[34]
[32] T-documents, T19.1, p 90; T22, p 98.
[33] T-documents, T23, pp 100-103.
[34] T-documents, T24, p 104.
(c)On 20 October 2022, the Respondent accepted liability for 14 counselling sessions with Ms Murfett.[35] Additional sessions were subsequently approved.
[35] T-documents, T25-T26, pp 106-109.
(d)On 11 November 2022, the Applicant’s general practitioner, Dr Anthony, recommended exercise physiology on a twice weekly basis to assist with the applicant’s mood and function.[36] This was accepted by the Respondent.[37]
[36] T-documents, T27, pp 111-112.
[37] T-documents, T28, p 113.
(e)On 2 December 2022, the Respondent approved an additional 12 sessions of exercise physiology based upon a progress report prepared by Mr Waters.[38]
[38] T-documents, T29-T30, pp 115-121
(f)On 13 February 2013, the Applicant advised the Respondent that she had been suffering from physical health conditions and provided a report prepared by a consultant rheumatologist, Dr Reed.[39] The Applicant was referred for an independent medical examination by another consultant rheumatologist, Dr Hayes.[40] Dr Hayes considered that the Applicant developed the physical health condition ‘as a result of the work accident in November 2018 which resulted in major psychologist problems’.[41] He considered that they were related conditions.[42]
[39] T-documents, T35-T36, pp 136-138, 141.
[40] T-documents, T43, pp 175
[41] T-documents, T46, p 185. See also pp 186-187.
[42] T-documents, T46, p 188.
(g)On 3 March 2023, the Respondent accepted liability for an additional 3 months of weekly exercise physiology sessions.[43]
[43] T-documents, T37, p 142.
(h)On 16 June 2023, the Respondent accepted liability, under s 23 of the Parliamentary Compensation Scheme, for the Applicant’s physical health condition on the basis that it developed in February 2023 as a complication of her mental health condition.[44] This assessment was subsequently reconsidered by the Respondent, under s 69 of the Parliamentary Compensation Scheme, on the basis of Dr Hayes’ opinion that the physical health condition is directly related to the Applicant’s accepted compensable mental health condition (deemed to have arisen in November 2018).[45]
[44] T-documents, T47, p 195
[45] T-documents, T65, pp 250-251.
(i)Having accepted liability for the Applicant’s physical health condition, the Respondent sought a medical report from Dr Reed regarding the condition, including recommended treatment and asking him to consider the independent report prepared by Dr Hayes.[46]
[46] T-documents, T53, pp 209-211.
(j)Dr Reed provided the Respondent with that requested report on 30 June 2023.[47] Regarding the causative factors for this condition, Dr Reed noted that:[48]
[47] T-documents, T54, pp 212-216.
[48] T-documents, T54, pp 214-215
[Physical health condition] is a complex and multifactorial condition, with different manifestations and contributors in different individuals. Causative factors include genetic predisposition, underlying sleep disorders, childhood trauma, immobility, mental health disorders and inflammatory disease. With regard to the latter, [the physical health condition] has been identified as an associated condition in up to 30% of patients with inflammatory arthritis and 50% of patients with connective tissue, although it is not thought to be due to due to the underlying inflammation per se.
In the case of Ms Hasar, it is conceivable that her [physical] symptoms have been caused or aggravated by a coexistent inflammatory arthritis. It is difficult to opine as to whether her previous work-related stress, and associated [mental health condition], also contributed to the current [physical health symptoms].
…
As outlined in the response to the previous query, it is difficult to ascertain as to whether Ms Husar’s prior work-related stress and associated mental health issues, represent a significant contributing factor to her [physical health symptoms].
I would consider it more probable that an emergent inflammatory arthritis, which is now improving with treatment, could have contributed to the development of co-existent [physical health condition]. In that scenario, the [physical] symptoms would typically be expected to improve with a progressive lessening of joint symptoms, on treatment, and potentially with subsequent treatment directed at any residual features of pain amplification.
Further, I would consider it unlikely that Ms Husar’s [other physical health condition] was caused by stress related to her former employment. Stress can certainly aggravate both [physical health conditions], however a causative role has not been definitively demonstrated. Her positive [test] result would also reflect a degree of genetic (rather than environmental) predisposition, and the timeline of Ms Husar’s reported [physical] symptoms does not favour a direct link with her prior work-related stress.
(k)Dr Reed recommended the Applicant commence a graded programme of increased physical exercise as form of treatment for the physical health condition.[49]
[49] T-documents, T54, p 216.
(l)On 20 July 2023, the Respondent approved an initial consultation and weekly sessions (for a period of one month) with an exercise physiologist to guide the Applicant in the development of an exercise programme.[50]
[50] T-documents, T58, p 227
(m)On the same day, another delegate of the Respondent declined to accept liability for physiotherapy, pilates and massage treatments on the basis of the opinions of both Drs Hayes and Reed regarding the relevance of the Applicant’s other physical health condition and the medication prescribed for that condition.[51]
[51] T-documents, T59, pp 229-230.
(n)On 6 August 2023, Ms Murfett provided the Respondent with a psychology treatment plan for the Applicant (dated 27 July 2023) where she also recommended that consideration be given to supporting the Applicant ‘to make treatment gains in her physical health issues due to the strong correlation between her physical and mental health issues’.[52]
[52] T-documents, T61.1, p 237.
(o)The Respondent accepted liability for an additional 14 sessions with Ms Murfett on 21 September 2023.[53] On the same day, another delegate refused to accept liability for a number of claimed treatments on the basis of their relevance to the compensable conditions, and in respect of massage therapy and physiotherapy because they were not recommended treatment for the compensable conditions.[54]
[53] T-documents, T63, p 245.
[54] T-documents, T64, pp 247-249.
(p)The Applicant suffered a deterioration in her mental health in October 2023.[55] Her next psychology treatment plan was submitted by Ms Murfett on 14 November 2023, where a recommendation was made that a ‘graduated return to exercise program under the guidance and direction of a physiotherapist or Pilates program would assist’.[56]
[55] T-documents, T70.1, p 276.
[56] T-documents, T71.1, p 283.
(q)The Respondent accepted liability for a further 14 sessions with Ms Murfett on 23 November 2023.[57] It also approved related consultations with the Applicant’s general practitioner, treating psychiatrist and four to six monthly rheumatology reviews and associated pharmaceuticals.[58] This treatment was re-approved in May 2024.[59]
[57] T-documents, T73, p 286.
[58] T-documents, T74, p 288.
[59] See T-documents, T98, p 364.
(r)On 11 January 2024, the Respondent received an updated psychiatric assessment report from a consultant psychiatrist, Dr Tavasoli.[60] He relevantly confirmed the Applicant’s present mental health diagnoses and expressed an opinion as to their cause.
[60] T-documents, T76, p 293.
(s)
On 23 January 2024, the Applicant provided the Respondent with a letter authored by a consultant rheumatologist, Dr Johnson, and dated 19 December 2023.[61]
[61] T-documents, T77, p 302

Dr Johnson indicated that the Applicant had obtained benefit form physical therapy in the form of exercise physiologist input, Pilates, Yoga and other forms of exercise in respect of her physical health condition.
(t)On 30 January 2024, the Respondent accepted liability for an additional five exercise physiology sessions with a report to be provided for the purposes of peer review.[62] The delegate relevantly indicates that further information would be sought from Dr Johnson regarding the other recommended treatment. A report was requested by the Respondent on 29 February 2024.[63]
[62] T-documents, T78, p 304.
[63] T-documents, T84, p 320.
(u)On 29 February 2024, Mr Waters provided the Respondent with an updated report.[64]
[64] T-documents, T82, p 312.
(v)On 1 March 2024, the Respondent accepted liability for massage therapy on a weekly basis for one month.[65]
[65] T-documents, T86, p 325.
(w)In March and April 2024, the Respondent accepted liability for treatments aimed at the Applicant’s mental health condition.[66]
[66] T-documents, T88, pp 328-329, T90, p 331.
(x)On 15 April 2024, the Respondent requested that Dr Reed provide another report regarding recommended treatment for the Applicant’s physical health condition.[67] Dr Reed provided a report on 20 April 2024.[68] He relevantly indicated that:
[67] T-documents, T93, pp 349-350
[68] T-documents, T94, p 352.
There is supportive evidence with regard to various active exercise and activity modalities for the treatment of [the physical health condition]. Both yoga and pilates would fall into this category.
I am not aware of any evidence for a beneficial effect of [physical health condition] from passive treatments such as massage, and I would not consider that such intervention would afford any sustained long-term improvement in the symptoms related to this condition.
…
I have previously encouraged Ms Husar to undertake regular (daily) aerobic exercise to maximise her clinical outcomes, and minimise any long-term symptoms related to both [the physical health condition] and her arthritis. I am aware that she is undertaking regular basketball as part of this exercise regime.
I would not consider that she should require additional funded physical support for the condition, as patients should be able to maintain daily exercise of their own volition, without necessarily incurring external costs. If she were to require funded exercise support, however, then it would be reasonable to include a weekly Pilates session. Potential benefits from Yoga are likely to be less significant, due to greater resistance training from Pilates, and I would not recommend passive treatments such as massage.[69]
[69] T-documents, T94, pp 352-353.
(y)Based on that opinion, on 24 April 2024, the Respondent accepted liability for one Pilates session per week for up to six months and declined to pay for further massage or exercise physiology sessions after 30 April 2024.[70]
[70] T-documents, T95, p 355.
(z)On 14 May 2024, the Applicant’s general practitioner attended a case conference with the Respondent and wrote a letter indicating that he would support ongoing exercise physiology, which would ideally be in conjunction with Pilates but that they would preference the exercise physiology over Pilates.[71]
[71] T-documents, T100, p 369.
(aa)On 22 May 2024, a physiotherapist, Ms McPhee, provided the parties with a report, recommending, amongst other things, exercise physiology and massage therapy.[72] Those recommendations were supported by a pain specialist at the same clinic, Dr Agrawal, on 25 May 2024.[73]
(bb)On 5 July 2024, the Respondent accepted liability for an additional five exercise physiology sessions to be completed over an eight-week period.[74]
(cc)The Applicant sought that the Respondent reconsider its liability decisions regarding the Pilates, massage treatment and exercise physiology.[75] In support of that internal review, the Applicant’s solicitor specifically provided the Respondent with a letter authored by Ms Murfett to the Applicant’s general practitioner dated 3 May 2024. In this letter, Ms Murfett indicated to Dr Anthony that:
…I would support the integration of exercise of exercise physiology and Pilates into her current treatment regimen. Research and clinical experience have increasingly supported the use of structured physical activity for both the physiological as well as psychological benefits.
Given the chronic pain Ms Husar experiences due to her [physical health condition], she would benefit from working with an exercise physiologist to develop a program to alleviate her widespread pain, improve sleep quality, and enhance her overall physical function. The management of this condition will have a flow on effect for her psychological wellbeing. Pilates with a focus on control, flexibility, and mindfulness, would be particularly beneficial for our patient’s conditions. The emphasis of Pilates on controlled breathing and alignment, can help manage symptoms of [the Applicant’s mental health condition] by promoting relaxation and mental focus. The gentle stretching and strengthening movements of Pilates can reduce pain and stiffness while improving muscle strength without over-exertion The meditative aspects of Pilates also support mental health stability, crucial for managing [the Applicant’s mental health condition].
The incorporation of these therapies could potentially reduce Ms Husar’s dependence on pharmacotherapy and the associated side effects, offering a holistic approach to her ongoing health issues. Furthermore, both exercise physiology and Pilates can be tailored to her individual capabilities and limitations, this providing a personalised and safe approach to increasing physical activity.
(dd)On 12 July 2024, the delegate found, on redetermination of the 24 April 2024 decision, that Pilates was reasonable medical treatment for the Applicant to obtain in the circumstances but found that massage therapy and exercise physiology were not. In making that assessment, the delegate placed particular regard on the opinion of Dr Reed dated 20 April 2024 and on oral advice given by the exercise physiologist.[76]
(ee)On 31 July 2024, the Respondent separately sought Dr Agrawal’s advice regarding the Applicant’s diagnoses, medical treatment, and rehabilitation.[77] Dr Agrawal declined to provide that requested advice on 6 August 2024.[78]
(ff)On 6 August 2028, the Applicant’s general practitioner (Dr Anthony) submitted a certificate for capacity for work, recommending amongst other things that the Applicant have physiotherapy/clinical Pilates/exercise physiology two to three times weekly to manager her physical health condition.[79]
(gg)On 15 August 2024, the Applicant commenced these proceedings.[80]
[72] T-documents, T102.1, p 378.
[73] T-documents, T102.2, pp 380-381.
[74] T-documents, T104, p 383.
[75] T-documents, T103, p 382, T105, p 385.
[76] T-documents, T1.3, pp 17-19.
[77] T-documents, T108-T109, pp 394-402.
[78] T-documents, T112, p 405.
[79] T-documents, T113, p 407.
[80] See T-documents, T114, pp 409-410.
Applicant’s submissions

The Applicant submitted that the issue in this proceeding was the reasonableness of two specific forms of treatment, where ‘clearly this treatment was in relation to the physical condition that was accepted’. The premise of the objection was that there was an extensive number of other practitioners that are available to give or provide evidence in relation to this issue. It was put that there would be no or minimal value to be derived from Ms Murfett’s opinion regarding the reasonableness of the requested treatment given her expertise. The Applicant identified the eight other medical or health professionals who have given opinions to the Respondent and whose opinions they said would be more relevant and therefore make Ms Murfett’s opinion insignificant.
Mr White observed that the material produced to the Tribunal by Ms Murfett went back to 2020, and he submitted that these records would not be of any relevance or assistance in addressing the central issue before the Tribunal. It was put to Mr White by the Tribunal that the Applicant had relied upon Ms Murfett’s opinion regarding the requested treatment in support of the internal review. Mr White submitted that those comments were outside of Ms Murfett’s expertise and thereby could not be influential.
The Tribunal raised with Mr White the fact that the Applicant’s physical health condition appeared to be related to her mental health conditions and that this was the basis of the Respondent’s acceptance of liability under s 23 of the Parliamentary Compensation Scheme, and therefore for which compensation for medical treatment arises under s 25. Mr White accepted that there was some correlation between the conditions but submitted that the dispute before the Tribunal was still a physical condition at a particular point in time in 2024.
Lastly, it was put by the Applicant that there was good reason not to exercise the discretion to permit inspection because of the limited relevance of the material, and that, should the Tribunal be minded to permit inspection, there were identified portions of the consultation notes (by date) that were confidential and irrelevant to the requested medical treatment and to the compensable injuries.
Respondent’s submissions
The Respondent submitted that the material likely to have been produced under summons by Ms Murfett had apparent relevance to the issues in the proceedings. It was put that treatment records in compensation matters are often relevant for a number of reasons, including that the Tribunal would be required to assess whether an applicant’s claimed conditions were contributed to a significant degree by their employment. This would involve consideration of the usual factors in determining whether the claimed condition was a ‘disease’, and that the Tribunal would be required to review the Applicant’s entire medical history in making that assessment, with the expectation that the medical experts to be called had also done so.[81]
[81] Citing Re Jelley and Ramsay Health Care Australia Pty Ltd [2024] AATA 3514 at [21].
Mr Watts submitted that the Tribunal would be required to consider whether the treatment is first sought for a compensable injury and then whether it is reasonable to obtain in the circumstances. Ms Murfett’s records are relevant to this issue because the Applicant has previously sought compensation for the exercise physiology for her psychiatric conditions, and that it was the Respondent’s understanding that the Applicant had contended that treatment continued to be in part for her psychiatric conditions. The Applicant in fact received compensation for exercise physiology prior to liability being accepted for the physical health condition. Therefore, the submission made by the Applicant that the issues before the Tribunal related solely to medical treatment for physical health conditions was not correct.
Mr Watts observed that the Applicant’s mental health condition was the causal link between the Applicant’s physical health condition and the Parliamentary Compensation Scheme. Reference was made to Telstra Corporation Ltd v Hannaford [2006] FCAFC 87; (2006) 151 FCR 253 and the proposition that the Tribunal could make findings of fact that are inconsistent with earlier findings made on which the original decision accepting liability was based. Mr Watts submitted that the tests that apply in the Parliamentary Compensation Scheme are very similar to those that apply under the Safety, Rehabilitation and Compensation Act 1988 (Cth).
It was noted by Mr Watts that the original acceptance of liability for the Applicant’s mental health condition was the assessment made by the Respondent that this was related to her Parliamentary activities. The confidential issues identified by the Applicant, for which she resists disclosure, may obviously be another matter for determination as to whether the Applicant’s psychiatric ailment, or any other secondary ailment, for which she seeks treatment is causally related to her covered activities.
Mr Watts submitted that Ms Murfett’s clinical notes would be relevant to whether the medical treatment sought by the Applicant is reasonable in the circumstances, particularly where the social worker has been treating the Applicant for some time and can be expected to speak to whether the exercise physiology has been effective to date in alleviating the Applicant’s symptoms. Moreover, Ms Murfett has already expressed views on that requested treatment in November 2023 and May 2024. The Respondent submitted that the clinical records would assist the Tribunal and any of the medical experts that are briefed to give evidence in this matter.
Lastly, Mr Watts observed that the parties would be subject to an implied undertaking in respect of the material produced by Ms Murfett until the documents are tendered in evidence. The Respondent did not oppose the Tribunal making confidentiality orders in respect of the material if they were thought to be appropriate.
Outcome
The Tribunal is satisfied that the material produced under summons by Ms Murfett has apparent relevance to the substantive issues in the proceeding. There is a documented link between the Applicant’s physical and mental health conditions. The Tribunal does not accept that it can or should divorce the two when assessing apparent relevance at this stage of the proceeding. As submitted by the Respondent, the Tribunal will be required to determine whether the Applicant has an injury or disease for the purposes of the Parliamentary Compensation Scheme. The reasonableness of medical treatment for any compensable injury will be dependent upon a variety of factors including the nature of the injury. Ms Murfett’s opinion and her underlying clinical notes may be relevant to the Applicant’s health conditions and their cause, treatment, and prognosis. It will ultimately be a matter for the Tribunal as to what weight it gives any evidence that is tendered in the substantive review. There is not good reason to refuse the Respondent permission to inspect these apparently relevant documents. The objection will be disallowed, and permission granted for the Respondent to inspect and copy the material.
The Tribunal is nevertheless mindful that the documents are confidential counselling records and that they disclose matters of a sensitive nature that may or may not have arisen out of, or in the course of, the Applicant’s parliamentary activities. Whilst the parties would be subject to an implied undertaking in respect of this material,[82] this obligation ceases when documents have been admitted into evidence and have entered the public domain.[83] Accordingly, the Tribunal has decided that it is appropriate for it to make confidentiality orders restricting access to that information above and beyond the implied undertaking.
[82] See Otter Gold Mines Ltd v McDonald (1997) 76 FCR 467 at 471-473; Re Skewes v City of Rockingham [2014] WASAT 14 at [16]-[18]; see also Administrative Review Tribunal (Common Procedures) Practice Direction 2024, [6.21]-[6.27].
[83] Treasury Wine Estates Limited v Maurice Blackburn Pty Ltd [2020] FCAFC 226; (2020) 282 FCR 95 at [83]

36. I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for the decision herein of General Member J Papalia

....................[Sgd]......................................
Associate
Dated: 28 November 2024

Date of hearing: 27 November 2024

Solicitor for the Applicant: Mr T White, Tindall Gask Bentley Lawyers

Solicitor for the Respondent:
Mr J Watts, Australian Government Solicitor

Date of hearing:	27 November 2024
Solicitor for the Applicant:	Mr T White, Tindall Gask Bentley Lawyers
Solicitor for the Respondent:	Mr J Watts, Australian Government Solicitor