Jones and National Disability Insurance Agency - [2024] AATA 1142

Jones and National Disability Insurance Agency [2024] AATA 1142 (14 May 2024)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2022/3064
Re:Joshua Jones
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Deputy President Mischin
Date:14 May 2024
Place:Perth

The Tribunal:
1.Refuses the Applicant’s request that it issue a summons to produce documents directed to HWL Ebsworth Lawyers;
2.Grants the Applicant’s request to issue a summons to produce documents directed to Nollamara Medical Centre;
3.Refuses the Applicant’s request that it issue a summons to produce documents directed to Royal Perth Bentley Group;

4.Refuses the Applicant’s request that it issue a summons to produce documents directed to Sir Charles Gairdner Hospital.

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Deputy President Mischin
CATCHWORDS
PRACTICE & PROCEDURE – NATIONAL DISABILITY INSURANCE SCHEME – interlocutory application – summons to produce – objection to request by Applicant to issue summons to produce documents directed to Respondent’s lawyers – objection to request by Applicant to issue summonses to produce documents directed to medical, hospital and allied health service providers
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), sections 37, 38AA, 40A(1)(b), 40A(2)
National Disability Insurance Scheme Act 2013 (Cth), section 21
CASES

Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250
Bird and Military Rehabilitation and Compensation Commission [2006] AATA 109
Caltex Refining Co Pty Ltd v The Amalgamated Metal Workers’ Union (6 December 1990 unreported) BC9003718
Comcare v Maganga [2008] FCA 285
Cosco Holdings Pty Ltd v Federal Commissioner ofTaxation[1997] FCA 1504; (1997) 37 ATR 432, BC9707273
Fried v National Australia Bank (2000) 175 ALR 194
Interchase Corporation Ltd (in liq) v Grosvenor Hill (Queensland) Pty Ltd (No 1) [1999] 1 Qd R 141
Marnotta Pty Ltd and Secretary, Department of Health and Ageing [2004] AATA 800
Treasurer of the Commonwealth of Australia v Canwest Global Communications Corp & Ors [1997] FCA 578, BC9702863
ML Ubase Holdings Co Ltd v Trigem Computer Inc (2007) 69 NSWLR 577
REASONS FOR DECISION
Deputy President Mischin
14 May 2024

The Applicant in this matter, Mr Jones, has applied to the Tribunal for a review of an internal decision made by the National Disability Insurance Agency (NDIA or the Respondent) on 19 April 2022. The Application for review by the Tribunal of that internal decision was filed later that same day. In issue is whether the Applicant should be given access to the National Disability Insurance Scheme (Scheme).
The Applicant sought access to the Scheme by reason of impairments arising from several conditions. The Respondent accepted that the Applicant has a disability attributable to impairments arising from lumbar spine degeneration, cervical spine stenosis, asthma, and Post-Traumatic Stress Disorder (PTSD). The NDIA did not accept that the Applicant’s Type-2 diabetes, hypertension and chronic kidney failure gave rise to a disability.
The NDIA, although satisfied that certain of the Applicant’s conditions met the criteria for access to the Scheme, was not satisfied that the impairments:
(a)were, or were likely to be, permanent;
(b)resulted in a substantially reduce functional capacity in a relevant activity; or
(c)were likely to require lifetime support from the Scheme.
The NDIA was also not satisfied that the Applicant met the early intervention requirements for entry to the Scheme.
Pursuant to its obligation under section 37(1) of the Administrative Tribunal Act 1975 (Cth) (AAT Act), the Respondent lodged documents in its possession or under its control relevant to the review (‘T-documents’). These, materially, consisted of:
(a)the Applicant’s application for review of the Respondent’s decision;[1]
(b)the Respondent’s decision at first instance[2] and its internal review decision;[3]
(c)a supporting evidence form completed on behalf of the Applicant by general medical practitioner Dr Mujeer Rehman and dated 20 September 2018;[4] and
(d)an application form completed on behalf of the Applicant by general medical practitioner Dr Azadeh Amini Najafabadi and dated 2 September 2021.[5]
[1] T-documents T1 1-5.
[2] T-documents T5 61-65.
[3] T-documents T2 16-25.
[4] T-documents T3 26-31.
[5] T-documents T4 33-60.
A significant further amount of documentation has subsequently been produced under summons from an array of medical and allied health entities, including from Sir Charles Gairdner Hospital, the Nollamara Medical Centre, and the East Metropolitan Health Service. The Applicant has also filed additional material.
On 31 August 2023, the Applicant filed with the Tribunal four Request to Issue Summons forms and four related proposed Summons to Produce Documents forms for:
(a)a summons to the Respondent’s legal representatives (HWL Ebsworth Lawyers) to produce 'ALL Record's and Referrals and notes made in relation to IME [Independent Medical Expert] appointments including medical evidence provided to the IME doctor's' [sic];
(b)a summons to Nollamara Medical Centre to produce: 'ALL medical records of MR JOSHUA JONES (DOB [redacted]) for the period August 2022 to Current including all Correspondence Results, Notes, and Clinical records' [sic];
(c)a summons to Royal Perth Bentley Group[6] to produce: 'ALL medical records of MR JOSHUA JONES (DOB [redacted]) full medical Record including notes treatment notes referrals and results’ [sic]; and
(d)a summons to Sir Charles Gairdner Hospital to produce: 'ALL medical records of MR JOSHUA JONES (DOB [redacted]) full medical Record including notes treatment notes referrals and results’ [sic].
[6] The Applicant may mean the East Metropolitan Health Service, which appears to embrace the Bentley Health Service, Swan District Hospital, and Royal Perth Hospital, and which has produced other documents relating to the Applicant.
In the Request to Issue Summons form lodged with respect to the summons to HWL Ebsworth Lawyers, the Applicant gives as the reasons for his request only a recital of what is being sought under the summons. In respect of the other summonses, the Applicant gives as his reasons for each request ‘To obtain updated And upto date information Based on medical evidence and reports from the period of last summons to current August 2022 to August 2023’ [sic].
On 1 September 2023, the Tribunal wrote to the parties requesting their attendance at a hearing to hear from each of them in relation to the Applicant’s request to issue the summonses. The Applicant advised that due to his employment arrangements he would be unable to attend a hearing. In light of the Applicant’s inability to attend a hearing, the Tribunal issued directions for the parties to file written submissions in support of their respective positions so that the Tribunal may decide the issue on the material before it.
In an email to the Tribunal, the Applicant submitted [sic passim]:[7]
Regarding the request for summons it appears that the IME doctors did not have all the medical evidence received during the summons , I have received a device from the IME doctors rooms which shows only 500 pages of evidence was provided, hence the reason for the summons to HWLE ,
The reason for the .summons to the other parties further medical evidence is had forgot to include joondalup health campus , and the most update to date information was not available at time of IME the second issues are that as not all information was obtained by the IME doctors and the fact that there is a lot of mis information in the reports that represent either false statements and theories as such I request these documents to obtain further information for a review which I have sought advice from legal aid in relation to objecting to the IME doctors
[7] Applicant’s submissions dated 28 September 2023.
The Respondent, in turn, filed submissions opposing the issue of summonses. The Respondent submits that the Tribunal should refuse the Applicant’s request to issue a summons to the Respondent’s legal representative on the bases that:
(a)it would be unusual to seek production of relevant documents from a party’s legal representative by summons;[8]
(b)the Respondent has a present and continuing obligation to provide relevant documents to the Tribunal;[9]
(c)it is not clear how communications between the legal representative and the IMEs it has engaged would provide evidence that would assist the Tribunal in determining whether the Applicant satisfies the access criteria for entry to the Scheme;[10] and
(d)to the extent that communications between the legal representative and the IMEs were for the purpose of the provision of legal advice to the Respondent, they are likely to be privileged communications.[11]
[8] Respondent’s submissions filed 19 October 2023 at [19].
[9] Ibid at [19].
[10] Ibid at [20].
[11] Ibid at [20].
The Respondent further submits that the Tribunal should refuse the Applicant’s request to issue summonses to the Nollamara Medical Centre, Royal Perth Bentley Group, and Sir Charles Gairdner Hospital, on the bases that:
(a)the evidence before the Tribunal is voluminous and already summonsed material exceeds approximately 6,150 pages;[12]
(b)the scope of documents requested in the summonses is broad and:
(i)is not directly relevant to the treatment of the Applicant’s conditions or impairments being relied on for access to the Scheme;[13] and/or
(ii)will be unlikely to throw light on the substantive issues to be determined by the Tribunal.[14]
[12] Ibid at [21].
[13] Ibid at [22(a)].
[14] Ibid at [22(b)].
CONSIDERATION
The general principles that apply to the issue of subpoenas by a Court also apply to the issue of summonses to produce documents or things by the Tribunal.
Section 40A(1)(b) of the AAT Act empowers the Tribunal, for the purposes of a proceedings before the Tribunal, to summon a person to produce any document or other thing specified in the summons. The Tribunal may refuse a request to summon a person: section 40A(2).
The basis upon which the discretion to issue a summons to produce should be exercised has been expressed in a variety of ways, but the fundamental touchstone is relevance to the issue or issues to be determined in the proceedings.
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 proceedings.[15]
or
…that the material sought could reasonably be expected to throw light on some of the issues in the principal proceedings.[16]
[15] Comcare v Maganga [2008] FCA 285 (Maganga) at [37].
[16] Cosco Holdings Pty Ltd v Federal Commissioner ofTaxation[1997] FCA 1504, (1997) 37 ATR 432, BC9707273 (Cosco) at 11; Marnotta Pty Ltd and Secretary, Department of Health and Ageing [2004] AATA 800 at [42].
There should be a legitimate forensic purpose in seeking the relevant documents which ‘must be identifiable, and likely to facilitate the conduct of the proceeding, not merely to oppress a party or witness’.[17] Such legitimate forensic purpose is not limited to admission into evidence, but use in cross-examination, and includes cross-examination going to the question of credit of a witness.[18]
[17] Maganga (n 15) at [32], citing Fried v National Australia Bank (2000) 175 ALR 194 at [29].
[18] Ibid at [32], [34], [36], [38].
However, a summons should not be issued if it serves an improper purpose, such as a “fishing expedition”.[19] The expression ‘fishing expedition’ has traditionally been a metaphor used in the law to describe where ‘a person who has no evidence that fish of a particular kind are in a pool desires to be at liberty to drag it for the purpose of finding out whether there are any there or not’[20] or, to put it another way:
It is not a question of looking at the documents to see if the documents might permit a case to be made.[21]
[19] Maganga (n 15) at [33]-[34]; Cosco (n 16).
[20] Cosco (n 16) at 12, citing Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250 at 254.
[21] Cosco (n 16) at 11.
Further, it has been observed that:
Discovery should be controlled, and may be limited to documents relevant to particular issues, but it is a valuable weapon in the armoury of justice. The real objection, which, in some cases, justifies discovery being limited to particular issues is the objection of oppression.[22]
[22] Caltex Refining Co Pty Ltd v The Amalgamated Metal Workers’ Union (6 December 1990 unreported) BC9003718 at 3 (per Lockhart, Burchett & Gummow JJ), cited in Treasurer of the Commonwealth of Australia v Canwest Global Communications Corp & Ors [1997] FCA 578, BC9702863 at 2 (per Beaumont, Burchett & Emmett JJ); Cosco (n 16) at 12; Bird and Military Rehabilitation and Compensation Commission [2006] AATA 109 at [10].
Request to issue summons to the Respondent’s legal representative
Section 38AA of the AAT Act imposes on the Respondent a continuing obligation to lodge with the Tribunal documents relevant to a review that may come into its possession. Section 37(2) of the AAT Act provides that if the Tribunal is of the opinion that the Respondent holds documents relevant to a review which have not been produced, it can require their production by notice.
The Respondent’s position is that the Applicant has not established why documents between the Respondent’s solicitors and its experts would assist in determining the substantive issue in the proceedings, namely whether the Applicant meets the access criteria in section 21 of the NDIS Act. Further, to the extent that those communications were for the purposes of legal services to the Respondent, they are likely to be privileged communications. The Respondent contends that the provision of the expert reports along with the briefing letters complies with the obligations imposed by the Tribunal in its directions dated 30 March 2023, and does not constitute a waiver of privilege over any other documents relating to the Respondent’s engagement of those experts.[23]
[23] Respondent’s submissions filed 19 October 2023 at [20].
Legal professional privilege may apply to communications between a party to the proceedings and an expert,[24] and
…service and tender of an expert witness’ report in proceedings does not constitute a waiver of the privilege which attaches to communications between the expert and the solicitors who instructed him or her, save to the extent that those communications are associated documents reasonably necessary to an understanding of the report. … The test is concerned with the comprehensibility of the primary communication or document: if it can be completely or thoroughly understood without more, then access to the related communications or documents is not reasonably necessary.[25]
[24] Interchase Corporation Ltd (in liq) v Grosvenor Hill (Queensland) Pty Ltd (No 1) [1999] 1 Qd R 141 at 161-162.
[25] ML Ubase Holdings Co Ltd v Trigem Computer Inc (2007) 69 NSWLR 577 at [45].
It would appear that the Respondent, through its legal representative, engaged Consultant Psychiatrist Dr Kevin O’Daly and Orthopaedic Surgeon Dr Iain Kelman to conduct independent medical assessments. Both were sent briefing letters, and copies of material that the Respondent considered would be relevant to and inform any assessment they performed, any opinion they formed, and any resulting report they produced. Each conducted an assessment and subsequently produced a report, providing opinions they say were based on not only consideration of the documentation with which they were provided, but also an examination and interview of the Applicant.[26]
[26] Report of Dr Kevin O’Daly dated 17 March 2023; Report of Dr Iain Kelman dated 30 March 2023.
I am not satisfied that a summons seeking, as the Applicant does, 'ALL Record's and Referrals and notes made in relation to IME appointments including medical evidence provided to the IME doctor's' will assist the Tribunal in its function of determining his eligibility for access to the Scheme.
The range of what is sought is very broad and by its terms likely to include material subject to legal professional privilege, and material that is of no probative value (such as diary entries). To the extent that it seeks medical evidence, that evidence is in any event required to be disclosed by the Respondent and its representatives to the Tribunal and the Applicant. The medical evidence with which the Respondent’s IMEs were provided will be apparent from the briefing letters sent to them and from the reports that they produced. It has not been demonstrated that their reports cannot be completely or thoroughly understood without having recourse to documentation beyond that already disclosed to the Tribunal.
To the extent that the reports, briefing letters, and other materials known to have been supplied to the IMEs reveal that they were supplied with something that has not been disclosed to the Applicant, it can be identified, and a copy provided. There is no value in the Respondent or its legal representatives producing another copy of what was supplied to the IMEs if it has already been disclosed and is in the papers that are before the Tribunal and which have been supplied to the Applicant.
As to the Applicant’s suggestion that the IMEs were not supplied with all the relevant medical evidence to which they should have had regard, that deficiency will not be cured by a summons to the Respondent’s solicitors. The Applicant has not identified what that evidence might be, but he is at liberty to do so and to seek to have it put before the IMEs, use their lack of access to relevant information to qualify their opinions, and/or put that information before his own medical witnesses for their consideration (as he foreshadows in his submissions).
I agree that it is unusual to seek production of relevant documents from a party’s legal representative by summons. I do not consider it justified in the circumstances before me.
Request to issue summons to Nollamara Medical Centre
The proposed summons directed to Nollamara Medical Centre requires it to produce: 'ALL medical records of MR JOSHUA JONES (DOB [redacted]) for the period August 2022 to Current including all Correspondence Results, Notes, and Clinical records' [sic]. Its purpose is said to be to ‘To obtain updated And upto date information Based on medical evidence and reports from the period of last summons to current August 2022 to August 2023’ [sic].
As the questions of which of the Applicant’s conditions are impairments which give rise to a disability, whether they are permanent, and the extent to which they result in a reduced functional capacity are live issues, it is important that the Tribunal have before it up-to-date medical evidence and evidence of the Applicant’s function. To that extent, the request for a summons appears reasonable.
The Respondent, as noted, objects that what is being sought under the proposed summons is too ‘broad’, and not directly relevant to the treatment of the Applicant’s conditions or impairments being relied upon for entry to the Scheme, and will be unlikely to throw light on substantive issues to be determined by the Tribunal.
As also noted, a considerable amount of material has already been produced under summons by, among others, the Nollamara Medical Centre. Indeed, the Respondent has sought and obtained the production of documentation under summons from 13 medical, hospital, and allied health, services.[27] Each summons sought from the relevant entity
… any referrals, reports, clinical notes, correspondence or any other documents regarding any attendance on, or treatment of, the Applicant …
at that entity.
[27] They were the Balga Plaza Medical Centre, Banksia Medical & Health, East Metropolitan Health Service, Head 2 Toe Mirrabooka Clinic, Koondoola Avenue Medical Centre, Midland Physiotherapy, Mirrabooka Medical Centre, Nollamara Medical Centre, North Street Medical Centre, Sir Charles Gairdner Hospital, St John of God Midland Public Hospital, Swan Medical Centre, and Western Australia Country Health Services Goldfields Region.

Albeit not as elegantly framed as the Respondent’s summons, the Applicant seems to be seeking the same sort of information, from the date of what has already been produced up to August 2023.[28]
[28] All but one of the summonses to produce obtained by the Respondent were dated 28 July 2022, with a return date of 17 August 2022; the one exception, to North Street Medical Centre (an entity from which the Applicant is not seeking further information), was dated 5 August 2022 with a return date of 24 August 2022.
To my mind the Applicant and Tribunal would be served by the Applicant obtaining fresh and recent assessments and reports explaining his current condition and addressing the issues that have been raised by the Respondent and that need to be determined by the Tribunal. Nevertheless, if he is seeking to obtain such assessments it seems to me not unreasonable that they be based on the most current available medical information. If, as the Applicant claims, there is more recent information that was not available to Drs O’Daly and Kelman, which may better inform or may qualify their opinions, he should have an opportunity to present it.
It may be that the Applicant will wish to redraft the summons he seeks to refine how it is expressed, but the Tribunal is prepared to issue the requested summons to produce documents in the possession of Nollamara Medical Centre for the period August 2022 to date.
Request to issue summons to Royal Perth Bentley Group
The proposed summons directed to Royal Perth Bentley Group requires it to produce: 'ALL medical records of MR JOSHUA JONES (DOB [redacted]) full medical Record including notes treatment notes referrals and results’ [sic]. Its purpose is said to be ‘To obtain updated And upto date information Based on medical evidence and reports from the period of last summons to current August 2022 to August 2023’ [sic].
The proposed summons is framed in terms wider than what is contemplated by the reason for the request, which is focussed on medical evidence and reports, rather than ‘ALL medical records’ inclusive of ‘notes treatment notes referrals and results’. The time period in which the Applicant seems to be interested is August 2022 to August 2023 but the summons, as framed, specifies no time period.
Leaving aside the question of whether the Applicant has identified the correct entity to summons, the Applicant seems to be seeking an update of the same range of material that the Respondent had compelled to be produced. However, I consider the terms of the summons to be too broadly framed, as notwithstanding that the Applicant’s intention appears to be only to update what has already been produced, the summons requires production of material already requested and produced to the Tribunal (namely documentation pre-August 2022).
For the reasons stated above in respect of the proposed summons directed to the Nollamara Medical Centre, the Tribunal is prepared to issue a summons for the purposes requested, should it be refined; however, the request for a summons in its present terms is refused as being too broadly framed and including material already produced.
Request to issue summons to Sir Charles Gairdner Hospital
The proposed summons directed to Sir Charles Gairdner Hospital requires it to produce: 'ALL medical records of MR JOSHUA JONES (DOB [redacted]) full medical Record including notes treatment notes referrals and results’ [sic]. Its purpose is said to be ‘To obtain updated And upto date information Based on medical evidence and reports from the period of last summons to current August 2022 to August 2023’ [sic].
The observations above respecting the requests for summonses directed to Nollamara Medical Centre and Royal Perth Bentley Group apply in this case. As with the proposed summons to the Royal Perth Bentley Group, the Tribunal is prepared to issue a summons for the purposes requested, should it be refined; however, the request for a summons in its present terms is refused as being too broadly framed and including material already produced.
DECISION
The request for a summons to be issued to the Respondent’s legal representative is refused.
The request for a summons, or one similarly framed, directed to the Nollamara Medical Centre, will be granted.
The requests for summonses, as presently framed, directed to each of the Royal Perth Bentley Group and Sir Charles Gairdner Hospital are refused.

I certify that the preceding 43 (forty-three) paragraphs are a true copy of the reasons for the decision herein of Administrative Appeals Tribunal

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Associate
Dated: 14 May 2024