Keightley and National Disability Insurance Agency

[2023] AATA 1136

Keightley and National Disability Insurance Agency [2023] AATA 1136 (10 May 2023)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2022/2890

Re:Sarah Keightley

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Senior Member K Buxton

Date:10 May 2023

Place:Brisbane

The Respondent’s requests, dated 29 November 2022, to issue nine summonses for the production of documents, are refused.

Catchwords

PRACTICE AND PROCEDURE – National Disability Insurance Scheme Act 2013 (Cth) – interlocutory application for objection to issuing of summonses – evidence gathering powers during internal review process – issuing of summons would be oppressive to Applicant – application refused.

Legislation

Administrative Appeals Tribunal Act 1975 (Cth): ss 2A, 25, 33(1AB), 34J, 37(1), 39(1), 40A, 42D, 100, 103

National Disability Insurance Scheme Act 2013 (Cth): ss 17A, 19, 21, 24, 26,

Cases

BKQQ and National Disability Insurance Agency [2021] AATA 732.

Cosco Holdings Pty Ltd and Commissioner for Taxation [1997] FCA 1504.

General Merchandise and Apparel Group P/L and CEO of Customs and Australian Weaving Mills (Party Joined) [2009] AATA 988.

Grant v BHP Coal Pty Ltd [2017] FCAFC 42.

MDCT and National Disability Insurance Agency [2020] AATA 6036.

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v LPSP [2023] FCAFC 24.

Negi and National Disability Insurance Scheme [2022] AATA 1453.

TMVJ and National Disability Insurance Agency [2022] AATA 2053.

Tregale and National Disability Insurance Agency [2019] AATA 2513.

REASONS FOR DECISION

Senior Member K Buxton

8 May 2023

1.       Over a year ago on 21 January 2022 the Applicant, Ms Keightley, made a request to become a participant in the National Disability Insurance Scheme.

2. On 15 February 2022, a delegate of the Respondent determined that Ms Keightley did not meet the criteria for access to the Scheme under section 21 of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act). Ms Keightley sought internal review of the delegate’s Decision and, on 2 April 2022, that decision was affirmed. Ms Keightley then immediately lodged an Application for Review of Decision to the Tribunal. In that application, Ms Keightley has asserted that the internal review decision was incorrect because she has “a permanent, stable and fully treated condition” and that “sufficient evidence” has been “provided by my current GP to confirm this…”

1. This interlocutory application arose because the Applicant objected to the issue of nine summonses directed to medical and allied health specialists who had treated her over the years. She wishes the matter to proceed to a review, preferably without an oral hearing, based on the information she has produced in support of her request for access to the scheme.

   The Summons requests

2. On 29 November 2022, almost eight months after the review application was lodged, the Respondent requested that the Tribunal issue summonses requiring the following parties, (the Summonsed Parties) to produce documents:

   a.        Dr Marcus Wilcox (General Practitioner), St John of God Ballarat Hospital;
   b.        The Proper Officer, The Bright Side Medical & Skin Care Clinic;
   c.        David Foresto (Optometrist), Advanced Optometry;
   d.        Simon Dubios (Psychologist), The Health Lodge;

   e. Dr Caryll O’Shaughnessy (General Practitioner) and Dr Matthew Wood (General Practitioner), Bay Centre Medical Clinic;

   f.         Dr Ken Cameron (Specialist General Practitioner), Innovative Medicine QLD;
   g.        Ashley Hommersom (Social Worker/Trauma Counsellor), Kintsugi Counselling;
   h.        Amy English (Social Worker/Counsellor), Seva House; and

   i.         Associate Professor Richard Millard (Urologist), Prince of Wales

   5.       The requests for summonses seek the production of the following documents:

   "Any and all file notes, clinical notes, investigative reports, progress notes,
   medical reports, rehabilitative reports, medical certificates, prescription notes,
   radiological results, referral notes/letters and any other document in your
   possession relating to the Applicant, Ms Sarah Keightley (DOB: 9 October
   1980) from the period beginning 1 January 2005 to the date of the receipt of
   this summons, in connection with:
   1. Post-Traumatic Stress Disorder (PTSD);
   2. Anxiety;
   3. Depression;
   4. Painful Bladder Syndrome; and
   5. Keratoconus"

   6.       The stated reason for the requests was:

   "The Applicant has been treated by the above entities in relation to conditions
   relied on by the Applicant for access to the NDIS.

   The Respondent seeks the production of documents from the above entities
   relating to those conditions. Those documents have a bearing specifically on
   the assessment of whether any impairment relating to a condition relied on by
   the Applicant is, or is likely to be, permanent.

   The Respondent considers that the material sought to be produced pursuant
   to the summons is relevant and may be of assistance to the Tribunal insofar
   as arriving at the correct and preferable decision with respect to the Applicant's Application for Review."

   The Applicant’s contentions

3. The Applicant opposed the Respondent’s requests to issue the proposed summonses. On 20 April 2023, an interlocutory hearing took place at which the Tribunal considered the Applicant’s objection to the issue of the proposed summonses. There had been earlier attempts by the Tribunal to list the matter for an interlocutory hearing, but the Applicant had not been well enough to attend. The Applicant did not appear on the day of the interlocutory hearing, but her written information was taken into account, and the objections she had raised were discussed with the representative of the Respondent, Mr Crethery, solicitor.

4. The Applicant provided statements in writing to the Tribunal, prior to the hearing, to the effect that:

   (a)The issuing of summonses and gathering of further material would delay the timely determination of her review application;

   (b)If the summonsed material, which would contain her private and intimate medical history, was to be disclosed to anyone (that is, if her objection to the requests to issue the summonses was not upheld) she would discontinue her review application;

   (c)She was prepared to proceed to hearing relying on the information before the Respondent at the time of the making of the original decision, and internal review decision

5. By letter dated 1 December 2022 Ms English, a social worker and counsellor to the Applicant, wrote to the solicitors for the Respondent, with the permission of the Applicant, in relation to the objection to the issuing of the summonses. She requested that the application to summons her records including case and clinical notes be withdrawn and expressed the following concerns more broadly about the summons requests:

   ·Miss Keightley’s information is confidential and sensitive, causing significant distress should Miss Keightley’s personal information irrelevant to her physical disabilities be made public.

   ·I am concerned for Miss Keightley’s physical and emotional safety and the risk of re-traumatization due to the legal process.

   ·Information should be kept relevant to what Miss Keightley is seeking NDIS support for and be found through less intrusive means.

   ·The subpoena of therapeutic notes poses a risk of the therapist and client relationship due to Miss Keightley’s prior experiences of systematic abuse; potentially impacting Miss Keightley’s engagement in therapeutic support services.

6. Ms English sent a covering letter copying this request to the Tribunal in which she concluded: “I request your compassion and understanding in this as the impact of Miss Keightley's sensitive information being made public would be significantly detrimental to Miss Keightley's wellbeing and I request that information be sought through less intrusive means.”

   The Respondent’s contentions

7. The Respondent provided some context for the summons requests during the interlocutory hearing. The Respondent submitted that the key issues in this case are whether the Applicant’s impairment is permanent, as that is understood in subsection 24(1)(b) of the NDIS Act, and whether the Applicant has a substantial functional impairment in at least one of the domains identified in subsection 24(1)(c) of the NDIS Act. Some months ago, the Respondent had requested that the Applicant submit herself voluntarily to an examination by a specialist urologist for the purpose of gathering evidence about these key issues, but the Applicant declined to participate, stating that she was too unwell to do so. The Respondent communicated with an urologist who was prepared to undertake a review “on the papers” and prepare a report about the Applicant’s impairments but stated that this could not be undertaken in a meaningful way without reviewing the Applicant’s medical history. Therefore, according to the Respondent’s oral submissions made during the hearing, the purpose of the Respondent’s requests for summonses to issue is so that material can be obtained, provided to an expert urologist, and an expert opinion provided for use in these proceedings. This is a somewhat narrower purpose than that provided for in the reasons for the requests, with greater focus on permanence of the Applicant’s impairments, and provided useful context to consider those requests. The Respondent also submitted, during the hearing, that a decision on access could not be made without such an expert report being made available.

8. In written submissions, dated 17 April 2023, the Respondent accurately, and helpfully, summarised the legal principles applicable to the Tribunal’s decision whether a summons can issue, and addressed the Applicant’s objection. The bar is relatively low in terms of material on which the Tribunal may reach of level of satisfaction that the requested summons will produce probative, relevant evidence. It is sufficient for the requesting party to demonstrate that the documents produced under a requested summons could “reasonably be expected to throw light on some of the issues” to be determined.[1] However, the Respondent further submitted that the Tribunal may refuse to issue a summons to prevent injustice in the proceedings, or where the summons is oppressive or vexatious.

   [1] Cosco Holdings Pty Ltd and Commissioner for Taxation [1997] FCA 1504, [42].

9. Given the scope of the requests, and the intended targets, the Tribunal is satisfied that it has the power to issue the requested summons. From this point, it is necessary to determine if it is the proper exercise of the Tribunal’s discretion to issue the summons, having regard to the issues raised by the Applicant on objection, and the Respondent’s submissions about those issues.

10. The Respondent correctly observed that a summons must have a legitimate forensic purpose and referred the Tribunal to the following helpful observations by SM Groom, as to the power is issue summonses, in Tregale and National Disability Insurance Agency[2] at [25]:

    "They are discretionary powers and, as such, must be exercised for a proper purpose in accordance with the AAT Act, including the Tribunal’s objectives set out in section 2A. Those objectives include providing a mechanism of review that is “fair, just, economical, informal and quick”. It is generally accepted that the principles applied to the issue of subpoenas by a court are also applicable to the issue of a summons, or a refusal to issue a summons, under the AAT Act. There are a number of grounds upon which a subpoena may be challenged including that it is an abuse of process, it is oppressive, it is a fishing exercise or it does not go to matters which are relevant to the issues at hand. These considerations apply equally to any exercise of the discretion in sections 40A(1) and (2) to either issue or refuse a summons."

    [2] Tregale and National Disability Insurance Agency [2019] AATA 2513.

11. The Tribunal accepts the Respondent’s submission that the decision whether to issue a summons will depend upon the particular facts and legislative context of each case.[3] That legislative context includes, critically in this case, the Tribunal’s objective set out in section 2A of the Administrative Appeals Tribunal Act 1975 (Cth) “AAT Act” for the Tribunal to provide a mechanism, of review that is, amongst other things, fair, just, economical, informal and quick, and proportionate to the importance and complexity of the matter. Further statutory context can be found in Chapter 3 Part 1 of the NDIS Act which sets out a statutory code for the consideration and determination of requests to become a participant in the National Disability Insurance Scheme. Section 19(2) of the NDIS Act provides that if an access request is not granted the person may make another access request at any time. Section 26 of the NDIS Act grants to the CEO evidence gathering powers which may be exercised in order to consider the access request. As those powers may be exercised during consideration of the access request, they may also be exercised by a reviewer during a s100 review.

    [3] General Merchandise and Apparel Group P/L and CEO of Customs and Australian Weaving Mills (Party

12. When asked, during the interlocutory hearing, why the Respondent was pursuing further evidence in this way, the Respondent stated that it wished to be “collaborative” with the Applicant, and it did not wish to be criticised for not being sufficiently pro-active in preparing for the determination of this review application.

13. The Respondent submitted that it was “entitled to a reasonable opportunity to present its case,” and referred to section 39(1) of the AAT Act which identifies, inter alia, the importance of a party inspecting any document to which the Tribunal proposes to have regard in arriving at the correct or preferable decision. The Respondent also submitted that, although it may have had opportunities to gather evidence itself in the past, this was “the last time” such an opportunity arose, and it would amount to a denial of procedural fairness if the Tribunal did not facilitate the gathering of this evidence, as the Respondent has now formed the view that it would assist in arriving at the correct or preferable decision.

    Consideration

14. If this review proceeds to hearing without further evidence, the Tribunal will rely on the documents before the original decision-maker. Therefore, the additional information targeted by the requested summonses will not be available to the Tribunal and will not attract the operation of section 39(1) of the AAT Act. The section 37(1) information (T-documents) contain information from the Applicant’s general practitioner and reports from each of the individuals who are the proposed targets of the requested summonses. In the particular circumstances of this case, the Applicant wishes to proceed to a determination of her review application without relying upon any evidence that was not available to the original decision maker and to the reviewer. In her review application, the Applicant indicates that she relies on the evidence of her general practitioner. There is no evidence before the Tribunal, and there was no evidence before the delegate or reviewer, from an expert urologist going to the issues now before the Tribunal for determination and, in particular, going to permanence, compliance with treatment and outcomes. If the Applicant wishes to assume the forensic risk of proceeding to determination of her review without relying upon any additional evidence, that is a decision that should be respected. Section 17A of the NDIS Act informs the conduct of the CEO (and the Tribunal, standing in its shoes) including through the principle that people with disability are assumed, so far as is reasonable in the circumstances, to have capacity to determine their own best interests and make decisions that affect their own lives. It is open to the Tribunal to facilitate the choice of an Applicant to conduct their case as they see fit.[4]

    [4] See discussion in TMVJ and National Disability Insurance Agency [2022] AATA 2053, [5]–[6].

15. In MDCT and National Disability Insurance Agency[5] the Tribunal made the following observation as to the potential consequences of such forensic risk in the context of considering requests that can be made under the Act for the purpose of gathering information about issues relevant to a reviewable decision:

    An unsurprising natural consequence of refusing a request to gather further such information may be that, in some cases, the decision-maker will conclude that it does not have sufficient information to approve particular supports sought by the participant be included in the plan. On review, the consequence of an applicant continuing to refuse to consent to the gathering of certain evidence may lead the Tribunal to conclude that it does not have sufficient information to determine that particular supports sought to be included in the plan are reasonable and necessary and should be funded by the NDIS. It may therefore be in the interests of an applicant for review to participate in the gathering of any relevant evidence.[6]

    [5] [2020] AATA 6036.

    [6] Ibid, [25].

16. The intersection between the pursuit of the Tribunal’s statutory objective and requests by a party to expand the evidence available to the Tribunal was also considered in MDCT[7]:

    Relevantly, subsection 33(1AB) of the AAT Act requires the parties to a review application, and any person representing such a party, to use their best endeavours to assist the Tribunal to fulfil the objective in section 2A of the AAT Act. The effect of that provision upon the Respondent’s obligations, when requesting an applicant to facilitate the provision of information or evidence, is that the requests must be reasonable and proportionate to the complexity of his or her case. The effect of that provision upon the response to a reasonable and proportionate request is to require an applicant to accede to such a request where it is made for the purpose of facilitating a review process that it fair and just. If a reasonable and proportionate request is made, and unreasonably refused, it is open to the Tribunal to control the review process by directing that an applicant meet such a request. To do so is consistent with the Tribunal’s objective to ensure that each party is given the opportunity to present their case, and that the review is conducted fairly and justly.

    [7] Op cit, [8].

17. The effect of the Applicant’s objection is to invite the Tribunal to conclude that the summons requests are oppressive, or unreasonable, and are not proportionate to the complexity of this case. If the summons requests are granted, the Applicant will need to read through the volume of material produced and communicate with the Tribunal and the Respondent in relation to any objections she may have to inspection of particular documents. Having regard to the comments of Ms English, and those of the Applicant herself, the Tribunal is prepared to draw a prima facie conclusion that this process will present major challenges for the Applicant due to the volume of the material, its likely distressing and triggering contents and limitations resulting from her reported physical and mental health conditions and that she will likely withdraw her review application rather than proceed with this task.

18. The Tribunal notes that the list of parties to be summonsed is substantial and, if the summonses were issued, the documents produced are likely to provide a comprehensive history of the most intimate details of the Applicant’s life. Even with the proposed limitation to the five impairments identified in the request the documents produced are likely to be voluminous and documents may be produced that relate to issues outside what is necessary for the proper determination of the Applicant’s review application. Although the intended purpose of the summonses was said to be to obtain a review by a consultant urologist, it is not entirely clear how that consultant urologist could benefit from, for example, clinical notes of sessions with the Applicant’s counsellor or General Practitioner notes which discuss both her relevant impairments and other unrelated issues.

1. The Tribunal notes that such nuances could, in theory, be explored in an objection to the production of summonsed documents for inspection. The Tribunal has traditionally been more prepared to weigh the benefit of the documents against the risk to the Applicant arising from their disclosure in the context of an objection to production than when determining the threshold question whether the summons should issue at all. However, to do so in this case will require the Applicant to engage in the task of comprehensively and forensically reviewing all of the produced document which is a task that both she, and her counsellor, suggest would be difficult and damaging for her. The Applicant has stated that she simply will not continue to exercise her review rights if her objection is not upheld. In the particular circumstances of this case the Tribunal considers it is not unreasonable for the Applicant to identify this question at the threshold of the issue of the summonses and ask that the Tribunal take her submission into account. The Tribunal accepts that this is the appropriate juncture to consider the nuances associated with the impact to the Applicant in issuing the requested summonses, before it is too late.

2. The proportionality question is apposite. There is no obligation on the Respondent to facilitate the creation of additional evidence over objection from an Applicant. To do so would be to expand the scope of the review in a way that is disproportionate and, depending on the circumstances, may not result in a review that was fair, just, informal, economical and quick. Further, there is sufficient evidence from which the Tribunal can reasonably conclude that managing the process of objecting to the inspection of summonsed material is likely to be difficult and damaging to the Applicant. The Tribunal is satisfied that there is sufficient material before it from which to conclude that, in the particular circumstances of this case, the issue of the requested summonses would be oppressive to the Applicant and that refusing the requests does not infringe the Respondent’s entitlement to procedural fairness.

3. It is difficult to reconcile the Respondent’s submission that it had, quite properly, taken a collaborative approach in seeking to expand the available evidence with the Applicant’s clear position that she does not wish the further documents to be summonsed and that she is perfectly content to proceed with the evidence in its current state. If the Applicant was willing and able to participate in evidence gathering it may well be of assistance to the Applicant and to the Tribunal for this to be facilitated by the Respondent. However, the fact that the Applicant does not consider additional evidence to necessary, and the fact that has not agreed to participate in a medical examination that may lead to the creation of further evidence, are each clear indications that the Respondent’s requests for summonses (whilst perhaps initially well-intended) could not be said to be collaborative.

4. As to the Respondent’s sensitivity to potential criticism from the Tribunal point, the Respondent has made the requests, and it is a matter for the Tribunal to determine in the factual and statutory setting of each case whether it may be assisted by the further evidence. The Tribunal will not be influenced by a submission from a decision maker that it might be criticised if it does not seek to expand the available evidence, particularly when such evidence-gathering was not seen by its delegate decision makers as critical when the access request was earlier considered, both initially and on (internal) review.

5. As to the Respondent’s procedural fairness concerns, the Tribunal notes that summons requests under consideration are not the first, or even the second, but the third opportunity the Respondent has had to gather relevant evidence in relation to the Applicant’s access request. The Tribunal exists as a second-tier of merits review, not as the original evidence-gatherer or decision maker It was open to the Respondent to use its statutory evidence gathering powers to inform itself either when the request was initially considered, or on internal review. A similar issue arose in the matter of Negi and National Disability Insurance Scheme[8] (where the issue before the Tribunal was whether the matter should be remitted for further evidence gathering):

   In this case the evidence-gathering powers under subsection 26(1) of the NDIS Act, if exercised, would have allowed the Respondent to make a decision based on the evidence it now submits would “assist” the Tribunal. Yet, in this case, the Respondent has declined to exercise those powers. Instead, the Respondent submits, this evidence-gathering should take place only after the review application has been lodged in the Tribunal. For the reasons that follow, the Tribunal concludes that this practice is inconsistent with the statutory scheme and is not consistent with good administrative decision-making on the part of the Respondent as it does not permit the proper exercise of the two-tiered review process contemplated by the AAT Act.

   [8] [2022] AATA 1453, [9].

6. In BKQQ and National Disability Insurance Agency[9] the question of directing an Applicant to participate in an expert examination arose and the Tribunal observed:

   The Respondent submitted that “a party to litigation is entitled to obtain its own expert opinions”. The Tribunal notes that the parties are not engaged in civil litigation but, rather, in a process of administrative review. As a result, the powers of the Tribunal are defined by relevant statutory provisions, and the rights and obligations of the parties are curated in the same manner. The Respondent is free to engage its own experts to review existing material and provide opinion evidence to assist the Tribunal. However, where an applicant is opposed to participating in certain evidence-gathering activities there is no automatic entitlement to compel that participation without proper regard to the basis for that opposition. The Tribunal observes, as reflected in the passage from MDCT set out above, that the possible consequence of an applicant’s refusal to participate is that an applicant may proceed to review without sufficient evidence to enable the Tribunal to determine that the supports sought should be included in the participant’s plan. That forensic risk would, presumably, be weighed by an applicant against other factors relevant to their participation in the assessment as requested by the Respondent.

   [9] [2021] AATA 732, [13].

7. The Respondent’s submission in this case does not go quite as far as the position adopted by the Respondent in BKQQ but the point remains that the entitlement to procedural fairness falls short of an absolute right to call on the Tribunal to use is coercive powers to obtain such evidence.

8. The power to compel participation in a physical or psycho-social assessment or examination has been the subject of recent judicial consideration[10]. In Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v LPSP[11] the Full Court of the Federal Court has determined (by majority) that the principal of legality will apply, and a party is not to be compelled to participate in a medical examination (whether physical or psycho-social) without their consent, absent an express statutory power to do so. The directions-making power in section 33 of the AAT Act does not amount to such an express statutory power. However, clear examples of such a statutory power do exist.[12] Section 26 of the NDIS Act is such a power.

   [10] The Tribunal notes that the conclusions reached in BKQQ as to the powers under section 33 of the AAT Act would no longer be available following jurisprudential developments since that decision was made.

   [11] [2023] FCAFC 24.

   [12] See Grant v BHP Coal Pty Ltd [2017] FCAFC 42.

9. The Respondent submitted that a decision on access could not be made without such an expert report being made available. This is a surprising submission indeed. The Respondent has already considered the Applicant’s access request on two occasions and on each occasion decided that the access criteria were not met without gathering further evidence itself and without the benefit of an expert opinion which, it now submits, is critical. The effect of the Respondent’s submission is that, without additional evidence that was not before the original decision-maker, the Tribunal will not be able to arrive at the correct or preferable decision. If that is the case, the effect of the submission is that the Respondent has not undertaken a meaningful review. The question is, in those circumstances what role (if any) should the Tribunal have in expanding the available evidence?

10. It will not always be appropriate for the Tribunal to exercise its discretion to use its coercive evidence gathering power to summons documents, as I sought to explain in the following passage from Negi and National Disability Insurance Scheme:[13]

    The statutory scheme plainly contemplates a two-tiered review process whereby a decision is first reviewed internally, under section 100 of the NDIS Act, and may then be reviewed externally by the Tribunal, by operation of section 103 of the NDIS Act and section 25 of the AAT Act. This two-tiered process is not designed to facilitate the abdication, by the decision-maker, of its evidence-gathering powers so that, if the matter is later escalated to the Tribunal, the evidence can be sought for the first time at that point. The process is designed to facilitate a meaningful review under section 100 of the NDIS Act as well as before the Tribunal. Just because a defect can be cured by the Tribunal, including by the engagement of powers available only to the Tribunal such as the issuing of a summons, doesn’t mean that is the preferable course.

    [13] [2022] AATA 1453 at [22].

11. Therefore, the criticism most likely to be levelled at the Respondent in this and similar matters is the failure to undertake a meaningful review, either at first instance or during the section 100 process.

12. The Tribunal does not accept that refusing the requests to issue the summonses would amount to a denial of procedural fairness being afforded to the Respondent. Procedural fairness requires the party to have access to opportunities (to be heard, to gather evidence etc) but those opportunities need not be endless. Rather, the Tribunal must balance such rights and entitlements against legitimate concerns as to delay and oppression and consider that balance having regard to the nature of each review and the Tribunal’s statutory objective. The Respondent could have made further inquiries as to the issues of permanence, compliance with treatment and outcomes, at any earlier stage. It is not a denial of procedural fairness to refuse the Respondent its third opportunity to use a coercive investigate power in a review application where the Respondent could have earlier sought expert evidence but did not.

13. It is not until the point of decision that a party may submit that the decision is infected with a jurisdictional error arising from a want of procedural fairness. It remains open to the Respondent to facilitate oral evidence at the hearing from any medical and allied professional whose evidence may assist the Tribunal. Any “testing” of evidence can take place in the hearing by cross-examining the authors of any of the T-Documents who were the proposed targets of the Respondent’s summons requests. The Tribunal’s refusal to summons documents from those witnesses should not interfere with the Respondent’s appropriate preparation for the hearing, including by ensuring those witnesses are available to give oral evidence should the Respondent consider that to be appropriate

14. Should the Respondent wish to maintain that it cannot assist the Tribunal to arrive at the correct or preferable decision in this case without additional evidence about permanence, compliance and treatment outcomes, it is open to the Respondent to request that the application be remitted under section 42D of the AAT Act so that the Respondent can explore these issues through its statutory evidence-gathering powers, in circumstances where it could have, but has not, done so to date.

15. It follows from these reasons that the Tribunal had decided to uphold the Applicant’s objections to the requests to issue summonses in this review. The requests to issue those summonses, identified above, are refused. The Tribunal will therefore consider the appropriate next steps in this review.

    Next steps

16. The Applicant has indicated that she would consent to a determination of her review application on the papers and without the need for an oral hearing.[14] In this simple case the Tribunal has also formed the view that this course would be appropriate. However, the Respondent indicated during the interlocutory hearing that it would not consent to a determination on the papers if the summonses were not issued because it would seek to cross-examine the Applicant’s General Practitioner, other witnesses if required.

    [14] As is required by section 34J of the Administrative Appeals Tribunal Act 1975 (Cth).

17. The Respondent was sensitive to the Applicant’s health and noted, appropriately, that the Applicant could determine whether or not to attend and participate in such hearing and that a hearing of her review application could proceed in her absence so long as her treating General Practitioner, and potentially other witnesses, attended to give evidence. As the Tribunal cannot proceed to a determination on the papers without the consent of both parties, it seems sensible to proceed in the manner suggested by the Respondent. The Tribunal will direct that hearing certificates be issued enquiring as to the availability of any necessary participant in a hearing to take place in June or July of this year. It would be helpful if the Respondent made contact directly with any potential witness it seeks to have available for cross examination, or with their administrative staff, so that this may be facilitated and so that their availability may be noted on the hearing certificate. Whether the Applicant participates in that hearing, or not, is entirely a matter for her and may quite understandably depend on her health at the time of the hearing.

18. The Tribunal has issued directions consistent with these observations so that the matter can proceed to a timely resolution before the Tribunal.

    Interlocutory Decision

19. The Respondent’s requests, dated 29 November 2022, to issue nine summonses for the production of documents, are refused.

    I certify that the preceding 41 (forty-one) paragraphs are a true copy of the reasons for the decision herein of Member K Buxton.

    .................[SGD]....................

    Associate

    Dated: 10 May 2023

    
    

Joined) [2009] AATA 988, [204]; see also Cosco Holdings Pty Ltd and Commissioner for Taxation [1997].

FCA 1504.