PRLT and National Disability Insurance Agency [2024] AATA 390 (8 March 2024)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number: 2020/0198
Re:PRLT
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Member P Smith
Date:8 March 2024
Place:Sydney
The Tribunal makes the following decision:
1.The Applicant’s request that the summonses issued to Professor Ian Wilcox and Dr Shaun Watson on 11 April 2023 be set aside, is refused.
Pursuant to section 40B of the AAT Act, the Tribunal orders that:
1.Leave is given to the Respondent to inspect the following documents:
Dr Shaun Watson
·From the first set of 6 pages, pages 1 to 4;
·From the second set of 11 pages, pages 1 to 3, 6 to 11.
All other documents provided by Dr Watson are not relevant.
Professor Ian Wilcox
·From the set of 35 pages, pages 28 to 30, 32 to 33.
All other documents provided by Professor Wilcox are not relevant.
................................[SGD]........................................
Member P Smith
Catchwords
PRACTICE & PROCEDURE - NATIONAL DISABILITY INSURANCE SCHEME – Request to issue summonses for the production of documents from Applicant’s medical specialists – objection lodged by the Applicant that the Respondent not be given leave to inspect the documents and that the Tribunal set the summonses aside – whether the Respondent’s request is an abuse of process – whether the Respondent’s request amounts to a fishing expedition – whether the documents have relevance or apparent relevance to the substantive issue on the review – whether consent of the Applicant is required to be obtained by the Respondent before requesting medical records - whether the Applicant has been denied procedural fairness to prosecute her case on the summons issue – significant delays caused by the Applicant to determine the result of the summons issue and the overarching proceeding – whether the Respondent breached their model litigant obligations - leave granted to the Respondent to inspect the documents that have relevance or apparent relevance to the substantive issue on the review
Legislation
Administrative Appeals Tribunal Act 1975 (Cth), ss.2A, 3, 33, 35, 39, 40A, 40B, 42D, 44, 59B
National Disability Insurance Scheme Act 2013 (Cth), ss.18, 21, 22, 23, 24, 28(2), 32, 33(2), 34, 48
Cases
Cosco Holdings Pty Ltd v Commissioner of Taxation (1997) 37 ATR 432.
Abela and Australian Prudential Regulation Authority [2008] AATA 397.
HXJZ and National Disability Insurance Agency [2022] AATA 826.
R v Saleam (1989) 16 NSWLR 14.
Attorney-General for New South Wales v Stuart (1994) 34 NSW 667.
Australian Gas Light Co v Australian Competition and Consumer Commission [2003] FCA 1101.
Comcare v Maganga [2008] FCA 285.
Abela and Australian Prudential Regulation Authority [2008] AATA 397.
Waind and Hill v National Employers’ Mutual General Insurance Association Ltd [1978] 1 NSWLR 372.
Re Panagiotou and TNT Australia Pty Ltd [2011] AATA 565.
Trade Practices Commission v Kimberley Homes (1989) 217 ALR 110.
Steel v Comcare [2018] AATA 481.
Fried v National Australia Bank Limited [2000] FCA 911.
Steele and Comcare [2018] AATA 481.
Trade Practices Commission v Arnotts Limited (1989) 88 ALR 90.
Comcare and Maganga (2008) 101 ALD 68.
General Merchandise and Apparel Group Pty Ltd and CEO of Customs and Australian Weaving Mills [2009] AATA 988.
Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984] 3 NSWLR 98.
Trade Practices Commission v Arnotts Ltd (No 2) (1989) 21 FCR 306.
Maronis Holdings Ltd v Nippon Credit Australia Ltd [2000] NSWSC 138.
Australian Gas Light Co v ACCC [2003] FCA 1101.
Re Marnotta Pty Ltd and Secretary, Dept of Health and Ageing [2004] AATA 800.
Mountain View Productions LLC v Keri Lee Charters Pty Ltd [2022] FCA 161.
Gjergji and Minister for Home Affairs [2018] AATA 1823
ZFCC and Comcare [2018] AATA 1358.
Re General Merchandise & Apparel Group Pty Ltd and the Chief Executive Officer of Customs [2009] AATA 988.
Associated Dominions Assurance Society and John Fairfax & Sons (1952) 72 WN (NSW).
General Merchandise and Apparel Group P/L and CEO of Customs and Australian Weaving Mills (Party Joined) [2009] AATA 988.
Woodhouse and Comcare [2007] AATA 1920.
Jones and Comcare [2019] AATA 5407.
Telstra Corporation Ltd v Minister for Communications, Information and Technology and the Arts [2007] FCA 1398.
The Commissioner for Railways v Small (1938) 38 SR (NSW) 564.
Hunt v Wark (1985) 40 SASR 489.
Re Tsartas and CSL Ltd [2012] AATA 485.
MMMY v National Disability Insurance Agency [2022] AATA 3236.
Repatriation Commission v Farley-Smith (2007) 96 ALD 348.
Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143.
Secondary Materials
National Disability Insurance Scheme (Support for Participant) Rules 2013
Administrative Appeals Tribunal Regulation 2015, regs 7, 11
Review of National Disability Insurance Scheme Decisions Practice Direction, cl. 7.4
National Disability Insurance Scheme Service Charter
REASONS FOR DECISION
8 March 2024
Member P Smith
INTRODUCTION
PRLT[1] (the Applicant) has a primary diagnosis of a Generalised Anxiety Disorder (GAD) and a Major Depression Disorder (MDD)[2]. Secondary to these two psychosocial impairments, the Applicant also has other diagnosed conditions. This includes a Specific Learning Disability in written expression (aka dysgraphia)[3], Myalgic Encephalomyelitis/Chronic Fatigue Syndrome (CFS)[4], Post-Traumatic Stress Disorder (PTSD)[5], Postural Orthostatic Tachychardia Syndrome (POTS)[6] and coeliac disease[7].
[1] On 21 June 2021, the Tribunal made an order under section 35 of the Administrative Appeals Tribunal Act 1975 (Cth) directing that the Applicant’s name in the proceeding be replaced with a pseudonym, namely, PRLT.
[2] See the letter of Dr Peter Kluger, Medical Practitioner to the Chronic Fatigue Clinic dated 15 October 2018 at T28E of the T-documents.
[3] See the Joint Neurological Assessment Report that Emma Doolan, Provisional Psychologist and Dr Amanda Olley, Supervising Clinical Neuropsychologist, prepared on 13 March 2018 following their assessment of the Applicant at T10 of the T-documents.
[4] See the letter from Dr Peter Kluger, Medical Practitioner to the National Disability Insurance Agency dated 3 September 2019 at T28A of the T-documents.
[5] See the letter from Dr Peter Kluger, Medical Practitioner to the Chronic Fatigue Clinic dated 15 October 2018 at T28E of the T-documents.
[6] See the letter from Dr Shaun Watson, Neurologist to Dr Peter Kluger, Medical Practitioner dated 11 July 2019 at T28B of the T-documents.
[7] See the report of Ayeter Galbaran, Mental Health Case Manager, Anglicare dated 21 January 2019 at T20 of the T-documents.
The Applicant made an access request[8] to the Chief Executive Officer (the CEO) of the National Disability Insurance Agency (the Respondent) on 24 January 2019[9] to become a participant in the National Disability Insurance Scheme (the NDIS). This was so that the Applicant could access reasonable and necessary supports funded under the NDIS in order to assist her to meet her disability support needs.
[8] Section 18 of National Disability Insurance Scheme Act 2013 (Cth) provides that a person may make a request (an access request) to the Chief Executive Officer of the National Disability Insurance Agency to become a participant in National Disability Insurance Scheme.
[9] For a copy of the access request that the Applicant made to the Chief Executive Officer of the National Disability Insurance Agency on 24 January 2019, see T21 of the T-documents.
The Applicant’s access request (and the supporting information) was considered by a delegate of the CEO of the Respondent against the access criteria as set out in section 21 of the National Disability Insurance Scheme Act 2013 (Cth) (the Act). This is the criteria that the CEO of the Respondent must apply when deciding whether or not a prospective participant meets the access criteria to become a participant in the NDIS.
For the purpose of subsection 21(1)(a) of the Act, the delegate was satisfied that the Applicant is a person who met the age requirements in section 22 of the Act.
For the purpose of subsection 21(1)(b) of the Act, the delegate was satisfied, that at the time of considering the access request, the Applicant is a person who met the residence requirements in section 23 of the Act.
For the purpose of subsection 21(1)(c) of the Act, the delegate, save and except for the Applicant’s POTS diagnosis, considered each of the conditions mentioned above in paragraph [1]. The delegate was satisfied that at the time of considering the access request (and the supporting information) that the Applicant is a person who met the disability requirements in section 24 of the Act on account of the Applicant’s primary diagnosis of GAD and MDD[10]. Accordingly, on 11 April 2019[11], the Applicant became a participant in the NDIS on account of those two psychosocial impairments.
[10] See page 1 of the interaction record of the National Disability Insurance Agency dated 9 July 2019. This interaction record was lodged with the Tribunal via email on 14 October 2021 on behalf of the Applicant by Annie Piper, a Disability Advocate with Disability Housing Advocacy Project, People with Disability Australia.
[11] See the written notice of the decision of the Chief Executive Officer of the National Disability Insurance Agency dated 12 April 2019. The Applicant was given notice of this decision on 12 April 2019 as required by subsection 28(2) of the National Disability Insurance Scheme Act 2013 (Cth). A copy of this notice was lodged with the Tribunal via email on 14 October 2021 on behalf of the Applicant by Annie Piper, a Disability Advocate with Disability Housing Advocacy Project, People with Disability Australia.
The delegate, however, was not satisfied, that, at the time of considering the access request (and the supporting information) that the Applicant is a person who met the disability requirements in section 24 of the Act on account of her dysgraphia, CFS, PTSD, or coeliac disease.
Specifically in relation to the Applicant’s diagnosis of dysgraphia and coeliac disease, the delegate was not satisfied that the Applicant was a person who met the requirements of subsection 24(1)(a) of the Act. This is because the delegate was not satisfied that neither the Applicant’s dysgraphia nor her coeliac disease was a disability attributable to one or more intellectual, cognitive, neurological, sensory, or physical impairments[12].
[12] See page 3 of the interaction record of the National Disability Insurance Agency dated 11 April 2019. This interaction record was lodged with the Tribunal via email on 14 October 2021 on behalf of the Applicant by Annie Piper, a Disability Advocate with Disability Housing Advocacy Project, People with Disability Australia
Specifically in relation to the Applicant’s diagnosis of CFS and PTSD, the delegate was not satisfied that the Applicant was a person who met the requirements of subsection 24(1)(b) of the Act. This is because the delegate was not satisfied that the Applicant’s CFS and PTSD were permanent impairments, or impairments likely to be permanent[13].
[13] ibid.
As the Respondent had decided on 11 May 2019 that the Applicant met the access criteria as set out in section 21 of the Act to become a participant in the NDIS, the CEO of the Respondent, as is required under the Act, commenced facilitation of the preparation of a participant’s plan[14]. Accordingly, on 21 May 2019, another delegate, also acting on behalf of the CEO of the Respondent, approved a statement of participant supports (SOPS) in the Applicant’s Plan under subsection 33(2) of the Act for a 12-month period commencing on 21 May 2019 and ending before 20 May 2020[15]. The supports that the delegate approved and that were included in the SOPS on 21 May 2019 are limited to supports that are designed to assist the Applicant to meet her disability support needs insofar as they relate to the Applicant’s GAD and MDD.
[14] See the requirements in section 32 of the National Disability Insurance Scheme Act 2013 (Cth).
[15] For a copy of the statement of participant supports that was approved in the Applicant’s Plan under subsection 33(2) of the National Disability Insurance Scheme Act 2013 (Cth) on 21 May 2019 by a delegate of the Chief Executive Officer of the National Disability Insurance Agency, see page 258 of T47 of the T-documents.
On 19 December 2019, following the completion of an internal review of the delegate’s decision, that had been requested by the Applicant[16], a reviewer of the Respondent, approved another SOPS in a new plan for the Applicant for a six-month period commencing on 19 December 2019 and ending before 20 May 2020[17]. The reviewer approved a new SOPS because he had decided, following the completion of the internal review, that the delegate’s decision should be varied to include further funding for five additional supports deemed as reasonable and necessary, again, limited to only assisting the Applicant in meeting her disability support needs arising from her GAD and MDD. The five additional supports deemed reasonable and necessary by the reviewer included: 26 hours of psychology[18]; 26 hours of occupational therapy[19]; 26 hours of physiotherapy[20]; four hours per week of level 3 specialised support co-ordination[21] and level 2 transport[22].
[16] See the interaction record dated 26 June 2019 at page 247 of 360 of T46 of the T-documents. This record states that the Applicant making an oral request to the National Disability Insurance Agency (the Respondent) by telephone on 26 June 2019 for an internal review of the decision that a delegate of the Chief Executive Officer of the Respondent made on 21 May 2019 under subsection 33(2) of the National Disability Insurance Scheme Act 2013 (Cth).
[17] For a copy of the statement of participant supports that was approved in the Applicant’s Plan on 19 December 2019 by a reviewer of the National Disability Insurance Agency, see page 272 of T48 of the T-documents.
[18] See page 11 of the Internal Review Decision that was made on 19 December 2019 by a reviewer of the National Disability Insurance Agency at T2 of the T-documents.
[19] Ibid, at page 12.
[20] Ibid, at page 9.
[21] Ibid, at page 12.
[22] Ibid, at page 9.
THE TRIBUNAL PROCEEDING
On 13 January 2020[23], the Applicant lodged an application with the Tribunal, seeking external review of the decision made by a delegate of the Respondent dated 19 December 2019. That decision varied the original decision made by a delegate of the Respondent on 21 May 2019 to approve a SOPS in the Applicant’s Plan.
[23] For a copy of the application for review the Applicant made to the Tribunal on 13 January 2020, see T1 of the T-documents.
For the purpose of the proceeding before the Tribunal, the Applicant is requesting the approval of several hundred supports she contends are reasonable and necessary and thus should be funded under the NDIS and included in the Applicant’s Plan. The supports being requested by the Applicant are set out in a Microsoft Excel Spreadsheet (MES), a copy of which was emailed to the Tribunal on behalf of the Applicant on 30 June 2023 by one of her support workers: TW.[24]
[24] I gave a direction in relation to the proceeding at a Directions Hearing held via video on 28 June 2023. The direction required the Applicant to provide written confirmation of the supports she was requesting for the purpose of progressing her application before the Tribunal, and also to consider whether or not it was possible for her application to be resolved by another review body, namely the Independent Expert Review Committee that was established by the National Disability Insurance Agency to commence on 4 October 2022 up to and including 30 June 2023.
The Tribunal understands that many of the supports that are being requested by the Applicant (as listed on the MES) are for supports that relate to the Applicant’s CFS and POTS diagnoses. The Tribunal also understands that the basis for the Applicant’s request is because the Applicant considers the supports currently funded and included under her participant plan to be inadequate. This, the Applicant contends, is because they are limited to only assisting her in meeting her disability support needs arising from her diagnoses of GAD and MDD, and therefore, do not assist the Applicant in meeting her other disability support needs that arise from her CFS and POTS diagnoses.
Thus, the substantive issue on the review that the Tribunal is yet to determine in this proceeding is whether, on the evidence, the requested supports (as listed on the MES) sought by the Applicant are reasonable and necessary within the meaning of section 34 of the Act and the National Disability Insurance Scheme (Support for Participants) Rules 2013 (the Support Rules).
THE SUMMONS ISSUE
The current issue before the Tribunal involves a dispute between the parties which has arisen from a decision made by the Tribunal on 11 April 2023 to issue summonses to Professor Ian Wilcox (Prof Wilcox), Cardiologist and Dr Shaun Watson (Dr Watson), Neurologist. Following a request made by the Respondent on 6 April 2023, the summonses required both specialists to produce to the Tribunal documents related to any treatment that they may have provided to the Applicant. The documents of Prof Wilcox and Dr Watson were produced to the Tribunal on 10 May 2023.
19.The Applicant objects to the Tribunal giving the Respondent leave to inspect the documents of Prof Wilcox and Dr Watson. Furthermore, the Applicant also requests that the Tribunal make an order to set the summonses aside (collectively, the summons issue). The grounds relied upon by the Applicant in support of her objection to the Tribunal giving leave to the Respondent to inspect the documents of Prof Wilcox and Dr Watson, and her request that the Tribunal make an order to set the summonses aside, are set out in the written submissions that were emailed to the Tribunal on 19 January 2024[25]. The Applicant’s supporting grounds as set out in her written submissions dated 19 January 2024 are summarised further below.
[25] For completeness, the email of 19 January 2024 also attached the Applicant’s Epstein-Barr Virus Serology Results from Douglas Hanly Moir Pathology dated 20 August 2013.
20.The Respondent, by way of reply, contends that the Tribunal should give them leave to inspect the documents of Prof Wilcox and Dr Watson. The reasons relied upon by the Respondent in support of their contention that they be given leave to inspect the documents of Prof Wilcox and Dr Watson are set out in their written submissions that they emailed to the Tribunal on 20 December 2023. These submissions were prepared by the Respondent and provided to the Tribunal in response to the Applicant’s written submissions dated 1 December 2023, and in compliance with direction 4 of the directions I gave at the Interlocutory Hearing that was held via video on 22 August 2023. The Respondent’s supporting reasons as set out in their written submissions dated 20 December 2023 are also summarised further below.
21.In order for the Tribunal to determine the result of the summons issue, an Interlocutory Hearing (hearing) was held via video on 19 January 2024. The hearing was scheduled to commence at 10am on 19 January 2024. However, by agreement between the parties, I decided that the hearing should start later on the same day at 3pm to avoid a potential exacerbation of the Applicant’s disabilities.
22.The Applicant attended the hearing via video alongside two of her support workers, namely, TW and CS. Peta Heffernan (Ms Heffernan) attended the hearing, also via video, as the solicitor for the Respondent. A staff member from the Agency also attended the hearing but via telephone.
23.Prior to the hearing that was scheduled to commence at 10am, the Tribunal received an email from the Applicant’s support worker attaching written submissions addressing the Tribunal on the summons issue. As the Respondent (like the Tribunal) had only received these written submissions shortly prior to the commencement of the hearing that was scheduled at 10am, I asked Ms Heffernan, as a matter of fairness, if the Respondent wanted further time to provide any written submissions in reply, addressing the Tribunal on any of the matters raised on the summons issue as set out in the Applicant’s written submissions. Ms Heffernan informed the Tribunal that, although the Respondent did not have the opportunity to review and consider the Applicant’s written submissions before the commencement of the hearing, they did not intend on providing any further written submissions. This, Ms Heffernan submitted, was to avoid any further delay on determining the result of the summons issue and the overarching proceeding.
24.As the Respondent did not wish to provide any further written submissions on the summons issue raised in the Applicant’s written submissions dated 19 January 2024, I stood the matter down to give the Applicant the opportunity to consider the Tribunal’s proposal and, furthermore, to discuss this with her two support workers. The Tribunal proposed that the Applicant and/or her support workers make oral submissions to the Tribunal regarding the summons issue by reference to her written submissions at the hearing scheduled for 19 January 2024. Following this, it was also proposed by the Tribunal that this be done without the need for holding a further hearing. This proposal was agreed to by the Applicant when the matter resumed later that morning. The hearing was stood down again and resumed later that day at 3pm for the reasons mentioned above in paragraph [21].
25.Following the morning adjournment, where the Applicant did not object to the proposal of the Tribunal mentioned above in paragraph [21], the Tribunal received a further email from the Applicant’s support worker, attaching a report from a psychologist recommending that the Applicant be given more time to prepare written submissions on the summons issue. This, in my view, was particularly misleading because the Applicant had agreed to, and moreover, had raised no objection with the Tribunal as to the proposal on how to proceed with the summons issue before the morning adjournment. In any event, as the Applicant had already provided the Tribunal with written submissions on the morning of the hearing in relation to the summons issue, I found no reason to delay the hearing of the summons issue any further.
THE APPLICANT’S SUBMISSIONS
26.In her written submissions, the Applicant sets out six grounds upon which she relies on in support of her objection to the Tribunal giving the Respondent leave to inspect the documents produced of Prof Wilcox and Dr Watson and in relation to her request that the Tribunal set the summonses aside. The Applicant’s six grounds are as follows:
·Ground 1 – the Respondent’s request to the Tribunal to issue summonses to Prof Wilcox and Dr Watson amounts to an abuse of process;
·Ground 2 – the Applicant does not consent to another person/medical practitioner reviewing private medical records and files;
·Ground 3 – the Respondent has failed to demonstrate to the Tribunal that the documents of Prof Wilcox and Dr Watson have a forensic or legitimate purpose relevant to the Tribunal’s determination of the substantive issue on the review;
·Ground 4 – the Respondent’s request to the Tribunal to issue summonses to Prof Wilcox and Dr Watson amounts to nothing more than a ‘fishing expedition’;
·Ground 5 – the release of the Applicant’s medical records to the Respondent will contain sensitive information that was disclosed in confidence by the Applicant to her treating practitioners and will have a traumatising impact upon her mental health;
·Ground 6 - the expectation that the Applicant will review the documents upon production to identify those not relevant to the substantive issue on the review will create an unreasonably onerous burden on the Applicant's such that it will:
oadversely impact upon the Applicant’s physical and mental health;
ocreate an unreasonable burden upon the Applicant’s physical and financial resources to complete;
otake a significant amount of time for the Applicant to review such documents if called upon because of the impediments caused by the Applicant’s mental health, physical disabilities and limited financial resources; and
ocause an unnecessary delay in the proceeding.
Ground 1
27.The first ground relied upon by the Applicant is that the Respondent’s request to issue summonses to Prof Wilcox and Dr Watson made on 6 April 2023 amounts to an abuse of process. According to the Applicant, this is due to the request having been made at a late stage in the proceeding. The Applicant argued that the following matters support her contention that the Respondent’s request to issue summonses to Prof Wilcox and Dr Watson amounts to an abuse of process:
·These proceedings commenced approximately four years ago;
·The position of the Respondent has been that it did not have an obligation to provide supports for the secondary disabilities – particularly CFS;
·The Respondent did not contest the existence of the CFS;
·The Respondent issued summonses approximately three years into proceedings;
·The result of those summonses has been to deprive the Applicant of her right to procedural fairness and to participate in the process and to delay the substantive proceeding by at least nine months, and likely up to 10-12 months;
·The submissions of the Respondent as to why they require the documents are, according to the Applicant, spurious and misleading in nature. The Applicant submitted that the Respondent has been aware of the cause of her CFS from the 15 July 2022 report of Dr Tsingos (i.e., 2012 Epstein Barr virus). The Applicant submitted that the Respondent is also aware of the treatment for her CFS from this report. Furthermore, the Applicant submitted that the documents of Prof Wilcox and presumably (not specified) of Dr Watson are outmoded and outdated, and thus, according to the Applicant are neither relevant nor helpful to the Tribunal in determining the substantive issue on the review. The Applicant gives the following examples in support of this contention:
oThe issuing of the summonses was far too late in the proceeding and should never have been allowed by the Tribunal in the first place;
oThe Respondent has been on notice of the Applicant’s CFS diagnosis since 24 January 2019, and it has chosen to undertake no effort to obtain these documents prior to April 2023;
oAside from actual delay in the proceeding, the possible outcome may well be the need for the Applicant to obtain medical evidence to address some spurious arguments of the Respondent that might arise from the documents of Prof Wilcox and Dr Watson. This, the Applicant, submitted is a burdensome obligation; and
oThe Respondent, according to the Applicant, did not question the legitimacy or validity of the Applicant’s CFS diagnosis at the time that she became a participant in the NDIS. However, the Applicant submitted that the legitimacy and validity of her CFS diagnosis was only raised during the course of the Tribunal proceeding in response to the Applicant’s request for supports relating to her CFS diagnosis.
Ground 2
28.The second ground relied upon by the Applicant is that she feels both disempowered and had no voice regarding the handing over of her personal/private health information to the Tribunal and Respondent. Furthermore, the Applicant submitted that the Respondent failed to obtain her consent before making their request to the Tribunal on 6 April 2023 to issue the summonses to Prof Wilcox and Dr Watson.
29.In support of Ground 2, the Applicant relies on the following exchange that occurred between the Tribunal and the parties at the Interlocutory Hearing held on 22 August 2023 as is recorded on the transcript:
MEMBER: I think her objection is the scope of the request. Look, I have to say, PRLT, I’m not sure whether that’s going to have much significance given that the documents have already been produced.
PRLT: I guess that, you know, that’s the problem with the proceeding and the way the tribunal is conducting itself. And so, you know, but as you said they’ve already been produced. If there’s an issue with the scope then we need to look at that first before we can look at the actual documents.
MEMBER: Well, I’m going to give you the opportunity to make submissions about that and then whether the Respondent should be given leave to inspect the documents as part of the process. All right, so I’ll give you 21 days and then, Ms Heffernan, I’ll give the Respondent 21 days thereafter to provide any response. But the times might change subject to PRLT needing more time.
MS HEFFERNAN: Yes, that’s fine.
MEMBER: All right. And then I think what we’ll do – I’m happy to hold another interlocutory hearing via video so the parties can make submissions about their particular positions on the summonses.
PRLT: Sorry, just one final thing. That document that I’m submitting to the tribunal today, if someone could please have a look over that and take any actions in relation to the document that’s been submitted, that would be very helpful (indistinct).
MEMBER: Sorry, I didn’t know what you mean.
PRLT: So the document that I tried to submit before this discussion today – and apologies, I don’t really fully understand all of this – if the tribunal could please have a look at the document and take any actions that need to be taken in relation to that document that I’m putting through.
MEMBER: Okay. I’m not sure that we can. But look, if it’s – if you want to rely on that information for the purposes of the objection to the summons and the scope of the summons, you can do that. Does that make sense?
PRLT: Well, I will want to rely on it for – probably for some of it. But I guess (indistinct) with the response to their statement of issues.
MEMBER: Okay, all right. Yes, I’m not sure that that’s really relevant to the summons issues. But I haven’t seen the updated statement of issues because it hasn’t come through yet.
30.The Applicant submitted that regulatory bodies such as the Office of the Australian Information Commissioner and the Australian Health Practitioner Regulation Agency sets out the requirements for individuals to have a say and control in the use of personal information as well as requirements for medical professionals to obtain consent from the party involved when sharing the information.
31.The Applicant submitted that her right to privacy, especially in respect of sensitive personal information, contained in medical or psychological counselling records, is an important consideration for the Tribunal in determining the result of the summons issue. As such, the Applicant submitted that her right to privacy and consent have been breached and thus the Summonses to Prof Wilcox and Dr Watson should not have been issued by the Tribunal on 11 April 2023.
Ground 3
32.The third ground relied upon by the Applicant is that the Respondent has failed to demonstrate that the documents of Prof Wilcox and Dr Watson have a forensic or legitimate purpose relevant to the Tribunals consideration of the substantive issue on the review.
33.The Applicant submitted that the Respondent has failed to demonstrate that the documents produced by Prof Wilcox and Dr Watson can be properly or fairly described as assisting the Tribunal in the resolution of the substantive issue on the review. Furthermore, the Applicant submitted that the Respondent did not obtain her consent to request that summonses be issued to Prof Wilcox and Dr Watson. In support of Ground 3, the Applicant relies on the exchange that occurred at the Interlocutory Hearing on 22 August 2023 between the Tribunal and the Applicant:
PRLT: I think they need to be more specific than just what the purpose is. I think the actually need to get – because in previous summons’ they’ve been very, very, very broad.
MEMBER: Okay. All right. Why don’t we start with Professor Wilcox, Ms Heffernan(?). Look, perhaps I’ll start. I understand the reason behind requesting was because it goes to one of the issues in dispute. And as I understand it relates to your chronic fatigue syndrome, PRLT. And as I understand – correct me if I’m wrong because I haven’t had a lot of involvement in this case – but I understand you’re seeking more supports based upon that condition.
PRLT: So I think again I’m going to insist that the Respondent and their view is incorrect, that they are fixated on a diagnosis rather than on my function and my needs for my function. I’m already on the NDIS. I’m already a participant. And case law is not supportive of their argument of going fishing for information and a diagnosis.
MEMBER: Okay. The case law is pretty clear. It’s a pretty low threshold. There has to be some apparent potential relevance to the issue in dispute.
34.The Applicant submitted that the primary reason for the Respondent’s request to issue the summonses was in order to examine the cause of the Applicant’s diagnosis of CFS and, furthermore, to seek to understand the treatment(s) required.
35.With regard to the reasons put forward by the Respondent, which the Applicant submitted were founded upon a misrepresentation of the facts and also the negative history of this condition, or, in her words, the Respondent has attempted to mislead the Tribunal “into the belief that these things are not already known and/or not already in evidence”.
36.The Applicant submitted that the cause of her diagnosis of CFS is already known to the Tribunal – this being the Epstein Barr Virus previously contracted by the Applicant in 2012. This was documented by way of a pathology test result as set out in the report of Dr Tsingos.
37.The Applicant submitted that the Respondent knows this to be the case, or ought to have reasonably known, in the course of the proceeding and indeed at the time of making the request to issue the summonses. Again, the Applicant submitted that the Respondent has misled the Tribunal, and in doing so has breached their obligations of a model litigant.
38.The Applicant submitted that the cause of her CFS and its diagnosis is confirmed in the report of Dr Tsingos dated 15 July 2022. The Applicant submitted that they both post-date the documents produced by Prof Wilcox.
39.The Applicant submitted that the report of Dr Tsingos, dated 15 July 2022 is the most recent clinical medical evidence that is before the Tribunal. The Applicant also submitted that the report of Dr Tsingos clearly sets out the diagnostic process, treatment, and effectiveness of her current regime, and on this basis, claims that the material which the Respondent seeks is already known and available to the Tribunal and has been for several years.
40.The Applicant submitted that she initially saw Prof Wilcox in 2018 and her last consultation was approximately in early 2019. In this regard, the Applicant submitted that the documents of Prof Wilcox are outmoded and outdated, and thus do not provide any relevant data in relation to her CFS diagnosis. The Applicant submitted that this is because the clinical process has proceeded well beyond the medical information available to Prof Wilcox. In the Applicant’s view, this is due to the substantial progression of her condition.
Ground 4
41.The fourth ground relied upon by the Applicant is that the Respondent’s request to issue the summonses amounts to nothing more than a ‘fishing expedition.’ The Applicant submitted that the information requested on the summonses (or the scope of the request) is too generalised, and moreover, the Respondent has not articulated how the information sought will be relevant to the determination of the substantive issue on the review; i.e., a forensic or legitimate purpose in order to produce the documents.
42.The Applicant, in her words, submitted to the Tribunal that the Respondent is ‘trawling’ to find a case on the basis of unsupported speculation, and therefore there is no reasonable basis for them to be given leave to inspect the documents of Prof Wilcox and Dr Watson.
43.The Applicant submitted that the medical records produced by Prof Wilcox and Dr Watson are irrelevant and thus should not be considered when the Tribunal determines the substantive issue on the review. Furthermore, the Applicant submitted that if the Tribunal were to have regard to these documents that she would be denied procedural fairness.
44.The Applicant submitted that she believed her medical records to be private and confidential and therefore it is not appropriate for the Tribunal to give leave to the Respondent to inspect the documents of Prof Wilcox and Dr Watson.
Ground 5
The fifth ground relied upon by the Applicant is that the release of the Applicant’s medical records to others, including the Respondent will have a traumatising impact upon her because they contain sensitive information that she disclosed in confidence to both Prof Wilcox and Dr Watson. The Applicant submitted that the Respondent has requested that the summonses be issued without due regard to the likely significant undue stress to the Applicant’s health if they are given leave to inspect them.
The Applicant submitted that the principles as set out in my decision in the case of HXJZ and National Disability Insurance Agency [2022] AATA 826 (HXJZ) are applicable to her circumstances. The Applicant claims that these principles support her contention that the release of the documents of Prof Wilcox and Dr Watson to others, including the Respondent, will most likely re-traumatise her because these documents contain sensitive information that she disclosed in confidence during consultations with both Prof Wilcox and Dr Watson.
Ground 6
47.The sixth and final ground relied upon by the Applicant is in regard to the expectation that she has to take the time to review the documents of Prof Wilcox and Dr Watson, in order to identify irrelevant material in relation to her review application. The Applicant argues that this will, in turn, create an unreasonable burden on her. She argued that the following matters should be considered by the Tribunal in deciding whether or not the Respondent should be given leave to inspect the documents of Prof Wilcox and Dr Watson:
·The Applicant has a diagnosis of dysgraphia. The Applicant claims that there is a significant disparity in power in the proceeding (i.e., an inequity of resources) between the Respondent and the Applicant. She also claims that having to attend hearings at the Tribunal without legal representation, (due to her limited means, access, and resources) affects her capacity to engage in paid employment. This, she speculates, reduces the time she is able to engage in activities each day. The Applicant claims to be affected with photophobia and light sensitivity. This, she notes, prohibits her in engaging with administrative tasks and scheduling events.
·The Applicant has been seeking additional carer support due to a recent problem in relation to the current set up of care she receives. This, the Applicant claims, has severely interrupted the Applicant's ability to cope with what she describes as “an onerous workload” facilitated by the Respondent’s request to issue summonses, and the Tribunal’s directions that she provides written submissions on the summons issue.
·The Applicant claims that there have been significant delays in her capacity to put together her written submissions, which she claims is the fault of the Tribunal. This, she says, is due to the Tribunal not providing, in a timely matter, a transcript of the Interlocutory Hearing of 22 August 2023. The Applicant has argued that this has exacerbated her impairments, including her anxiety. Thus, the Applicant says that she was unable to understand or comprehend the complexity of the matter, coupled with the exacerbation of her diagnosed conditions curtailed her capabilities and capacity to engage and understand the Tribunal proceeding.
Again, the Applicant submitted that the principles as set out in the decision of HXJZ apply to the circumstances of her case.
The Applicant submitted that a failure to adhere to the NDIS Service Charter would create an unreasonable burden upon her physical and mental impairments and financial resources. This, the Applicant argues, is due to the time it would take her to undertake the task of reviewing the documents of Prof Wilcox and Dr Watson.
The Applicant submitted the failure of the Tribunal to have provided her with access to interpreters, representation and information has caused an unnecessary delay in the proceeding. This, the Applicant argues, is because she was not aware of the content of the Interlocutory Hearing of 22 August 2023.
The Applicant submitted that the AAT Accessibility Access Guide outlines that the Tribunal is required to cater to the needs of persons living with a disability; making electronic and printed material available in appropriate formats such as large print, and ensuring the website meets Australian Government accessibility guidelines and standards. However, the Applicant argued that it was only after significant administrative navigation that she was able to secure a transcript of the hearing of 22 August 2023.
The Applicant submitted that clause 7.4 of the Review of National Disability Insurance Scheme Decision Practice Direction (the Practice Direction) is relevant to Ground 6. For ease of reference, clause 7.4 of the Practice Direction provides as follows:
The Member will control the procedure in the Hearing, which will be as informal as possible. We will not allow the formalities that usually apply in courts. The rules of evidence that apply in courts do not apply in the AAT. We will consider all the evidence that is relevant to the issues to be determined unless there is a legal reason why we cannot consider it.
53.The Applicant submitted that the Respondent acted contrary to clause 7.4 of the Practice Direction during the Interlocutory hearing on 22 August 2023. The Applicant then cites what she said during this hearing in response to me seeking clarification, which has been reproduced at page 8 of the transcript of 22 August 2023:
PRLT: It does. But apologies, as I said, I don’t understand all this stuff. So, I’m trying. I’m trying.
Other matters
54.In addition to the matters raised in her written submissions on the summons issue, the Applicant has also raised a number of other matters that I propose to deal with further below. The other matters raised by the Applicant can be summarised as follows:
·The Applicant submitted that despite her lodging an oral objection with the Tribunal on 12 April 2023 (during a telephone conversation that ensued between the Applicant and the Listing Manager of the Tribunal) to the issuing of the summonses, her objection was not provided to a Tribunal member for a hearing. As a result, the Applicant submitted that she has been denied procedural fairness.
·The Applicant submitted that due to the re-triggering nature of the PTSD she experiences, that she has not been able to review the documents of Prof Wilcox and Dr Watson. Thus, it was submitted by the Applicant that she could not provide adequate or detailed submissions regarding the documents of Prof Wilcox and Dr Watson.
·The Applicant submitted that the Respondent had not engaged with her in the proceeding as a model litigant because they had failed to provide her with notice of the expiration of the funding in her participant plan that they had approved on 2 August 2023. The Applicant submitted this was done intentionally and recklessly, without regard to their obligations as outlined above. Furthermore, the Applicant submitted that this reduced her capacity to address the summons issue, including the preparation of submissions and reviewing the documents of Prof Wilcox and Dr Watson in accordance with the timetable set by the Tribunal.
·The Applicant claims that despite being incapable of participating, she was forced by the Tribunal to attend the hearing on 19 January 2024.
·The Applicant submitted that she was required to impose upon an unnamed third party to rapidly complete her written submissions on the summons issue overnight in order for her to be able to address the Tribunal coherently at the hearing on 19 January 2024.
·With regard to what the Applicant considered to be an expediated summons process, she submitted that the written submissions (prepared overnight by an unnamed third party) were incomplete and lacking in detail.
·With reference to the previous Interlocutory Hearing that the Tribunal held via video on 22 August 2023 to discuss the summons issue, the Applicant submitted to the Tribunal that due to her learning disorder, namely dysgraphia, that she was unable to comprehend fully and understand the audio that was communicated at this hearing.
·The Applicant submitted that she was required to provide written submissions on the summons issue by 25 October 2023. The Applicant submitted that it was not possible for her to meet this deadline due to her support workers being on leave during this period and was thus impracticable. Moreover, she submitted that she had not been provided with the transcript of the Interlocutory Hearing of 22 August 2023 within a reasonable time frame, and was therefore unable to meet this deadline, despite requesting that she be granted more time.
THE RESPONDENT’S SUBMISSIONS
55.In their written submissions dated 20 December 2023, the Respondent sets out their reasons in support of why the Tribunal should give them leave to inspect the documents of Prof Wilcox and Dr Watson. The Respondent argues that as the summonses were appropriately issued, and that the documents are relevant or potentially relevant to the substantive issue on the review, they should be given leave to inspect the documents.
CHRONOLOGY
The Tribunal considers the chronology set out below covering the period from 6 April 2023 up to and including 19 January 2024 to be relevant to determining the result of the summons issue and the other matters that are raised in the Applicant’s written submissions dated 19 January 2024.
On 6 April 2023, the Respondent, in the approved form[26], requested that the Tribunal issue summonses to Prof Wilcox and Dr Watson for the production of documents regarding the Applicant and any treatment they may have provided to the Applicant. This request was made by the Respondent after having undertaken a review of two sets of documents that had been provided to the Tribunal earlier in the proceeding in 2021 and 2022.
[26] See in particular, regulations 7 and 11 of the Administrative Appeals Tribunal Regulations 2015.
The first set of documents reviewed by the Respondent included the further material that the Applicant lodged with the Tribunal between 2021 and 2022[27]. The second set of documents reviewed by the Respondent included the documents that several of the Applicant’s health and medical practitioners and other medical specialists produced to the Tribunal under summons on 18 May 2022. These documents were produced to the Tribunal in response to the summonses that were issued by the Tribunal on 21 April 2022.
[27] The further material lodged by the Applicant that the Respondent reviewed before making their request to the Tribunal on 6 April 2023 to issue summonses to Prof Wilcox and Dr Watson is identified by the Respondent at paragraph [9] of their Updated Statement of Issues dated 27 October 2021 and at paragraph [9] of their Further Updated Statement of Issues dated 13 June 2023.
Although the Applicant’s other health and medical practitioners and specialists produced their documents to the Tribunal on 18 May 2022, the Respondent was not able to undertake a review of them until after 5 January 2023. This is the date that Senior Member Clauson directed that the Respondent be given leave to inspect the documents[28].
[28] See the order made by Senior Member Clauson on 5 January 2023.
Relevant to the decision to make a further request to the Tribunal on 6 April 2023 to issue summonses to Prof Wilcox and Dr Watson, the Respondent, when undertaking a review of the documents mentioned above in paragraphs [57] and [58], and in particular, documents produced under summons by the Applicant’s treating General Practitioner, Dr Tsingos and her treating Rheumatologist, Associate Professor Fredrick Joshua (A/P Joshua), submitted to the Tribunal that they became aware that the Applicant had previously been referred to Prof Wilcox and Dr Watson for investigation and treatment in relation to the Applicant’s POTS diagnosis. This, according to A/P Joshua, was considered to be related to the Applicant’s CFS diagnosis as noted by Respondent in their written submissions dated 20 December 2023[29].
[29] See paragraph [19] of the Respondent’s written submissions dated 20 December 2023.
The reasons given by the Respondent for making their request to the Tribunal on 6 April 2023 to issue summonses to Prof Wilcox and Dr Watson, is that the Respondent considered the documents would assist the Tribunal in considering the substantive issue on the review. Furthermore, the Respondent argued that the summonses to Prof Wilcox and Dr Watson should be issued by the Tribunal in order for the parties to progress their evidence for the purpose of the proceeding.
On 11 April 2023, an authorised officer of the Tribunal[30], issued summonses to Prof Wilcox and Dr Watson, which in turn, required them to produce all clinical notes, records, correspondence, referrals, reports, test results or any other documentation held manually and electronically by them concerning and arising out of their treatment or consultation, relating to the Applicant. The summonses specified that Prof Wilcox and Dr Watson were to produce their documents to the Sydney Registry of the Tribunal at 8.45am on 10 May 2023.
[30] See the interpretation provision in section 3 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) which provides that an authorised officer means an officer of the Tribunal who has been authorised by the President of the Tribunal under section 59B of the AAT Act for the purposes of the provision in which the expression occurs.
The parties were given notice on 11 April 2023 of the summons decision mentioned above in paragraph [62]. The notice informed the parties that on the summons return date, namely, on 10 May 2023, or upon receiving the documents, the Applicant will be given leave first to inspect the documents of Prof Wilcox and Dr Watson. The notice informed the parties that 14 days thereafter, the Respondent would also be given leave to inspect the documents. Finally, the notice informed the parties that if the Applicant objected to either the issuing of the summonses to Prof Wilcox and Dr Watson or to the Tribunal giving leave to the Respondent to inspect their documents, she should contact the Tribunal within 14 days from the date of the notice.
After receiving the notice mentioned above in paragraph [63], the Applicant, on 12 April 2023, contacted the Tribunal via telephone to speak with the Listing Manager of the Tribunal. The purpose of this telephone call was so that the Applicant could lodge her objection with the Tribunal in regard to the issuing of the summonses to Prof Wilcox and Dr Watson, and to the Tribunal giving the Respondent leave to inspect those documents, upon their production. During this conversation, as recorded by the Listing Manager in her contemporaneous file note, the Applicant stated, amongst other things, that she wanted the summonses issued to Prof Wilcox and Dr Watson ‘stopped’ on the basis that the Respondent had neither obtained her consent, nor notified her prior to 6 April 2023, that they would be making a further request to the Tribunal to issue summonses to Prof Wilcox and Dr Watson for the production of their documents.
On 14 April 2023, after being prompted by the Tribunal, the Respondent sent an email to the Applicant and two of her support workers attaching a copy of the two requests they made to the Tribunal on 6 April 2023 to issue summonses to Prof Wilcox and Dr Watson together with a sealed copy of the two summonses that the Tribunal issued to both specialists on 11 April 2023 to produce their documents.
The Tribunal listed the summons issue for an Interlocutory Hearing before me on 28 April, 12 May, 6 June, 7 and 28 July, and also 17 August 2023. Other than the hearing scheduled for 6 June 2023, all of the remaining scheduled hearings were vacated at the request of the Applicant.
The Tribunal eventually held an Interlocutory Hearing on the summons issue via video on 22 August 2023. At this hearing, the Tribunal gave the following directions:
1.The Applicant is to be given leave to inspect the documents produced under summons by Professor Wilcox and Dr Watson for a period of 21 days from the date of this Direction.
2.Within 21 days from the date of this Direction, the Applicant is to lodge with the Tribunal and give to the Respondent any submissions pertaining to the scope of the Respondent’s request to summons documents from Professor Wilcox and Dr Watson.
3.Within 21 days from the date of this Direction, the Applicant is to lodge with the Tribunal and give to the Respondent any submissions objecting to the Respondent having access to the documents described at paragraph [1].
4.Within 21 days of receiving submissions from the Applicant as described at paragraphs [2] and [3] above, the Respondent is to lodge with the Tribunal and give to the Applicant any submissions in reply.
For completeness, the Tribunal also determined, at the Interlocutory Hearing on 22 August 2023, the request that the Applicant made to the Tribunal on 19 July 2023 to issue a summons to the Respondent for the production of their documents relating to the Applicant becoming a participant in the NDIS. For the short oral reasons I gave at that hearing, the Applicant’s request to issue a summons to the Respondent was refused on the basis that the documents she requested were not relevant to the substantive issue on the review.
Following the Interlocutory Hearing, the Applicant’s support worker made a request to the Tribunal for the transcript of the hearing of 22 August 2023, to be provided to her at no cost. The Applicant’s request to be provided with the transcript at no cost was approved, however, as a result of delays with the transcription, the Applicant did not receive the transcript until 17 October 2023.
On 23 August 2023, the Tribunal, by email, provided the documents of Prof Wilcox and Dr Watson to the Applicant to review for the purpose of providing submissions to the Tribunal on the summons issue.
On 5 September 2023, the Applicant’s support worker made a request to the Tribunal for the Applicant to be given more time to comply with the directions that were given on 23 August 2023 for the following reasons:
The Applicant is writing to the Registry to request an extension on the 21 days to inspect the dmaterial (sic) within the summons dated 23/08/2023.
The Applicant was only discharged home from hospital 28/08/2023, returning home to insufficient support and is significantly struggling with her mental and physical wellbeing.
As discussed in the interlocutory hearing on 22/08/2023 with Tribunal Member Peter Smith, an extension was allowed; provided it was notified in writing and within a reasonable timeframe of the due date.
The Applicant would like to request an additional 30 business days to allow time to assist the Applicant to review the summons material and allow for her to communicate her objections with assistance due to intellectual disabilities noted on her file.
72.On 8 September 2023, the Tribunal varied the directions that were given by the Tribunal on 23 August 2023. The directions as varied provided as follows:
1.The Applicant is to be given leave to inspect the documents produced under summons by Professor Wilcox and Dr Watson for a period of 21 days from the date of this Direction.
2.On or before 25 October 2023, the Applicant is to lodge with the Tribunal and give to the Respondent any submissions pertaining to the scope of the Respondent’s request to summons documents from Professor Wilcox and Dr Watson.
3.On or before 25 October 2023, the Applicant is to lodge with the Tribunal and give to the Respondent any submissions objecting to the Respondent having access to the documents described at paragraph [1].
4.Within 21 days of receiving submissions from the Applicant as described at paragraphs [2] and [3] above, the Respondent is to lodge with the Tribunal and give to the Applicant any submissions in reply.
73.On 12 October 2023, the Applicant made a request to the Tribunal seeking more time to comply with the directions that were given on 23 August 2023 and that the Tribunal varied on 8 September 2023 for the following reasons:
The Applicant needs a written transcript because of her medically diagnosed Specific Learning Disorder of Written Expression (Dysgraphia); this cognitive impairment affects her ability to comprehend audio information and make notes. As such, she is unable to process the details of the most recent AAT hearing. Securing the transcript of the Interlocutory Hearing by Video that occurred on 22 August 2023 has taken longer than expected; the first request was made on 15 September and, as per the email below, we expect to receive a copy of the transcript on Tuesday 15 October. The Applicant, due to disability accessibility, will not be able to complete their response to the AAT.
It would be equitable to grant this extension because the Applicant's disability increases the time required to engage with complex administrative tasks or where prolonged reading comprehension efforts are required.74.On 19 October 2023, the Applicant’s support worker requested that the Respondent agree to remitting the decision they made on remittal on 2 August 2023, to approve a SOPS in the Applicant’s Plan for further consideration[31]. The following reasons were given in support of this request:
[31] The Tribunal notes that on 25 July 2023, the Tribunal remitted the matter to the Chief Executive Officer of the National Disability Insurance Agency under section 42D of the Administrative Appeals Tribunal Act 1975 (Cth) for further consideration.
PRLT fears that her recent changes in circumstances, an eviction and recent hospitalisation, have exposed her to the risks of having her funding run out during the December holiday/services shutdown period. PRLT wants to ensure that, if needed, Short-Term Accommodation is the key point to consider. PRLT wants to flag this as an issue now so it does not deteriorate. To support essential spending and to ensure the continuation of funding, a s42d remittal should be undertaken as soon as possible.
The following changes in circumstances are why this assessment needs to occur:
1. There have been, and are projected to be, many more delays due to PRLT’s medically diagnosed Specific Learning Disorder of Written Expression (Dysgraphia); this cognitive impairment affects her ability to quickly comprehend complex written documents and the speed at which PRLT can respond;
2. Hospitalisation disruptions. PRLT was hospitalised throughout the month of August, from around 28 July to 28 August, which caused an instead support need and costs upon her return to home;
3. The current house at [suburb]was delayed due to the property not meeting disability accessibility requirements, PRLT took occupancy of the above address approximately 15 September weeks ago but did not move in until 11 October 2023; and
4.There is a significant risk of PRLT being left without support due to the many public holidays throughout the Christmas shutdown period and is projected to be an increased cost due to ongoing financial pressures; considering the budget pressures PRLT is currently facing, especially with the inclusion of public holidays during the Christmas period.
75.On 26 October 2023, due to delays with the transcript of 22 August 2023 being provided to the Applicant, the Tribunal varied the directions that were given on 23 August 2023 and varied on 8 September 2023. The directions as varied on 26 October 2023 are as follows:
1.The Applicant is to be given leave to inspect the documents produced under summons by Professor Wilcox and Dr Watson for a period of 21 days from the date of this Direction.
2.On or before 24 November 2023, the Applicant is to lodge with the Tribunal and give to the Respondent any submissions pertaining to the scope of the Respondent’s request to summons documents from Professor Wilcox and Dr Watson.
3.On or before 24 November 2023, the Applicant is to lodge with the Tribunal and give to the Respondent any submissions objecting to the Respondent having access to the documents described at paragraph [1].
4.Within 21 days of receiving submissions from the Applicant as described at paragraphs [2] and [3] above, the Respondent is to lodge with the Tribunal and give to the Applicant any submissions in reply.
76.On 26 October 2023, the Respondent emailed the Applicant and her support worker to advise them of their position regarding the Applicant’s request to remit the decision the Respondent had made on 2 August 2023. Ms Heffernan in her email stated the position of the Respondent was as follows:
The respondent opposes any remittal on the basis that PRLT’s plan would be replicated on a pro rata basis on the basis that on previous occasions this has resulted in overspending of the funds in her plan such that funds are exhausted well before the scheduled review date in the plan.
Rather we are instructed that the agency will agree to initiate a plan reassessment to allow consideration of the change in PRLT’s circumstances and the premature exhaustion of funds in her plan. We propose that this still be done by a remittal to avoid jurisdictional issues. This of course is likely to take longer than the usual 10 business days allowed for in terms of remittal but our instructor will liaise with the planner to ensure this is done as soon as possible.
77.On 2 November 2023, the Applicant’s support worker emailed the Respondent to advise them of the Applicant’s position regarding the Respondent’s proposal to conduct a reassessment of the Applicant’s Plan in order to consider the Applicant’s change in circumstances as set out in her support worker email of 19 October 2023. In this email, the Applicant’s support worker stated that the Applicant would agree to a reassessment of her Plan on the condition that CEO of the Respondent agrees to the following terms as proposed by the Applicant:
It is additional to the below that full term funding access to continue. Funding is to remain fully released at the date of the plan delivery and not be delivered in instalments. To confirm, PRLT agrees to a full plan review under the following six terms:
1.the Respondent commits to returning a plan by 16 November 2023;
2.no decrease occurs to the funding of hours for support within core, capital, and capacity building supports;
3.the terms must include choice and control allowing no changes to how the current budget is managed: there is to be no agency-managed funding beyond what is currently agency managed and the only changes that are to occur is that more self-management is able to be granted, if desired by the Applicant;
4.the Respondent must agree to pay outstanding invoices (May to August 2023) from the previous s42 remittal;
5.there are to be no additional stated supports in the plan beyond what is currently included within existing stated support in the current plan; and
6.funding is to remain fully released at the date of the plan delivery and not be delivered in instalments.
The Applicant also raises that the s42D remittal is urgent and the projected date for the Applicant’s running out of funding is imminent and the prospect of running out of funding will leave the Applicant at increased risk of avoidable, adverse outcomes. The Applicant notes that there is no requirement for the Respondent to agree to the remittal order, as per the legislation: align="left">The Respondent is asked to respond to this correspondence by COB 6 November 2023. Additionally, the Respondent is asked to return a completed NDIS remittal plan by no later than 16 November 2023, noting that in the attached email from 19 October 2023, they continue to delay and have failed to respond by 27 October 2023. Failure to respond in a timely manner is a significant strain and potential breach of model litigant obligations.
On 6 November 2023, the Applicant told a Tribunal Officer of the Tribunal during a telephone conversation that ensued between them (and later confirmed in an email sent that day) that she was unable to comply with the directions that were given on 23 August 2023 and that the Tribunal varied on 8 September 2023 and 26 October 2023. The reasons given by the Applicant are as follows:
Further your (sic) were notified that the current issue of a 42D remittal issue is removing my ability to comply with the orders placed upon myslef (sic) in relation to the other current issue before the AAT of the subpoena as it is causing a significant redirection in support services. I am not able to work on this issue due to my disability without appropriate levels of support available to deal with all present issues both before the AAT and in the other parts of my life. this means i am not able to comply with the orders placed upon me in relation to the subpoena at this time due to the respondents behaviour.
On 10 November 2023, the Respondent advised the Tribunal that the CEO of the Respondent had, under section 48 of the Act, decided to conduct a reassessment of the Applicant’s Plan. In her email, Ms Heffernan confirmed the following details regarding the plan reassessment:
We confirm that the Agency will agree to arrange a plan reassessment as soon as possible and within 10 business days if PRLT is available. If so a planner from the Agency will contact her as soon as possible to arrange this.
Further, in relation to the other conditions sought on behalf of PRLT in the e-mail of 2 November, we confirm that the person at the Agency who will conduct the assessment is independent from the AAT proceedings and while the requested conditions are within the scope of the delegate who will make a planning decision, we cannot agree to these conditions as a condition for the assessment to take place.
On 24 November 2023, the Applicant failed to provide any written submissions on the summons issue in compliance with the directions given on 23 August 2023 and that the Tribunal varied on 8 September 2023 and 26 October 2023.
On 29 November 2023, the Applicant’s support worker advised the Respondent and the Tribunal that the funding for supports under the Applicant’s Plan approved on 2 August 2023 had been depleted.
In light of the depletion of funds, the Tribunal on 30 November 2023 remitted the matter to the CEO of the Respondent under section 42D of the AAT Act for further consideration.
On 30 November 2023, the Tribunal also sent an email to the Applicant reminding her that she had not complied with the directions that had been given and varied, requiring her to provide written submission on the summons issue.
On 1 December 2023, the Applicant provided to the Tribunal and to the Respondent, written submissions confirming her objection to the issuing of the summonses to Prof Wilcox and Dr Watson. Furthermore, she expressed this also applied to the Tribunal giving leave to the Respondent to inspect those documents and made the argument that she had been excluded from being able to make submissions on the Respondent’s request to issue the summonses. She also submitted that she was excluded from being able to make submissions on the relevance of the documents of Prof Wilcox and Dr Watson. As a result, the Applicant contended that she had been denied procedural fairness.
On 15 December 2023, the Respondent approved a SOPS in the Applicant’s Plan to commence from 15 December 2023 and to be reviewed by the Respondent by 14 June 2024.
On 20 December 2023, the Respondent provided to the Tribunal and to the Applicant their written submissions in reply, addressing the Tribunal on the summons issue.
On 4 January 2024, the Applicant emailed the Tribunal to request a vacation of the hearing scheduled for 19 January 2024 on the basis of a deterioration to the Applicant’s mental health that she argued had been caused by the Respondent and their conduct over the course of the proceeding. The Tribunal requested medical evidence from the Applicant in order to consider the legitimacy and validity of the Applicant’s claim. I refused to vacate the hearing because no medical evidence, as requested by the Tribunal, was provided.
PRINCIPLES
Section 39(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) outlines the responsibility of the Tribunal to provide the parties to a proceeding with a reasonable opportunity to present their case. This includes the opportunity to inspect any documents to which the Tribunal proposes to have regard to in reaching a decision, and, by extension, the opportunity to make submissions in relation to those documents.
Section 40A(1)(b) of the AAT Act provides the Tribunal with a power to summon a person to produce any document or other thing specified in the summons request. Section 40B(1) of the AAT Act provides the Tribunal with a power to grant a party leave to inspect a document or thing produced under summons.
It is commonly understood that the general principles concerning the issue of subpoenas by a court are equally applicable to the issue of summons by the Tribunal under section 40(1A) of the AAT Act[32]. Hence, a party cannot be compelled by another party to produce documents for inspection unless those documents serve a ‘legitimate forensic purpose’[33]. Accordingly, the material sought must have some ‘apparent potential relevance’ to the matters in issue[34].
[32] Cosco Holdings Pty Ltd v Commissioner of Taxation [1997] FCA 1504 (Cosco); Abela and Australian Prudential Regulation Authority [2008] AATA 397 (Abela); HXJZ and National Disability Insurance Agency [2022] AATA 826 (HXJZ).
[33] R v Saleam (1989) 16 NSWLR 14, 17–18 (Saleam); Attorney-General for New South Wales v Stuart (1994) 34 NSW 667 at 681 (Stuart).
[34] Australian Gas Light Co v Australian Competition and Consumer Commission [2003] FCA 1101; Comcare v Maganga [2008] FCA 285; Abela and Australian Prudential Regulation Authority [2008] AATA 397. See also Waind and Hill v National Employers’ Mutual General Insurance Association Ltd [1978] 1 NSWLR 372 at 373; Re Panagiotou and TNT Australia Pty Ltd [2011] AATA 565, [21]–[22], where the test was enunciated as ‘apparent relevance’.
The Tribunal has the power to set aside a summons if it believes that the request itself is an abuse of process and requires production of documents that are ‘manifestly irrelevant’[35]. As such, a summons request for an improper purpose, such as a ‘fishing expedition’ is not permitted[36].
[35] Trade Practices Commission v Kimberley Homes (1989) 217 ALR 110 at 113; Steel v Comcare [2018] AATA 481; HXJZ and National Disability Insurance Agency [2022] AATA 826, [37].
DISCUSSION
I now propose to deal with each of the six Grounds raised by the Applicant in her written submissions dated 19 January 2024 and the other matters raised therein.
Ground 1
The first Ground relied upon by the Applicant is that the Respondent’s further request to the Tribunal to issue the summonses to Prof Wilcox and Dr Watson on 6 April 2023 amounts to an abuse of process. She argues that she was not provided with the summonses in a timely manner and that this was due to the Respondent (mis)representing the case to the Tribunal.
The Applicant submitted, in support of Ground 1, that the position of the Respondent, is that they do not have an obligation to provide support to the Applicant for her CFS diagnosis. The Applicant became a participant in the NDIS on the basis of her GAD and MDD diagnoses. The supports that were approved by way of a SOPS on 21 May 2019, and varied on internal review on 19 December 2019, are specifically designed to assist the Applicant in meeting her disability support needs which arise from her GAD and MDD diagnoses.
At the time of considering the access request that the Applicant made on 24 January 2019, the CEO of the Respondent was required to determine whether or not the Applicant was a person who met the access criteria to become a participant in the NDIS. This included whether or not the Applicant met the disability requirements in relation to her diagnosis of CFS. The Respondent was not satisfied, on the evidence, at the time of considering the Applicant’s access request, that she was a person who met the disability requirements to become a participant in the NDIS on account of her CFS diagnosis.
The Applicant, in support of Ground 1, submitted that there was an inconsistency as to the position of the Respondent before and during the Tribunal proceeding, regarding her CFS diagnosis. On the one hand, the Applicant contends that the Respondent, prior to the commencement of the Tribunal proceeding, did not question either the legitimacy or the validity of her CFS diagnosis. However, on the other hand, the Applicant contends that the Respondent has, in fact, over the course of the Tribunal proceeding, questioned the legitimacy and validity of her CFS.
The Tribunal, on a fair reading of the material of the Respondent, notes that earlier in the course of the preceding, the Respondent did not make it entirely clear that they were not seeking to question the legitimacy and validity of the Applicant’s CFS diagnosis. This has understandably caused confusion to the Applicant. However, the Tribunal notes that the Respondent has since (on numerous occasions) clarified their position regarding the question of the Applicant’s CFS diagnosis.
For the avoidance of any doubt, the Tribunal notes that the question regarding the Applicant’s CFS diagnosis is not a substantive issue on the review that the Tribunal must determine. As mentioned earlier in this decision, the substantive issue on the review that the Tribunal is yet to determine is whether, on the evidence, the supports being requested by the Applicant satisfy the reasonable and necessary criteria as set out in section 34 of the Act and the Support Rules. This includes the supports the Applicant seeks for her POTS and CFS diagnoses.
The Applicant submitted in support of Ground 1 that the Tribunal should question the motives behind the Respondent’s decision to make their request to the Tribunal to issue summonses to Prof Wilcox and Dr Watson - three years into the Tribunal proceeding. The Tribunal agrees with the Applicant that the request to issue summonses to Prof Wilcox and Dr Watson was made by the Respondent late in the proceeding. However, in my view, it is necessary to give regard to the circumstances as to why the Respondent made their request to the Tribunal three years after the Applicant made her application to the Tribunal.
Firstly, the Tribunal notes that on 14 April 2022 the Respondent made an earlier request to the Tribunal to issue a number of summonses to several of the Applicant’s health, medical practitioners, and specialists. Those summonses were issued by the Tribunal on 21 April 2022. This was for the production of documents relating to the Applicant and to the treatment of her diagnosed conditions.
Secondly, the Tribunal notes that the Respondent was not given leave to inspect those documents until 5 January 2023[37]. This significant lapse in time was largely due to delays caused by the Applicant in presenting her case on the objection she then lodged against the Respondent being given leave to inspect those documents.
[37] See the order made on 5 January 2023 by Senior Member Clauson.
Thirdly, it was only after reviewing this material in early 2023 that the Respondent became aware that the Applicant had previously been referred to Prof Wilcox and Dr Watson for investigation and treatment and, in particular, in relation to her POTS, which, according to A/P Joshua, was related to the Applicant’s CFS diagnosis[38].
[38] See paragraph 19 of the Respondents written submissions dated 20 December 2023.
The Applicant submitted in support of Ground 1 that, as a consequence to the summonses to Prof Wilcox and Dr Watson being issued, she has been denied procedural fairness to participate in the Tribunal summons process, which in effect has caused a substantive delay in the overarching proceeding. The Tribunal, having considered this contention, does not accept it for the following reasons.
The Respondent is a party to the proceeding that the Applicant commenced for the purpose of having the Tribunal consider the approval and funding of what she regards as reasonable and necessary supports. As they are a party to the proceeding, they are entitled to obtain evidence and information in order to assist the Tribunal to arrive at the correct or preferable decision on the substantive issue on the review. Similarly, the Applicant, who is also a party to the proceeding, is entitled to obtain evidence and information, again in order, to assist the Tribunal to arrive at the correct or preferable decision on the substantive issue on the review.
The issuing of a summons, for the purpose of a proceeding before the Tribunal, is a lawful process, by which a party to a proceeding may request the production of documents from others, provided that the request is for a legitimate and proper purpose. This is to ensure that there is sufficient evidence and information that is relevant before the Tribunal to assist it in arriving at the correct or preferable decision on the substantive issue on the review.
The other party (in this case the Applicant) is given the first opportunity to inspect any documents that have been produced under summons, and lodge any objection with the Tribunal with regard to whether or not the Respondent should be given leave to inspect the documents. In this case, the Tribunal notes that the Applicant has lodged with the Tribunal her objection to the Respondent being given leave to inspect the documents of Prof Wilcox and Dr Watson.
The Tribunal notes that the Applicant was given leave on 23 August 2023 to inspect the documents of Prof Wilcox and Dr Watson. This was immediately following the Interlocutory Hearing that I held on 22 August 2023. At this hearing, the Tribunal discussed with the Applicant the summons processes of the Tribunal and also afforded the Applicant an opportunity to make written submissions addressing me on the reasons why the Respondent should not be given leave to inspect the documents of Prof Wilcox and Dr Watson. Furthermore, at the request of the Applicant, the Tribunal also afforded the Applicant the opportunity to provide any written submissions on the scope of the Respondent’s request to issue the summonses to Prof Wilcox and Dr Watson.
The Tribunal notes that the Applicant was afforded a further opportunity at the subsequent hearing that I held on 19 January 2024 to make oral arguments by reference to the Applicant’s written submissions on the summons issue. The Tribunal notes that the Applicant and TW, did indeed, make oral submissions by reference to the Applicant’s written submissions at the hearing on 19 January 2024, addressing me on the summons issue. This was after numerous hearing adjournments and extensions of time to provide material were, at her request, granted to the Applicant to enable her to participate on the summons issue.
The result of the summons issue was not determined by the Tribunal before hearing from the Applicant. It was determined by the Tribunal after holding two hearings and affording the Applicant the opportunity to make written submissions.
Accordingly, based on the above, I am not satisfied that the Applicant has been denied procedural fairness to prosecute her case on the summons issue.
The Tribunal does not accept the contention made for the Applicant in her written submissions on the summons issue that the issuing of the summonses has resulted in substantive delays in regard to the determination of the overarching proceeding. This is because the Applicant has, since April 2023, requested, and been granted adjournments of scheduled hearings, which resulted in a substantial delay for the Tribunal in determining the result of the summons issue. These delays, caused by the Applicant, have also resulted in a substantial delay to the determination of the overarching proceeding. For example, the Applicant was granted numerous adjournments to address the Tribunal on the summons issue and granted numerous extensions to provide written material on same.
The Applicant submitted in support of Ground 1 that the submissions of the Respondent as to why they require the documents of Prof Wilcox and Dr Watson in her words are spurious and misleading. The Tribunal does not accept this contention for the reasons I give in relation to Ground 3 as set out further below.
The Applicant submitted in support of Ground 1 that as the Respondent is aware of the treatment for her CFS, as set out by Dr Tsingos in his report of 15 July 2022, it was not necessary for the Respondent to request that the Tribunal issue the summonses. At the hearing, the Applicant, contended that this was because the documents of Prof Wilcox and Dr Watson are outdated and outmoded, and thus in her opinion not relevant to the substantive issue on review. The Tribunal notes that the Applicant makes the contention that the documents of Prof Wilcox and Dr Watson have no relevance or apparent relevance to the substantive issue on the review notwithstanding that she claims not to have reviewed their documents.
In my view the age of the documents of Prof Wilcox and Dr Watson are not relevant considerations in determining the result of the summons issue. Rather, the question for the Tribunal to consider, insofar as it relates to the summons issue, is whether the documents of Prof Wilcox and Dr Watson have any relevance to whether the supports sought by the Applicant are reasonable and necessary. This is in order to assist the Tribunal to determine the substantive issue on the review, namely whether the supports requested by the Applicant, in relation to her CFS diagnosis, are indeed reasonable and necessary for the purpose of section 34 of the Act and the Support Rules. Ultimately, it is for the Tribunal to decide the appropriateness of the documents of Prof Wilcox and Dr Watson. If the Applicant is of the view that the documents of Prof Wilcox and Dr Watson are not relevant to the substantive issue on the review on the basis of them being outdated and outmoded, it is open to her to make submissions at the substantive hearing, addressing the Tribunal on what weight it should give them.
The Applicant submitted in support of Ground 1 that it would create a difficulty for her, insofar as she may need to provide further medical evidence in response to what she perceives to be an illegitimate request from the Respondent for the production of documents. Whilst I acknowledge there may be some difficulties for self-represented litigants, including the present Applicant, it is nevertheless open to and up to the Applicant to obtain whatever evidence and information that she regards as relevant to assist the Tribunal to determine the substantive issue on the review.
Thus, I am not satisfied for the reasons given above that the Respondent’s request to issue summonses to Prof Wilcox and Dr Watson amounts to an abuse of process.
Ground 2
The Applicant submitted in support of Ground 2 that the Respondent failed to obtain her consent before making their request to the Tribunal on 6 April 2023 to issue summonses to Prof Wilcox and Dr Watson. The Applicant submitted that as the Respondent did not obtain her consent before making their request to the Tribunal to issue the summonses, she felt disempowered.
The Tribunal notes that there is no requirement for a party to obtain the consent of the other party when requesting medical records under a summons for the purpose of a proceeding before the Tribunal. The Tribunal notes that whilst the Applicant’s consent was not obtained by the Respondent prior to them making a request, it is nevertheless apparent that she has indeed been afforded the opportunity to raise her concerns about the issue concerning consent.
As such, for the purpose of establishing whether a summons request amounts to a fishing expedition, the meaning of ‘mere speculation’ does not encapsulate a determination of whether the documents being requested actually exist.[61] Instead, what is contemplated is whether the summons addressed to a party states “with reasonable particularity, the documents which are to be produced”.[62] As stated by King CJ in Hunt v Wark,[63] (with whom White and Millhouse JJ agreed):
There must be some reason to suppose that the documents sought will be capable of being used…
[61] Maganga.
[62] The Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 574 (Jordan CJ).
[63] (1985) 40 SASR 489 at 493 as quoted in Jones v Comcare [2019] AATA 5407, [14] (DP Forgie).
Thus, in Woodhouse and Comcare, directions were being sought by the Respondent which would allow disclosure of the entirety of the Applicant’s Medicare claims history. There, the Respondent’s solicitor conceded that the information being sought would not, of itself, assist the Respondent or the Tribunal in determining the substantive issues. Further, the Respondent’s solicitor also accepted that the material was being sought for the purpose of determining whether any of the medical practitioners’ records, listed in the initial claim’s history, should be further summonsed to ascertain whether anything relevant to the proceedings was contained therein.[64]
[64] At [6].
Similarly, in Jones v Comcare, the Respondent was issuing summons for:
“A Medicare claims history report and pharmaceutical claims history report detailing all claims and benefits made in relation to the Applicant.
The number of documents being requested amounted to what was roughly 35 years of material. The Tribunal set the summons aside on the basis that the Respondent’s intention was to filter the pool of substantive documents in an effort to locate any that related to the two decisions under review. Furthermore, no indication was given that any documents in the pool were actually relevant.[65]
[65] At [28].
These two Tribunal decisions are in stark contrast to the circumstances of the present case.
As mentioned above, the summons request made by the Respondent was for ‘all clinical notes, records, correspondence, referrals, reports, test results or any other documentation held manually and electronically by [Prof Wilcox and Dr Watson] arising out of [Prof Wilcox’s and Dr Watson’s] treatment or consultation relating to the Applicant’. While there may have been initial questions regarding the scope of what was being requested, the Respondent has since clarified its position. Additionally, the documents requested by the Respondent clearly fall within Moffitt P’s example of a permissible subpoena; a request to a hospital, or medical practitioner specifically in this case, to produce its file in respect of the medical treatment of the Applicant.
Furthermore, there is a sound basis for the Respondent making the request for summons. At paragraph 19 of the Respondent’s submissions dated 20 December 2023, the Respondent stated:
19. The records previously obtained pursuant to a summons to the Participant’s treating GP… and treating rheumatologist…indicate that the Participant was previously referred to Professor Ian Wilcox, cardiologist, and Dr Watson, neurologist, for investigation and treatment, and in particular in relation to a condition, Postural orthostatic tachycardic syndrome [(POTS)] which [the Applicant’s treating rheumatologist] considered was related to her CFS.
In my view, this is not mere speculation. While the Respondent had no way of knowing what material existed in the possession of Prof Wilcox and Dr Watson that could be of assistance to the Tribunal in resolving the substantive issue on the review, it has nevertheless demonstrated that the material summoned is adjectivally relevant to the substantive issue before the Tribunal, as the material is related to the Applicant’s treatment for her CFS diagnosis.
For it to constitute mere speculation as contended by the Applicant, the Respondent would have needed to issue summons to random medical practitioners or medical institutions in the hope that one or more may have, at some stage, treated, or even seen the Applicant, regarding her CFS diagnosis. A summons request of this nature would, no doubt of course, be set aside, as lacking foundation.[66] Thus, the Tribunal is satisfied that the Respondent’s requests to issues summonses to Prof Wilcox and Dr Watson does not, for the reasons, discussed above, amount to an impermissible ‘fishing expedition’.
[66] See Re Tsartas and CSL Ltd [2012] AATA 485 where the Tribunal refused to issue a summons to produce a list of treating medical practitioners in circumstances where no knowledge that any treatment had been sought was provided.
Ground 5
The Applicant submitted in support of Ground 5, in relation to the release of her medical records, that these records include sensitive medical information, and therefore argues that the Respondent should be disallowed to inspect these documents due to their sensitivity. Furthermore, the Applicant submitted to the Tribunal that it was likely her condition would be exacerbated if this was allowed. The Applicant submitted that the principles as set out in my decision of in HXJZ are applicable to the circumstances of her case. In this case (HXJZ), where the Applicant had a diagnosis of Complex Post Traumatic Disorder arising from childhood trauma. This was disclosed by HXJZ in confidence to her treating General Practitioner and Psychiatrist who considered this to be a likely trigger for re-traumatisation if indeed the documents that recorded this disclosure were released to others, including the Respondent to that proceeding. The Applicant in HXJZ provided compelling evidence from her treating General Practitioner and Psychiatrist that supported her claim of re-traumatisation.
Whilst the Tribunal accepts that the disclosures made by the Applicant to Prof Wilcox and Dr Watson during consultations are sensitive and were made in confidence the Applicant has not, as in the case of HXJZ, provided compelling evidence that meets such a threshold as required to enable non-disclosure in relation to the documents of Prof Wilcox and Dr Watson. The potential inspection of personal information is a consequence that any Applicant must face when applying for review of a decision, particularly if that information is relevant to the issues raised as part of the application.[67] The fact that information is regarded by the Applicant as personal and private does not, on that basis, render the information irrelevant.[68] Neither the Applicant nor the Respondent can control what is regarded by the Tribunal as relevant; it is for the Tribunal alone to resolve the question of relevance.
[67] Re Panagiotou and TNT Australia Pty Ltd [2011] AATA 565, [24]; MMMY v National Disability Insurance Agency [2022] AATA 3236, [17]–[19].
[68] Ibid.
Were the Tribunal to exclude potentially relevant information on the basis of one or both parties’ objections, a logical consequence of this is that it has the capacity to deprive the Tribunal from the opportunity to understand the Applicant’s need for the supports being requested, and the potential benefit of these supports. To exclude potentially relevant material on this basis would therefore prevent the Tribunal from reaching a fair and balanced conclusion in relation to the substantive issue on the review that the Tribunal is yet to determine.
In any event, the Applicant has, over the course of the proceeding, voluntarily provided to the Tribunal and to the Respondent a number of documents, prepared by her treating health and medical practitioners and specialists, each containing personal and sensitive information about her medical conditions and impairments. For the Tribunal to now refuse the Respondent’s access to potentially sensitive information regarding the Applicant’s medical conditions and impairments would be entirely inconsistent with the Applicant’s conduct thus far.
Ground 6
The Applicant submitted in support of Ground 6 that the power imbalance in the proceeding is asymmetrical between her and the Respondent. This, she argues, is because they are legally represented, and she is not. The Applicant submitted that her impairments cause her to have significantly reduced functionality, and, for example, her diagnosis of photophobia and light sensitivity prevents her from engaging in everyday tasks, such as administrative matters, and extends to reviewing the documents of Prof Wilcox and Dr Watson.
The Tribunal accepts that that the Applicant encounters limitations due to her disabilities, and the fact that she is not legally represented in this proceeding. However, the Tribunal notes that the Applicant has, over the course of the proceeding, been assisted by support workers. This includes assistance at hearings, and these support workers corresponding with the Tribunal regarding the Applicant’s case. The Tribunal notes that it has, on several occasions, over the course of the proceeding, accommodated the Applicant’s requests that she be given additional time to comply with directions, including the making of written submissions on the summons issue.
The Applicant submitted in support of Ground 6 that due to her having to seek additional carer support caused by recent problems, regarding the current care that she receives, this has disrupted her ability to cope with further responsibilities in relation to the proceeding, which, in her view, has been caused by the Respondent in making the request to issue further summonses and the Tribunal’s direction that she provide written submissions on the summons issue.
The Tribunal accepts that the Respondent’s request to issue summonses and the Tribunal’s direction that the Applicant provide written submissions has resulted in the Applicant having to undertake additional administrative onerous tasks. However, the Tribunal notes that reasonable and necessary adjustments have been made to accommodate the needs of the Applicant who has been granted numerous hearing adjournments and extensions of time to provide written material in support of her case on the objection she lodged with the Tribunal on 12 April 2023. Again, the Tribunal notes that the Applicant has, over the course of the proceeding, been assisted by support workers. This includes assistance on the summons issue.
The Applicant submitted in support of Ground 6 that due to the delay in providing her with a transcript of the hearing of 22 August 2023, that this resulted in her being unable to provide written submissions on the summons issue. This, she argues, has exacerbated her impairments, including anxiety. The Applicant submitted that this impacted on her capacity to engage with the Tribunal on the summons issue as she said she had difficulties with understanding what was discussed at the Interlocutory Hearing of 22 August 2023.
The Tribunal accepts that there was a delay in providing the transcript to the Applicant to assist her in the preparation of written submissions. However, due to the delay as identified above, the Applicant was given additional time, specifically for that reason, to make her written submissions.
The Applicant submitted in support of Ground 6 that a failure to adhere to the NDIS Service Charter would create an unreasonable burden upon her physical and mental impairments and financial resources. This, the Applicant argues, is due to the time it would take her to undertake the task of reviewing the documents of Prof Wilcox and Dr Watson.
The Tribunal is not required to adhere to the principles as set out in the NDIS Service Charter. The NDIS Service Charter is a commitment the Agency makes with NDIS participants. It does not extend to the Tribunal.
The Applicant submitted in support of Ground 6 that the failure of the Tribunal to have provided her with access to interpreters, representation and information has caused an unnecessary delay in the proceeding. This, the Applicant argues, is because she was not aware of the content of the Interlocutory Hearing of 22 August 2023.
The Tribunal notes that there has not been a request by the Applicant to provide an interpreter to assist her at hearings. The Tribunal notes that it is not the function of the Tribunal to provide parties to proceedings with legal representation, nor is it the function of the Tribunal to fund the cost of representation for the provision of legal services to a party to a proceeding to prosecute their case before the Tribunal. The Tribunal notes that there is information available, including on its website about how the Tribunal conducts reviews that may be relevant and of assistance to the Applicant. It is noteworthy, that this information is written in a clear and easy to understand way.
The Applicant submitted in support of Ground 6 that the AAT Accessibility Access Guide outlines that the Tribunal is required to cater to the needs of persons living with a disability; making electronic and printed material available in appropriate formats such as large print, and ensuring the website meets Australian Government accessibility guidelines and standards. However, the Applicant argued that it was only after significant administrative navigation that she was able to secure a transcript of the hearing of 22 August 2023.
For ease of reference, the AAT Accessibility Access Guide strives to cater to the needs of persons living with a disability by:
·making electronic and printed material available in appropriate formats such as large print, and ensuring the website meets Australian Government accessibility guidelines and standards;
·providing portable hearing loop systems in AAT premises;
·facilitating telephone contact for those with a hearing or speech impairment;
·making all premises wheelchair accessible; and
·providing facilities for participation in conferences or hearings by telephone or video link.
205.The Tribunal notes that over the course of the proceeding it has conducted numerous hearings and held numerous case conferences by video. This was done in order to cater to the Applicant’s specific disability support needs. The Tribunal notes that over the course of the proceeding it has provided information about the Tribunal and her case over the telephone. The information discussed via telephone has also been confirmed in writing and communicated to the Applicant by email. This has been done in order to cater to the Applicant’s specific disability support needs. The Tribunal notes that the Applicant’s support worker requested the transcript of the hearing of 22 August 2023 immediately following the hearing by completing the relevant form. This appears to have been done without difficulty. The issue with the transcript appears to be the time in which it took the Applicant being provided with the transcript.
206.The Applicant submitted in support of Ground 6 that clause 7.4 of the Review of National Disability Insurance Scheme Decision Practice Direction (the Practice Direction) is relevant to determining the result of the summons issue. For ease of reference, clause 7.4 of the Practice Direction provides as follows:
The Member will control the procedure in the Hearing, which will be as informal as possible. We will not allow the formalities that usually apply in courts. The rules of evidence that apply in courts do not apply in the AAT. We will consider all the evidence that is relevant to the issues to be determined unless there is a legal reason why we cannot consider it.
207.The Applicant submitted in support of Ground 6 that the Respondent acted contrary to clause 7.4 of the Practice Direction during the Interlocutory hearing on 22 August 2023. The Applicant then cites what she said during this hearing, which has been reproduced at page 8 of the transcript of 22 August 2023:
PRLT: It does. But apologies, as I said, I don’t understand all this stuff. So, I’m trying. I’m trying.
The specific example mentioned above in paragraph [207], was in response to a statement that I made during that hearing, and which was not presented in the Applicant’s submissions. The statement I made was in relation to the Applicant’s request to summons material from the Respondent, and in that statement, I questioned the relevance of that material being requested by the Applicant and its capacity to assist the Tribunal in resolving the substantive issue on the review. In that context, the Applicant’s statement that she ‘does not understand all this stuff’, which immediately proceeded my own, can only be understood as a reference to her lack of understanding of the summons process and the meaning of relevance of material, insofar as it related to assisting the Tribunal in resolving the substantive issue on the review. This is a completely normal response for someone dealing with a complex legal process that is unfamiliar with that process, and in no way demonstrated to the Tribunal, directly or indirectly, that the Applicant lacked cognitive capacity to understand what was being discussed.
In relation to the Applicant’s submission that the Respondent acted contrary to clause 7.4 of the Practice Direction, it is unclear what the Applicant has taken issue with here, other than noting that the conduct of the Interlocutory Hearing was, in some way, contrary to section 7.4 of the Practice Direction. There are three possibilities. Firstly, that I did not have control over the hearing. Secondly, the hearing was not conducted informally, and formalities that apply in courts, such as the rules of evidence, were nevertheless followed. Finally, that the Tribunal did not consider all relevant evidence that was not prevented by a separate legal reason. Given that the Applicant has referred to the summons process as a ‘subpoena’ in the proceeding paragraphs of her submissions — specifically at paragraphs 48, 49 and 50 — the second possibility appears to be the most likely outcome.
The question then is whether the Applicant takes the process of summons as equivalent to the rules of evidence, or whether it is a general comment on the strict nature of the summons process itself. Briefly, the rules of evidence, as they apply to the courts, are concerned with the admissibility of evidence. Thus, evidence that may be relevant is otherwise inadmissible because it fails to meet the requirements of any number(s) of rules of evidence. The rules of evidence are a complicated and interconnected set of principles that are not expected to be understood by applicants in a process where there is no requirement that they be legally represented. As such, section 33(1) of the AAT Act accommodates for this possibility, and states that the Tribunal is not bound by the rules of evidence but may otherwise be informed by them.
Alternatively, section 39 of the AAT Act mandates the Tribunal to ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present their case. This applies, in particular, to the parties being provided with a reasonable opportunity to inspect documents and to make submissions on those documents. Hence, section 39(1) of the AAT Act imports notions of procedural fairness,[69] a denial of which amounts to an error of law for the purposes of section 44 of the AAT Act.[70] Unlike the rules of evidence, which are not strictly applicable to matters before the Tribunal, the summons process under section 40A and 40B is an integral part to any evidence gathering procedure, which, by virtue of section 39(1), is informed by the principles of procedural fairness. Thus, in order to afford both parties a reasonable opportunity to examine and make submissions on summons material, a strict procedure is necessary. The Applicant may well admonish a formal procedure in what is otherwise an informal process, but this procedure is established to ensure that she is provided with the best opportunity to present her case to the Tribunal.
[69] Repatriation Commission v Farley-Smith (2007) 96 ALD 348; Comcare v Maganga (2008) 101 ALD 68.
[70] Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143.
Other matters
I now propose to deal with the other matters that are raised for the Applicant in her written submissions dated 19 January 2024.
The Applicant submitted that despite her lodging an oral objection with the Tribunal on 12 April 2023 (during a telephone conversation that ensued between the Applicant and the Listing Manager of the Tribunal) to the issuing of the summonses, her objection was not provided to a Tribunal member for a hearing. As a result, the Applicant submitted that she has been denied procedural fairness.
The Tribunal does not accept the contention made for the Applicant in her written submissions on the summons issue that the oral objection that she lodged with the Tribunal on 12 April 2023 was not provided to a Tribunal member for hearing. The Tribunal notes two days after lodging her oral objection, the Tribunal listed her matter for hearing. However, due to the Applicant’s numerous requests to vacate those hearings, the Tribunal did not hear the Applicant’s summons objection until 22 August 2023 and again on 19 January 2024.
The Applicant submitted that due to the re-triggering nature of the PTSD she experiences, that she has not been able to review the documents of Prof Wilcox and Dr Watson. Thus, it was submitted by the Applicant that she could not provide adequate or detailed submissions on the relevance of the documents of Prof Wilcox and Dr Watson.
Whilst I accept that the Applicant’s PTSD symptoms may have been re-triggered during the summons process, I find it implausible that the Applicant was not able to review the documents of Prof Wilcox and Dr Watson in accordance with the timetable set and varied by the Tribunal. As mentioned above, the Tribunal, has for the purpose of determining the result of the summons issue, reviewed these documents and notes that they are not exhaustive in content. Instead of complying with the directions given by the Tribunal, the Applicant appears to have diverged from her obligations as a party to the proceeding, including sending and arranging and instructing others during the summons process to correspond more frequently and inappropriately with the Tribunal and by providing material on questions that were neither relevant to the summons issue nor required by the Tribunal.
The Applicant submitted that the Respondent had not engaged with her in the proceeding as a model litigant because they had failed to provide her with notice of the expiration of the funding in her participant plan that they had approved on remittal on 2 August 2023. The Applicant submitted this was done intentionally and recklessly, without regard to their obligations as outlined above. Furthermore, the Applicant submitted that this reduced her capacity to address the summons issue, including the preparation of submissions and reviewing the documents of Prof Wilcox and Dr Watson in accordance with the timetable set by the Tribunal.
The Applicant argues that despite having overspent the funding for supports as approved by the Respondent on remittal on 2 August 2023, she was entitled to a replication of funding for supports due to a change in her circumstance that would be exacerbated over the Christmas holiday period. The Tribunal notes that the Respondent had not agreed to the Applicant’s request for a replication of funding for supports because of past incidents where the Applicant had engaged in overspending of her approved funding and noted that the date by which the Respondent was required to review the Applicant’s Plan was not until 31 January 2024. However, the Respondent, citing the Applicant’s change in circumstances, decided it was appropriate to conduct a reassessment of the Applicant’s plan, to consider the circumstances the Applicant submitted had changed.
Following this, the Applicant engaged in overspending of the funding in her plan by the excessive use of support workers. As a result, the funds in the Applicant’s plan became depleted. The Respondent immediately agreed to remit the matter under section 42D of the AAT Act, following which the Tribunal made a remittal order on that basis. The Respondent’s position to not agree to further funding, based on events that the Applicant considered would happen in the future, was, in my view, appropriate because, at that time, the Applicant was not without funding for approved supports. The Respondent’s decision to conduct a reassessment of the Applicant’s Plan was also appropriate in the circumstances given that the Applicant raised a change to her circumstances. The depletion of the funding in the Applicant’s Plan was caused by the Applicant overspending well ahead of the date on which the Respondent was required to review the plan. This was not because of anything that the Respondent did. It follows, that the Tribunal does not accept the contention that the Respondent has failed to meet their obligations as a model litigant, and moreover, that their actions are the reasons why the Applicant was not able to prepare written submissions on the summons issue or review the documents of Prof Wilcox and Dr Watson within the timetable set and varied by the Tribunal.
The Applicant claims that despite being incapable of participating, she was forced by the Tribunal to attend the hearing on 19 January 2024.
I do not accept the allegation made by the Applicant that the Tribunal “forced” her to attend the hearing on 19 January 2024. The Applicant was requested to provide medical evidence before the hearing, based on a deterioration of her mental health. No medical evidence was provided by the Applicant as requested for the Tribunal to consider. Accordingly, the Tribunal decided, having regard to the ongoing delays in determining the result of the summons issue and the overarching proceeding, that the hearing on 19 January 2024 should proceed. The Tribunal notes that at the hearing, the Applicant did nonetheless engage with the Tribunal with the assistance of her support workers.
The Applicant submitted that she was required to impose upon an unnamed third party to rapidly complete her written submissions on the summons issue overnight in order for her to be able to address the Tribunal coherently at the hearing on 19 January 2024.
Prior to the hearing of 19 January 2024, the Tribunal made reasonable and necessary adjustments, for example, the granting of extra time for the Applicant to be able to provide written submissions on the summons issue. Whilst the written submissions may have been prepared the night before the hearing, they were nonetheless provided and relied upon by the Applicant at the hearing where there had been considerable concessions granted to the Applicant. The Tribunal notes that it had already provided extensions of time to the Applicant in order for her to be able to address the Tribunal on the summons issue, ahead of the scheduled hearing date.
With regard to what the Applicant considered to be an expediated summons process, she submitted that the written submissions (prepared overnight by an unnamed third party) were incomplete and lacking in detail. This is inconsistent with what the Applicant said at the hearing. The Tribunal notes that at line 25, page 10 of the transcript from the 19 January 2024 hearing, the Applicant stated:
It's one of the many things that is likely being argued. I appreciate what you’re saying, but what I’m saying is I actually do not have capacity and I’ve had to find someone who had volunteered. And I had – to be honest, I really don’t even know what’s in that submission…
With reference to the previous Interlocutory Hearing that the Tribunal held via video on 22 August 2023 to discuss the summons issue, the Applicant submitted that due to her learning disorder, namely dysgraphia that she was unable to comprehend fully and understand the audio that was communicated at this hearing.
The Tribunal accepts that the Applicant has a diagnosis of dysgraphia as diagnosed by Dr Catherine Sinclair[71] (Dr Sinclair). However, while the Tribunal does not doubt or question the diagnosis, it does note that Dr Sinclair does not specifically diagnose the disability as ‘dysgraphia’ but as a ‘disability of written expression’. Furthermore, the Tribunal also notes that Dr Sinclair’s diagnosis does not extend to the Applicant’s assertion in paragraph 9 of her submissions dated 19 January 2024 that the cognitive impairment ‘affects her ability to comprehend audio information’.
[71] See T13 of the T-documents.
Be that as it may, the Tribunal is only capable of assessing the Applicant’s comprehension based on how the Applicant herself presented at the Interlocutory Hearing held on 22 August 2023. The hearing ran for 30 minutes and was conducted via video. Throughout that hearing, the Applicant could only be described as presenting as active, lucid and articulate. The Applicant spoke for a significant portion of the hearing and consistently engaged in the hearing process. While the Applicant did at times request clarification on points of discussion, at no point was the Tribunal put on notice that what the Applicant was requesting an explanation of was due to her dysgraphia and not due to the complexity of the information being discussed.
The Applicant submitted that she was required to provide written submissions on the summons issue by 25 October 2023. The Applicant submitted that it was not possible for her to meet this deadline due to her support workers being on leave during this period and was thus impracticable. Moreover, she submitted that she had not been provided with the transcript of the Interlocutory Hearing of 22 August 2023 within a reasonable time frame, and was therefore unable to meet this deadline, despite requesting that she be granted more time.
This is erroneous, in particular, the Tribunal notes that it gave a further extension of time until 24 November 2023 to the Applicant to provide written submissions on the summons issue. This extension was granted to the Applicant due to the delay in the Applicant being provided with the transcript of the hearing of 22 August 2023. Thus, this further extension was given in order to accommodate the Applicant providing the written submissions at a later date due to the delay in the production of the transcript.
The Tribunal has accommodated the Applicant and her specific circumstances to the best of its ability and has consistently provided leniency where the Applicant has requested extensions due to her disability. However, the Applicant is reminded that this is her application. Notwithstanding her conditions, she is nevertheless required to engage with the Tribunal processes and assist the Tribunal in coming to the correct or preferrable decision on the substantive issue on the review.
DECISION
For the reasons given above, the Tribunal makes the following decision:
1.The Applicant’s request that the summonses issued to Professor Ian Wilcox and Dr Shaun Watson on 11 April 2023 be set aside, is refused.
Pursuant to section 40B of the AAT Act, the Tribunal orders that:
1.Leave is given to the Respondent to inspect the following documents:
Dr Shaun Watson
·From the first set of 6 pages, pages 1 to 4;
·From the second set of 11 pages, pages 1 to 3, 6 to 11.
All other documents provided by Dr Watson are not relevant.
Professor Ian Wilcox
·From the set of 35 pages, pages 28 to 30, 32 to 33.
All other documents provided by Professor Wilcox are not relevant.
I certify that the preceding 232 (two hundred and thirty-two) paragraphs are a true copy of the reasons for the decision herein of Member P Smith
.............................[SGD]...........................................
Associate
Dated: 8 March 2024
Date(s) of hearing: 19 January 2024 Applicant: In person Solicitors for the Respondent: Ms P Heffernan
- AGLC
- PRLT and National Disability Insurance Agency [2024] AATA 390
- Case
- [2024] AATA 390
- Decision Date
CaseChat Overview and Summary
The Tribunal was required to determine whether the Respondent's request for the medical documents was an abuse of process or a fishing expedition, whether the documents sought had relevance or apparent relevance to the substantive issues on review, and whether the Applicant's consent was a prerequisite for the Respondent requesting these records. Additionally, the Tribunal considered whether the Applicant had been denied procedural fairness in prosecuting her case on the summons issue, and whether the Respondent had breached their model litigant obligations, particularly in light of significant delays caused by the Applicant.
In its reasoning, the Tribunal applied principles of relevance and apparent relevance to the substantive issues before it. It found that the Respondent's request was not an abuse of process or a fishing expedition, as the documents sought had a clear connection to the Applicant's claim. The Tribunal determined that the Applicant's consent was not required for the Respondent to request medical records in this context. Furthermore, the Tribunal found that the Applicant had not been denied procedural fairness and that the Respondent had not breached their model litigant obligations.
Leave was granted to the Respondent to inspect the documents that were found to have relevance or apparent relevance to the substantive issue on the review.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
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Decision
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Ratio Decidendi
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