QLYQ and National Disability Insurance Agency

[2022] AATA 4384

QLYQ and National Disability Insurance Agency [2022] AATA 4384 (15 December 2022)

Division:         NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2021/9898

Re:QLYQ

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

Decision

Tribunal:Deputy President Mischin

Date:15 December 2022

Date of written reasons:     15 December 2022

Place:Perth

The Tribunal DIRECTS that:

1. No later than 4 weeks after the Respondent has been given leave to inspect the documents produced under summons from BASES, the Respondent must file, and serve on the Applicant, any further evidence on which it intends to rely.

2. No later than 2 weeks after the Respondent has filed and served any further evidence pursuant to paragraph 1 or, if the Respondent does not file and serve any further evidence, at the expiration of 4 weeks after being given leave to inspect the documents produced under summons from BASES, the Respondent must file, and serve on the Applicant, a Statement of Facts, Issues and Contentions.

3. No later than 4 weeks after the Respondent has filed a Statement of Facts, Issues and Contentions, the Applicant must file, and serve on the Respondent, a Statement of Facts Issues and Contentions and any further evidence on which the Applicant intends to rely.

4. Within 2 weeks of the Applicant filing a Statement of Facts, Issues and Contentions and any further evidence pursuant to paragraph 3

   (a)the Respondent have leave to file, and serve upon the Applicant, a reply; and

   (b)both parties must file and serve a hearing certificate specifying any unavailable dates for a hearing to be listed in the first quarter of 2023.

...........................[Sgd].............................................

Deputy President Mischin

Catchwords

PRACTICE & PROCEDURE – NATIONAL DISABILITY INSURANCE SCHEME – Objection to issue summons to produce records from service provider

Legislation

Administrative Appeals Act 1975 (Cth), secs.39A, 40A
National Disability Insurance Scheme Act 2013 (Cth), sec.34

Cases
Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN(NSW) 250
Caltex Refining Co Pty Ltd v The Amalgamated Metal Workers’ Union (FCA 6 December 1990, unreported)
Comcare v Maganga [2008] FCA 285
Cosco Holdings Pty Ltd v Federal Commissioner of Taxation [1997] FCA 1504; (1997) 37 ATR 432

Treasurer of the Commonwealth of Australia v Canwest Global Communications Corp & Ors [1997] FCA 578

REASONS FOR DECISION

Administrative Appeals Tribunal

15 December 2022

INTRODUCTION

1. These are reasons I indicated I would deliver in respect of a decision following an interlocutory hearing held on 2 November 2022. 

1. Before me for determination was the Applicant’s objection to the Respondent’s request to issue a summons to produce documents. Consequential upon delays in the progress of this case occasioned by the need to resolve that objection, I needed to make some fresh directions to advance this case to a substantive hearing.

BACKGROUND

1. The Applicant child QLYQ was, at the date of the hearing, 4 years 8 months old, and a participant in the National Disability Insurance Scheme (NDIS) established under the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act). He has been diagnosed with Autism Spectrum Disorder (Level 3), chromosomal abnormality, language impairment and Global Developmental Delay.

1. The Applicant filed an application on 19 December 2021 to review a decision made by the National Disability Insurance Agency (the Respondent) on 30 November 2021. He did so through his father, who represents him in these proceedings and who has raised the objection to the Respondent’s request to the Tribunal to issue the summons. For convenience I shall refer to him as Mr Q.

1. It is unnecessary in dealing with this objection to traverse the history of the matter. It is sufficient for the purposes of these reasons to say that the substantive question to be resolved by the Tribunal in due course relates to a particular support being sought for the Applicant: specifically, the Applicant seeks to have the current statement of participant supports supplemented with 20 hours per week of Applied Behaviour Analysis (ABA) therapy for two years. His funded supports are currently being applied to such therapy, provided by an agency styled Behaviour-Analytic Special-Education Services (BASES), which also refers to the therapy as being ‘intensive behavioural intervention’.[1]

   [1] Letter from BASES to Clayton Utz dated 4 August 2022.

1. The Respondent is not persuaded that ABA therapy, in the amount sought or any lesser amount, is a reasonable and necessary support.[2]

   [2] Respondent’s Statement of Facts, Issues and Contentions dated 7 July 2022; Respondent’s Submissions in Support of Application for Summons dated 26 October 2022.

1. In support of his application to receive support for ABA, the Applicant has provided the NDIA with a quantity of material promoting the merits of ABA. This includes, but is not limited to, correspondence from BASES with a recommendation and quote for ‘intensive behavioural intervention’ services for QLYQ[3], a ‘report’ from Dr Erin Leif, a Senior Lecturer at Monash University,[4] and a report from Dr Indrajit S Karande, Consultant Paediatrician at Perth CDC.[5] Mr Q has also written to the Respondent and Tribunal setting out his assessment of the benefits of ABA for his son, based on his research into the subject.

   [3] Letters from BASES to AAT dated 13 May 2022 and to Clayton Utz dated 4 August 2022.

   [4] Dated 27 July 2022.

   [5] Dated 20 September 2022.

1. In the course of these proceedings, the Respondent sought to have the Applicant examined by a paediatrician, a Dr Kenneth Maclean. The Applicant’s father refused to permit such an examination contending, inter alia, that the Applicant has provided ample evidence to support what is being sought. A directions hearing was held on 6 September 2022 at which the refusal to submit to an examination was canvassed and directions were made to program the case to hearing. It was foreshadowed that, absent Dr Maclean being able to conduct his own assessment of the Applicant, he may have to form an opinion based on his considering other available evidence of the Applicant’s condition and response to therapy.

1. Mr Q has sent several letters to the Tribunal containing submissions opposing the issue of a summons.[6] 

   [6] Letters to AAT dated 20 September 2022, 27 September 2022, and 9 October 2022.

10.  The Tribunal listed a hearing for 2 November 2022 for the objection to be argued.

11.  The Respondent filed submissions on 26 October 2022 outlining its argument in favour of the issue of a summons, and addressing some incidental issues raised by Mr Q.

APPLICATION FOR A SUMMONS

The history of the application

12.  The question of the issue of a summons has been complicated by a series of careless errors on the part of the Respondent.

13.  On 13 September 2022, the Respondent’s lawyers filed with the Tribunal a Request to Issue Summons directed to ‘The Proper Officer, BASES Perth’. However, the draft summons accompanying the Request bore the File Number and Applicant Name for an unrelated case.

14.  Mr Q pointed this out in his submissions dated 20 September 2022 objecting to the issue of the summons. He also noted that the draft summons sought in, its paragraph 3c, documents produced by BASES ‘for provision to parents of participants in the Little Learners program’.[7] BASES, he submitted, did not have a ‘Little Learners program’. He contended, on the basis of these errors, that the Respondent’s proposed summons was a ‘copy and paste’ from another document and belied a genuine ’motivation’ for requesting the documents being sought.[8]

[7] Draft Summons to Produce Documents filed 13 September 2022.

[8] Objection to Respondent’s Request to Issue Summons dated 20 September 2022, page 2 paragraph 3.

15.  The Respondent then, on 21 September 2022, filed a fresh Request accompanied by a draft summons bearing the correct case details. However, it repeated the request for documents related to the Little Learners program.

16.  It was not until the 26 October 2022 that a further Request was filed, attaching an ‘updated proposed summons, with the typographical errors in the previous summons corrected’, they being the reference to the Little Learners program.[9]

[9] Email from Clayton Utz to AAT and Applicant, and accompanying Respondent’s Submissions in Support of Application for Summons, dated 26 October 2022.

17.  One of Mr Q’s complaints is that the request for a summons is calculated to delay the listing of this application for review for a substantive hearing. It can be argued by the Respondent that Mr Q’s insistence to object to the summons has also resulted in delay and the disruption of the timetable set by way of directions made on 6 September 2022 with the aim of advancing this case to a hearing.

18.  However, is also plain that the Respondent was unlikely to be able to meet the deadlines set. On 6 September, the Tribunal had directed that the Respondent provide to the Tribunal and to the Applicant a Statement of Facts, Issues and Contentions, and any further evidence upon which it intends to rely at the hearing, on or before 11 October. It was plain on that occasion that, denied the opportunity to have the Applicant further examined, any expert opinion from Dr Maclean upon which the Respondent wished to rely would have to be based on evidence already available from other sources. An obvious source was the agency providing ABA therapy to the Applicant, BASES. However, it took the Respondent a week to seek a summons to produce documentation from BASES, and a flawed summons at that. It took it another week to seek a corrected summons, which reproduced an earlier error whereby it sought a category of documents that it now seems to concede do not exist.

19.  While I do not accept Mr Q’s contention that the Respondent has been wilfully seeking to delay progress of this matter, the Respondent’s mismanagement of its request for a summons certainly has not helped it move along.

20.  An interlocutory hearing by way of video conference was held on 2 November 2022 to give the parties an opportunity to make any oral submissions in addition to their written submissions about whether the Tribunal should issue the summons. The Applicant was represented by Mr Q, accompanied by a support person from an advocacy agency. Mr Q made oral submissions, supplemented by occasional observations from his support person. The Respondent’s solicitor, a Mr Aviram, who had only recently assumed carriage of the matter on behalf of the Respondent, appeared at the hearing and made oral submissions in addition to written ones filed on 26 October 2022.[10]

[10] Respondent’s Submissions in Support of Application for Summons dated 26 October 2022.

The proposed summons

21.  The draft summons to produce directed to BASES seeks three broad categories of documents:[11]

[11] Draft Summons to Produce Documents filed 26 October 2022.

1. all those in the possession, custody and control of BASES Perth relating to the Applicant QLYQ,

2. all those including in the possession, custody and control of BASES Perth evidencing communications or correspondence between it and its employees or contractors, and QLYQ’s parents, and

3. a variety of documents relating to the Early Intensive Behavioural Intervention Program; and

4. ‘All documents evidencing any clinical research into the effectiveness or benefits of the Early Intensive Behavioural Interventions Program.’

22.  Each of the first three categories descend into further particulars. Included among those sought in category 2 were ‘any brochures, marketing material or information provided to the parents’.

23.  In its Reasons for the Request in the Request form, the Respondent refers to the application for review and the question of whether the supports requested by the Applicant are ‘reasonable and necessary, having regard to the matters prescribed under s 34 of the NDIS Act’. It goes on to say

The Applicant has attended the Early Intensive Behavioural Intervention Program run by BASES.

The Respondent considers that evidence from BASES in relation to the claims made by BASES, as pertaining to the Early Intensive Behavioural Intervention Program and use of ABA therapy, will assist the tribunal in reaching the correct and preferable decision.

The Applicant’s objection

24.  Mr Q, on behalf of the Applicant, objects to the issue of the summons on several grounds. The way in which the objections have been expressed are, understandably given that Mr Q is not learned in the law, imprecise and overlap, but they can in substance be categorised as the relevance and breadth of what is being sought.

25.  In his letter of 20 September 2022, Mr Q first notes that the Respondent is interested only in documents and other records from ‘one source – BASES’. He expresses concern that the documentary evidence from BASES is only a ‘small portion of the evidence’ upon which the request for further support is based. ABA ‘is a well-established (and scientifically proven) intervention’. He

cannot imagine how the provision of documents BASES staff have created for service delivery (e.g., Data Sheets, Program Sheets, teaching resources, email messages, etcetera) could constitute important further evidence for [the Tribunal]. Is the Respondent questioning whether BASES is a bona fide service provider? Is the Respondent accusing BASES staff of fabricating [the Applicant’s] skill-assessment results?’[12]

[12] Letter from Mr Q to AAT subject ‘Objection to Respondent’s Request to Issue Summons’, dated 20 September 2022, p 1.

26.  Secondly, Mr Q avers that

[T]he Respondent’s justification for a summons is that “claims made by BASES” might be substantiated (or be denied of evidence) by documents procured in the Summons, but the nature of their [BASES] supposed claims is very unclear.’[13]

[13] Ibid, p 1.

27.   Mr Q goes on to set out what he understands are the ‘claims made by BASES’ regarding his son’s condition and the therapy advocated by BASES. These claims, he contends, are supported by other evidence.

28.  In his letter of 27 September 2022, Mr Q submits what he describes as a ‘second objection’ to the Request to issue a summons. He refers to and maintains the arguments in his earlier letter, and then particularises the Respondent’s failure to meet various procedural deadlines and file statements of facts, issues and contentions. He also supplies further material to the Tribunal, which he says ‘are the evidence that all relevant material has been provided to the Tribunal and Respondent to determine whether the requested supports are reasonable and necessary’. He again complained about the delay in resolving the question of supports he argues the Respondent should provide.

29.  In his third letter of 9 October 2022, Mr Q argues that the Respondent’s request for a summons is unnecessary or improper and an abuse of process to delay the proceedings. He goes on to aver that:

1. Given the ‘ample evidence and research’ that has already been provided, the material sought under the summons will not assist the Tribunal to make the correct and preferable decision; and

2. ‘Some of the documents being requested are not relevant, for example, marketing material.’

He otherwise argues that if the material being sought is necessary or relevant, the Respondent has had ample opportunity before now to request it and had failed to do so, and to issue the summons now will further delay progress.

30.  At the interlocutory hearing, Mr Q reiterated that he could not see the need for what was being sought by the summons in the light of what he regarded as significant other evidence to support the desirability and efficacy of ABA therapy. Nor could he see the need for the issue of a summons to compel production, expressing confidence that BASES would provide any documents if they were asked to do so.

31.  He again took particular exception to the request for ‘any brochures, marketing material or information provided to the parents’, contending that they were not relevant to the case. He said that he had contacted ‘the Children’s Hospital’, learned of BASES, and conducted his own research into them. He contacted them because they were local to him, and his son was put on a waitlist. The Applicant was assessed, and a program was crafted based on that assessment. He received no brochures or marketing material.

Legal principles

32. The Tribunal has the power under section 40A of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) to summons a person to give evidence or to produce documents. 

33.  Subsection (1) provides that for the purpose of a proceeding before the Tribunal, the President, an authorised member, or an officer of the Tribunal may summon a person to appear before the Tribunal, on the day and at the time and place specified in the summons, to give evidence and/or produce any document or other thing specified in the summons.

34.  Subsection (2) provides that the President or an authorised member may refuse a request to summon a person.

35.  Subsection (3) provides that a person may, in the case of a summons to produce a document or thing, comply with the summons by producing the document or thing at the Registry from which the summons was issued before the day specified in the summons. If the person does so, the person is not required to appear before the Tribunal unless the summons, or another summons, requires the person to appear before the Tribunal, or the Tribunal directs the person to appear before the Tribunal.

36.  The general principles that apply to the issue of subpoenas by a Court also apply to the issue of summonses by the Tribunal.

37.  The basis upon which the discretion to issue a summons to produce should be exercised has been expressed in a variety of ways, but the fundamental touchstone is relevance to the issue or issues to be determined in the proceedings.

38.  The test of relevance is whether the documents relate to the proceedings such that there is a real possibility that they may assist in the resolution of issues in the proceedings.[14] All that need be established is that the material sought could reasonably be expected to throw light on the issues in the principal proceedings.[15] There should be a legitimate forensic purpose in seeking the relevant documents which must be identifiable, and likely to facilitate the conduct of the proceeding, not merely to oppress a party or witness. Such legitimate forensic purpose is not limited to admission into evidence, but use in cross-examination and include cross-examination going to the question of credit of a witness.[16]

[14] Comcare v Maganga [2008] FCA 285 at [37].

[15] Cosco Holdings Pty Ltd v Federal Commissioner ofTaxation[1997] FCA 1504; (1997) 37 ATR 432.

[16] Above n14 at [32], [34], [38].

39.  The question of allowing access to the summoned documents is a separate one. The Applicant will, as a matter of course, be permitted inspection of the material produced under summons and, after having done so, will be able to give notice of an objection to the Respondent inspecting.

40. That is not a question I need to deal with today. However, it is worth mentioning that the Tribunal has a discretion to give a party to the proceedings leave to inspect the documents produced under summons. Like considerations to those informing the issue of a summons will apply,[17] and the discretion should be exercised with a view to the Tribunal’s overarching obligation to ensure that every party to a proceeding before it is given a reasonable opportunity to present his or her case: in particular, to inspect any document to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents.[18] 

[17] Above n14 at [34]-[38].

[18] Administrative Appeals Tribunal Act 1975 (Cth), s39A(1).

41.  A summons for an improper purpose such as a ‘fishing expedition’ is not authorised[19].  The expression ‘fishing expedition’ has traditionally been a metaphor used in the law to describe where ‘a person who has no evidence that fish of a particular kind are in a pool desires to be at liberty to drag it for the purpose of finding out whether there are any there or not’.[20] However, it has been observed that

Discovery should be controlled, and may be limited to documents relevant to particular issues, but it is a valuable weapon in the armoury of justice. The real objection, which, in some cases, justifies discovery being limited to particular issues is the objection of oppression.[21]

[19] Above n14.

[20] Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN(NSW) 250 at 254.

[21] Caltex Refining Co Pty Ltd v The Amalgamated Metal Workers’ Union (per Lockhart, Burchett & Gummow JJ, 6 December 1990, unreported), cited in Treasurer of the Commonwealth of Australia v Canwest Global Communications Corp & Ors [1997] FCA 578 (per Beaumont, Burchett & Emmett JJ).

The Respondent’s case

42. The immediate issue for the Tribunal to determine is whether the Respondent’s request to issue the summons should be refused under subsection 40A(2) of the AAT Act.

43. The substantive issue for the Tribunal to determine in the principal proceedings is whether ABA therapy is a reasonable and necessary support within the meaning of section 34 of the NDIS Act that the Applicant should receive under the Scheme, the level of such support were it granted, and the funding assigned to it.

44.  The Respondent’s case for the issue of the summons can be summarised as follows: 

(a)Given that the substantive issue is whether the ABA program provided by BASES is ‘reasonable and necessary’ in the circumstances, and having regard to the criteria in section 34 of the NDIS Act 2013, the supports the Applicant has received to date, the effectiveness of those supports, and how BASES has analysed the effectiveness of the supports and applied its analysis, is relevant;[22]

(b)    The records sought from this service provider are likely to show in detail the Applicant’s behaviour and the supports he receives from BASES, his response to the therapy and how he has progressed, and whether BASES interacts with the Applicant’s other health service providers;[23]

(c)    The Respondent is also concerned whether the recommendation from BASES, which to a large degree founds the Applicant’s case for the level of ABA therapy he seeks from the Scheme, is tailored to the individual’s circumstances or a ‘one-size-fits-all’, and whether what is recommended reflects current good practice in the light of more recent research upon which the Respondent may seek to rely;[24]

(d)    As I understand the argument regarding the Respondent’s summons seeking ‘documents . . . evidencing any communications or correspondence between [the Applicant’s parents] and BASES Perth’ including ‘the contract for services’, ‘all email correspondence including correspondence prior to the date BASES Perth commenced providing services’, and ‘any brochures, marketing material or information provided to the parents’,[25] the Respondent contends that BASES has a business model. The programs they recommend and provide must accord with that business model. It may be that the recommendations made to parents are influenced more by the business model than tailored to the particular child. In other cases, the Respondent has found that correspondence with parents and marketing material has assisted with the question of whether the supports meet the requirements of the legislation. On the other hand, the material may support the criteria that need to be satisfied under section 34 of the Act to establish that what is sought is reasonable and necessary.

[22] Respondent’s Submissions in Support of Application for Summons dated 26 October 2022 at [7].

[23] Respondent’s submissions at hearing 2 November 2022.

[24] Respondent’s submissions at hearing 2 November 2022.

[25] Draft Summons to Produce Documents filed 26 October 2022, paragraph 2.

ANALYSIS AND CONCLUSION

45.  I am satisfied, on the basis of the material before me and having regard to the arguments presented by both the Respondent in support of the request for a summons, and the Applicant opposing it, that the request should be granted.

46.  I am so because, in short, the question of whether ABA therapy of the character sought is reasonable and necessary, and whether the program from BASES is the most efficacious, best practice, and whether it is tailored to the individual, are relevant considerations for the Tribunal to assess. These are matters that will be the subject of evidence, and it is evidence one might reasonably expect the service provider BASES to hold.

47. The Respondent, not unreasonably, seeks to satisfy itself of whether what is being sought is ‘reasonable and necessary’ and satisfies the criteria under the NDIS Act. It proposes to make its own evaluation of the Applicant’s needs and how to meet them. One contribution to that evaluation is obtaining an opinion of its preferred expert, Dr Maclean. As he will not be able to assess the Applicant directly, he will need to have the best available secondary evidence regarding the Applicant. That is not confined to the reports from BASES, but the material upon which those reports are founded. The proposed summons seeks that material.

48.  It is not to the point that BASES may, if asked, provide what is being sought. The Respondent has a legitimate interest in ensuring that all the relevant material is made available under the authority of a summons issued by the Tribunal.

49.  Further, it may well be that Mr Q is right in saying that the Tribunal has ‘ample evidence’ to support the application for these supports. However, neither the Respondent nor the Tribunal are presently in a position to know that. A properly framed summons may ensure that that is the case.

50.  Lastly, the question of commercial self-interest is frequently a live one in cases where an Applicant is relying upon the evidence of their service provider to establish the importance and efficacy of their service. The Respondent, and the Tribunal, have a legitimate interest in the extent to which that is present in a particular case and the degree to which it may affect the weight to be given to certain evidence. The material sought will assist in understanding that financial interest.

51.  Mr Q may be correct that some of the material sought does not exist; if that is so, it will not be able to be produced. But that is a different issue to whether, if the material does exist, it is reasonable for the Respondent to seek to compel its production.

52.  Having considered the terms of the proposed summons, I am satisfied that it is sufficiently focussed on the material to do with the Applicant and the matters in issue for determination in this case. On its face it does not appear oppressive.

DECISION

53.  The Respondent may have its summons to BASES as framed in the request of 26 October 2022. Fresh programming orders have been made in accordance with discussions at the conclusion of the hearing.

I certify that the preceding (53) paragraphs are a true copy of the reasons for the decision herein of Administrative Appeals Tribunal

..........................[Sgd]..............................................

Associate

Dated: 15 December 2022

Date(s) of hearing:	2 November 2022
Date final submissions received:	26 October 2022
Applicant:	In person
Advocate for the Applicant:	Kin Disability Advocacy
Solicitors for the Respondent:	Clayton UTZ