RFPC and National Disability Insurance Agency

[2022] AATA 4218

RFPC and National Disability Insurance Agency [2022] AATA 4218 (7 September 2022)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2021/3768

Re:RFPC

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

INTERLOCUTORY Decision

Tribunal:Senior Member K Buxton

Date:7 September 2022

Place:Brisbane

The Respondent has leave to the inspect the unredacted portions of the summons material.

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

Senior Member K Buxton

Catchwords

PRACTICE AND PROCEDURE – NATIONAL DISABILITY INSURANCE AGENCY – summons – objection to inspection of summons documents – whether the documents produced under summons fall outside the scope of the summons request – whether the documents produced under summons are immaterial and irrelevant – Applicant’s objection upheld

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

National Disability Insurance Scheme Act 2013 (Cth)

Cases

Comcare v Maganga [2008] FCA 285

REASONS FOR DECISION

Senior Member K Buxton

7 September 2022

BACKGROUND

1. RFPC (‘the Applicant’) is a participant on the National Disability Insurance Scheme (‘NDIS’). The Applicant filed an application with the Tribunal on 6 June 2021 seeking review of a decision made by the National Disability Insurance Agency (‘the Respondent’) on 3 June 2021.[1] The decision, made under section 100(3) of the National Disability Insurance Scheme Act 2013 (Cth) (‘the NDIS Act’), confirmed an earlier decision made by the delegate of the Chief Executive Officer (‘CEO’) of the Respondent made on 12 April 2021 which approved a statement of participant supports.[2]

   [1] T-documents, T2.

   [2] Ibid.

2. Additional supports which are the subject of the review application include:[3]

   (a)An increase in funding for psychology;

   (b)3 hours per week for personal training;

   (c)18 hours per week, Monday to Friday, for 1:1 support worker assistance;

   (d)funding for meal preparation and delivery; and

   (e)funding for an iPad.

   [3] Ibid.

   REQUEST TO ISSUE SUMMONS

3. On 29 April 2022, the Respondent requested summons be issued to the following parties:

   (a)General Practitioner A (‘GP A’);

   (b)General Practitioner B (‘GP B’);

   (c)General Practitioner C (‘GP C’);

   (d)Psychologist; and

   (e)Services Australia.

4. The scope of the summons request for the General Practitioners was:

   All medical notes, records, correspondence, referrals, reports, test results or any other documentation held manually and/or electronically concerning or arising out of treatment or consultation relating to RFPC from 1 January 2017 to present, that relate to either or both:

   1.        RFPC’s level of functioning in the following areas:

   a.       communication

   b.       social interaction

   c.        learning

   d.        mobility

   e.        self-care

   f.         self-management, or

   2.        RFPC’s day to day routine or activities, such as:

   a.       their YouTube channel, website or singing career

   b.       employment

   c.        university studies.

5. The scope of the summons request for Services Australia was:

   1. The entire Medicare Claims History in relation to RFPC 1 January 2017 to present.

   2. The entire Pharmaceutical Benefits Scheme Claims History in relation to RFPC from 1 January 2017 to present. 

6. On 9 May 2022, the Applicant’s representative objected to the summons being issued. A Directions Hearing by telephone was convened by the Tribunal on 7 June 2022 where the Applicant withdrew their objection to issuing of the summons. The summons was subsequently issued with a return date of 1 August 2022. All parties provided documents in response to the summons request, with the exception of GP B.

   SUMMONS OBJECTION

7. On 15 August 2022, the Applicant’s representative lodged an objection to the Respondent’s inspection of the summons material produced by GP A and GP C. The Applicant’s representative submitted that some information provided by GP A and GP C was irrelevant and it was inappropriate that it be inspected by the Respondent.[4] The Applicant’s representative assisted the Tribunal in filing a redacted version of the summons documents which identified the aspects of the material to which the Applicant raised objection.

   [4] Applicant’s submissions dated 15 August 2022.

8. On 24 August 2022, the Respondent invited the Tribunal to make a determination of the objection on an ex-parte basis.

   ISSUE FOR CONSIDERATION

9. The issue before the Tribunal is ‘whether the documents relate to the proceedings such that there is a real possibility that they may assist in the resolution of the issues in the resolution of the issues in the proceeding’.[5]

   [5] Comcare v Maganga [2008] FCA 285, [37].

   LEGAL FRAMEWORK

10. The power for the Tribunal to issue summons to produce documents is set out in section 40A of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’).

    Power to summon person to give evidence or produce documents

    (1)  For the purposes of a proceeding before the Tribunal, the President, an authorised member or an officer of the Tribunal may summon a person to do either or both of the following, on the day, and at the time and place, specified in the summons:

    (a)  appear before the Tribunal to give evidence;

    (b)  produce any document or other thing specified in the summons.

11. Section 40B of the AAT Act sets out the power of the Tribunal to provide inspection of documents produced under summons.

    Inspection of documents produced under summons

    (1)  Any of the following persons may give a party to a proceeding leave to inspect a document or other thing produced under a summons in relation to the proceeding:

    (a)  the President;

    (b)  an authorised member;

    (c)  an authorised officer.

    (2)  However, an authorised officer must not make a decision about giving leave, and must instead arrange for the President or an authorised member of the Tribunal to make the decision, if:

    (a)  the officer considers that it is not appropriate for the officer to make the decision; or

    (b)  a party to the proceeding applies to the officer to have the decision made by a member of the Tribunal.

    (3)  If an authorised officer decided whether to give a party to a proceeding leave to inspect a document produced under a summons:

    (a)  a party to the proceeding may apply to the Tribunal, within 7 days or an extended time allowed by the Tribunal, to reconsider the decision; and

    (b)  the Tribunal may reconsider the decision on such an application or its own initiative; and

    (c)  the Tribunal may make such order as it thinks fit in relation to the giving of leave to inspect the document.

    CONSIDERATION

12. The power to issue summons is broad and, unsurprisingly, sometimes documents produced under summons may meet the scope of the summons but are unrelated to the proceedings before the Tribunal. It is clear that some of the documents produced by GP A and GP C are unrelated to the supports in dispute in this application. Other documents related to the Applicants general health and, again, are immaterial to the review application.

13. The Tribunal has inspected the summons material and the portions of the material in relation to which the Applicant requests that leave to inspect for the Respondent not be granted. The Tribunal is satisfied that the redacted portions of the material fall into the category of what is immaterial and irrelevant.

14. The Tribunal has determined that, as the redacted portions of the summons material have no bearing on the review application and viewing the material would not assist in arriving at the correct or preferable decision in this case, it is proper to order that the Respondent’s leave to inspect the material produced by GP A and GP C be limited to the unredacted portion of that material.

    CONCLUSION

15. The Tribunal allows the Applicant’s objection in relation to the summons material. The Respondent has leave to the inspect the unredacted portions of the summons material.

16.      

17.     I certify that the preceding 15 (fifteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member K Buxton.

…………[SGD]………..
Associate
Dated:    7 September 2022
Final Submissions Received:            15 August 2022
Representative for the Applicant:      People With Disability Australia.
Representative for the Respondent: Australian Government Solicitor.