Trethewey and National Disability Insurance Agency (Practice and procedure)

[2025] ARTA 88

Trethewey and National Disability Insurance Agency (Practice and procedure) [2025] ARTA 88 (11 February 2025)

Applicant/s:  Ms Jane Trethewey

Respondent:  National Disability Insurance Agency

Tribunal Number:                2023/4538

Tribunal:General Member T Bubutievski 

Place:Sydney 

Date:11 February 2025

Decision:The Tribunal disallows the Applicant’s objection to the Respondent inspecting all the material produced under summons by Mr Lloyd McAlpine; Neville Bush Holdings Pty Ltd trading as Complete Care Team; and The Benevolent Society.

................[Sgnd]............................................

General Member T Bubutievski

CATCHWORDS

PRACTICE AND PROCEDURE – objection by the Applicant to the Respondent’s inspection of material produced under summons – relevance of the material produced under summons to the issues raised by the reviewable decision – objection disallowed.

LEGISLATION

Administrative Review Tribunal Act 2024 (Cth) ss 74, 78

CASES
ZFCC and Comcare [2018] AATA 1358
Comcare v Maganga 101 ALD 68
Panagiotou and TNT Australia Pty Ltd [2011] AATA 565

REASONS FOR DECISION

Ms T Bubutievski

11 February 2025

1. The Applicant, Ms Trethewey, has sought merits review by the Tribunal of a decision of the National Disability Insurance Agency (the Agency) to approve a statement of participant supports which does not include 2:1 care in her own home for 24 hours per day. The Applicant is aged in her 60s and has late stage early onset dementia. She is represented in these proceedings by her husband and legal guardian, Mr Simon Devir.

2. On 21 June 2023, a delegate of the CEO of the Agency decided on internal review that the requested support was not reasonable and necessary and would not be funded. Ms Trethewey has proceeded to this Tribunal in respect of the decision not to fund the above support.

3. In the course of these proceedings the Agency served summons on Ms Trethewey’s behaviour support practitioner, Mr Lloyd McAlpine; the service currently providing 24-hour care to Ms Trethewey, Neville Bush Holdings Pty Ltd trading as Complete Care Team; and The Benevolent Society, which has provided occupational therapy and speech pathology services to the Applicant.

4. On 16 January 2025, the Tribunal made a document inspection order granting the Applicant leave to inspect the summons documents from 16 January 2025 and the Agency leave to inspect the summons documents from 23 January 2025.

5. On 22 January 2025, Mr Devir made an objection to the Respondent viewing any of the summons documents.

   “As Jane’s representative I wish to object to the respondent viewing ALL documents summonsed on the 24 December 2024. For the following reasons:
   1 - because I have not been given an opportunity to preview these documents in the 7 day period in any way that is feasible. A few hours on the final day (when I am busy with Jane’s care) is clearly not adequate.
   2 - throughout the course of my engagement with the respondents representative in 2022, the representative has consistently presented material to the tribunal that is incorrect, incomplete and misleading.

   For example:
   An independent OT report which had been clearly proven to be substantially misleading, incorrect and incomplete has been submitted without any notification of these errors of fact. This report also contsins a recommendation for 1 on 1 support which the respondents representative described (in a case conference) as a “typo” which should have read as : 2 on 1
   The respondents representative objected strongly to me having that “typo” corrected by the person who appeared to be quoted in the OT report.

   Additional example:
   The 24hour log supplied by myself was described, by the respondents representative as indicating 6 pad changes in one day and 2 the next. Rather than 8 in a 24 hour period.
   It was apparent in last years hearing that the member believed that Jane had 6 pad changes a 24 hour period. The above are some examples of the respondents representative presenting an interpretation of data to the tribunal in misleading manner. As well as presenting material which is simply non factual.

   As Jane’s representative I strongly object to the respondent having access to the summonsed documents as there has been a clear strategy of misleading the tribunal by the respondents representative.
   It does not serve the interests of Jane or the tribunal for this to continue. This is clearly not the conduct of a model litigant.
   

   [1] Email to the Tribunal, 22 January 2025.

   I would also add that this documentation is not complete”.[1]

6. The Agency’s position is that the requested documents are relevant to a determination of the supports required by the Applicant. The documents have been requested from providers who are directly providing services to the Applicant. The Agency noted that this matter is in fact part heard by the Tribunal and was adjourned after the first day of hearing to allow summons to be issued because the Tribunal was concerned that there was relevant evidence available and easily accessible which had not been put before it. At that time, it was agreed between the parties that the documents sought under summons were relevant documents.[2]

   [2] Email to the Tribunal, 30 January 2025.

7. After hearing the parties, the Tribunal has decided to disallow Ms Trethewey’s objection to the Agency inspecting any of the documents produced on these summonses, for the reasons given below.

   RELEVANT LEGISLATION 

8. The power to issue a summons is conferred by s 74 of the Administrative Review Tribunal Act 2024 (Cth) (the ART Act). The Tribunal may, but is not compelled, to provide access to the parties to inspect documents produced under summons. Its power to do so is contained in s 78:

   Inspection of documents produced under summons

   General rule

   (1)a party to a proceeding may inspect or take a copy of a document or thing produced under a summons under section 74 in relation to the proceeding:

   (a)in the circumstances specified in the practice directions; or

   (b)if the Tribunal permits.

9. In this case, the Tribunal has already made an order allowing both parties to inspect these documents. The only circumstances in which a party may ordinarily be prevented from inspecting documents is if a public interest certificate applies (there has been no certificate issued in this case); the disclosure of the documents are prohibited by law; or a party objects to the document being inspected. The Tribunal is not aware that disclosure of any of the requested documents would be prohibited by law. This means that the only basis on which the Tribunal may make an order that the Respondent does not have leave to inspect the summons documents in this case is if the Applicant’s objection is made out under the law.

10. Subsection 78(5) of the ART Act states that an objection to summons documents being inspected must be in writing (or in any other manner specified in the practice directions) and must contain reasons for the objection. If such an objection is made, subsection 78(6) states that the Tribunal must decide whether the document or thing may be inspected or copied by a party to the proceeding.

11. Essentially the reasons put down by Mr Devir amount to him not having had sufficient time to review the material, and being distrustful of the purpose to which the Agency will put the documents if they are granted access. At hearing, Mr Devir argued that it would be unfair for the Agency to have access to the documents. The Tribunal put to Mr Devir that it would be procedurally unfair for him to have had access to the documents and the Agency not to have access to the documents in order to prepare its case. Mr Devir did not accept this proposition.

    RELEVANT PRINCIPLES

12. The purpose and process with respect to the issuing of a summons and subsequent access to documents produced pursuant thereto was summarised by Deputy President Forgie in Panagiotou and TNT Australia Pty Ltd [2011] AATA 565 at [19]-[20]:

    19. “A summons issued by the Tribunal has many similarities to a subpoena issued by a court. Both compel either a person to give evidence or produce documents or things for the purpose of, in the case of a subpoena, a court and, in the case of a summons issued under the AAT Act, the Tribunal to carry out its functions. Failure to comply with either a subpoena or a summons is an offence. Other parties to the action or matter in which a party requests that a subpoena or summons be issued may object to their being issued. Those to whom they are addressed may object to complying with them.

    20. Whether a subpoena or a summons, it is usually issued without question in the first instance. That assumes that there is no reason from the description of the documents or the identity of the person to be summonsed to question the relevance of the documents to the issues to be decided in the particular court or Tribunal proceeding. Three steps follow the issue of a summons. The first two precede the substantive hearing of the issue by the court or Tribunal and the third occurs during the course of, and as part of, that hearing. They have been identified by Moffit P in Waind and Hill v National Employers’ Mutual General Association Ltd:

    The first is obeying the subpoena, by the witness bringing the documents to the court and handing them to the judge. This step involves the determination of any objections of the witness to the subpoena, or to the production of the documents to the court pursuant to the subpoena. The second step is the decision of the judge concerning the preliminary use of the documents, which includes whether or not permission should be given to a party or parties to inspect the documents. The third step is the admission into evidence of the document in whole or in part; or the use of it in the process of evidence being put before the court by cross-examination or otherwise. It is the third step which alone provides material upon which ultimate decision in the case rests. In these three steps the stranger and the parties have different rights, and the function of the judge differs”.

13. Deputy President Forgie went on to consider the objection of the Applicant in that case to the production of health records held by various doctors. She observed:

    24. “The fact that any Applicant must face when applying for review of a decision in the Tribunal is that things that are personal to him or to her must be revealed if they are relevant to the issues raised by his or her application. This case provides a very clear example. Mr Panagiotou may well regard matters relating to his health as personal to him as do most, if not all, people. That does not make them irrelevant to the issues that must be decided on his application. Mr Panagiotou cannot control what the Tribunal regards as relevant and nor can TNT. Only the Tribunal can do that.

    25. What the Tribunal regards as relevant when it is actually reviewing a decision may be different from what it regards as relevant when it issues a summons. When reviewing a decision, it must have regard only to evidence or material that it actually regards as relevant. When it is issuing a summons for documents or material, it requires only that they appear to have relevance to the issues to be decided. That is, it may issue a summons requiring their production if they can reasonably be expected to throw some light on the issues that will have to be decided in reviewing the decision”.

14. Although the Tribunal in that matter was only considering whether it was appropriate to issue summonses for the medical records, very similar considerations apply to the question of whether a party should be granted access to summonsed records. In each case, the probative threshold for obtaining or granting access to the documents is that set out by Bennett J in Comcare v Maganga 101 ALD 68 at [37]-[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…

    The court may allow documents to be inspected if they are apparently relevant or are on the subject matter of the litigation or if they might be used for a legitimate forensic purpose in cross-examination…”[References omitted]

15. The right to privacy, including medical records, is well-established in Australian law. There are, however, circumstances where an individual may explicitly or implicitly surrender elements of that privacy in a legal context. These include situations where a person’s entitlement to a claimed benefit or support depends upon them being able to establish that they have a particular injury or impairment; and/or that they require particular supports or benefits because of that injury or impairment. Examples include things like access to compensation, claims for disability support pension, and access to funded supports in respect of a disability. In each case, the seeking of the entitlement presupposes that the seeker is willing to disclose so much of their medical history as would satisfy a decision maker that they are qualified for that entitlement. In practice, this generally entails the individual making his or her full medical record available to the decision maker and, if necessary, to a court or Tribunal reviewing a decision regarding that entitlement.

16. An Applicant may object to the Respondent inspecting and copying records produced under summons, but the acceptable grounds for such objection are very limited. The main ground is relevance.

17. An Applicant will sometimes object to inspection of documents on the basis that the records are not relevant to the proceedings before the Tribunal. The Tribunal must exercise considerable caution in accepting this argument. It is often the case that documents which may appear as irrelevant to a layperson are in fact important to determining the matter at hand. Genuinely irrelevant documents are disregarded, and their presence causes no mischief. It is generally not possible to determine whether or not a document is relevant until it is inspected.

18. The passing of medical or private records to strangers in the course of proceedings like these can, of course, be distressing to an Applicant. The Tribunal is mindful of that distress. Ethical and legal constraints affect a Respondent’s use of this material, and these constraints must be diligently applied. In ZFCC and Comcare [2018] AATA 1358, DP Humphries said [at paragraph 17]:

    “…But, where agreement between the parties cannot be reached, it should be remembered that a greater evil may be perpetrated by the exclusion of possibly-relevant material at an early stage, that being that both expert witnesses giving evidence and the Tribunal itself may be deprived of sufficiently full a picture of the Applicant’s condition to reach a fair and balanced conclusion regarding that condition. In the hearing itself, of course, material which has been produced under summons and disclosed to another party may yet be excluded from consideration or given little weight where the circumstances so warrant….”

    CONSIDERATION

19. The Tribunal considered Mr Devir’s objection carefully. An inability to review the documents in the available time may lend itself to an extension of the time given to the Applicant’s representative to inspect documents but does not lead to a conclusion that the Agency should lose its right to inspect the documents. Mr Devir’s concern that access to the documents will prompt some sort of malfeasance on the part of the Agency, based on his perception of his past experience with the Agency, also does not merit the Agency being denied the right to inspect the summons documents. It is an axiom of administrative law that both parties need to be able to respond to the case that they need to answer. This means that they both need to have full access to all relevant material.

20. The Tribunal noted the tension between Ms Trethewey’s right to keep her information private and the need for both the Tribunal and the Agency to be satisfied that the supports requested by Ms Trethewey are reasonable and necessary if Ms Trethewey is to get the outcome that she seeks. The Tribunal is satisfied that the records sought are not irrelevant. The documents produced under summons in all three instances can reasonably be expected to throw light on the issues that need to be resolved in reviewing the decision. They are not irrelevant or unrelated to the application for review. They are issued and served for a legitimate forensic purpose.

21. Making the complete records available to the Agency may well assist in satisfying it that the claimed supports are indeed reasonable and necessary. Denying the Agency access to those records may lead it to maintain its current position. Whatever the outcome, the objective of merits review of this decision is best served by having the summons documents available to the Agency for inspection.

22. Both parties were of the view that they had not had sufficient time to review the documents produced under summons. The Applicant sought more time to review the documents. The Agency sought access and time to consider the documents and provide them to the independent medical expert for opinion. As the substantive hearing was scheduled to resume on 12 February 2025 the Tribunal vacated the current listing to alternative dates in March 2025 with the agreement of the parties. This is a more appropriate outcome in the circumstances of the case.

    DECISION

23. The Tribunal disallows the Applicant’s objection to the Respondent inspecting all the material produced under summons by Mr Lloyd McAlpine; Neville Bush Holdings Pty Ltd trading as Complete Care Team; and The Benevolent Society.

Date(s) of hearing:	5 February 2025
Date final submissions received:	5 February 2025
Advocate for the Applicant:	Mr Simon Devir
Solicitors for the Respondent:	Ms Amanda Whiteley, Mills Oakley