TWNH and National Disability Insurance Agency (NDIS)
[2025] ARTA 2001
•6 October 2025
TWNH and National Disability Insurance Agency (NDIS) [2025] ARTA 2001 (6 October 2025)
Applicant/s: TWNH, by his plan nominee
Respondent: CEO, National Disability Insurance Agency
Tribunal Number: 2025/2804
Tribunal:General Member Robertson
Place:Perth
Date of decision: 6 October 2025
Date of written reasons: 6 October 2025
Decision:The objection to the issue of the summonses is dismissed.
Statement made on 06 October 2025 at 10:39am
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – practice and procedure – objection to the issue of summonses to produce documents – where recipients of summons are allied health professionals and a childcare centre – whether summons seeks relevant documents – whether summons is fishing – whether summons is oppressive – objection to the issue of summonses dismissed
LEGISLATION
Administrative Review Tribunal Act 2024 (Cth)
CASES
Apache Northwest Pty Ltd v Western Power Corporation (1998) 19 WAR 350
Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250
Boase v Axis International Management Pty Ltd (No 3) [2012] WASC 498
Comcare v Maganga [2008] FAC 285; (2008) 47 AAR 487
Fried v National Australia Bank (2000) 175 ALR 194
Gloucester Shire Council v Fitch Ratings, Inc [2016] FCA 587
Harman v Secretary of State for the Home Department [1983] 1 AC 280
Hearne v Street (2008) 235 CLR 125
Hospitality Group Pty Ltd v Australian Rugby Union Ltd (2001) FCA 1040; (2001) 110 FCR 157
Liristis v Gadelrabb [2009] NSWSC 441
Mandic v Phillis (2005) 225 ALR 760
National Employers' Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372
Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145
Seven Network (Operations) Limited v Fairfax Media Publications Pty Limited (2023) 418 ALR 284
Trade Practices Commission v Arnotts Ltd (1989) 21 FCR 306
Treasury Wine Estates Limited v Maurice Blackburn Pty Ltd (2020) 282 FCR 95
Wong v Sklavos (2014) 319 ALR 378; [2014] FCAFC 120
Statement of Reasons
INTRODUCTION
This is a decision concerning an interlocutory objection to the issuing of summonses for the production of documents. The substantive review application itself concerns the reasonable and necessary supports for the applicant, a three-year-old child identified by the pseudonym TWNH. The supports in issue include specialised therapies, behavioural interventions, and support worker assistance.
The respondent seeks to issue summonses to three allied health service providers and a childcare centre that have been involved in the applicant’s care. The applicant, through his mother and nominee, objects to the issue of these summonses. The objection is made on numerous grounds, including that the summonses are overly broad and amount to a ‘fishing expedition,’ that they would impose an oppressive personal and procedural burden on the applicant’s mother, and that the documents sought from the childcare centre are not relevant.
The matter was heard on 3 October 2025. The applicant was represented by his mother, who was assisted by her support coordinator, Ms K. Shortly before the hearing, the applicant’s representatives provided the Tribunal with written submissions and other documents, which were considered during the hearing and which I have considered subsequently as well.
For the reasons that follow, the applicant’s objection is dismissed. I have determined that the summonses should be issued. I am satisfied that they are directed to a legitimate forensic purpose, are not oppressive, and seek documents that are apparently relevant to the issues in dispute in this review.
LEGAL PRINCIPLES
Before addressing the specific objections, it is necessary to set out the legal principles that govern the Tribunal’s power to issue a summons. This power is a coercive one and must be exercised with care, for a proper purpose, and in a manner that is consistent with the interests of justice and the fair and efficient conduct of the proceeding.
The power to issue a summons is discretionary and is contained in s 78 of the ART Act. The discretion is not unfettered; it must be exercised judicially and in furtherance of the core functions of the Tribunal. The primary purpose of issuing a summons is to compel the production of documents that may assist the Tribunal in its task of arriving at the correct and preferable decision. The power exists to ensure that a party to a review application has access to relevant information to present its case and to test the case put against it.
A summons must be directed to a legitimate forensic purpose. This requires that the documents sought must be relevant to the issues in the proceeding. At this interlocutory stage, the standard which applies is one of ‘apparent relevance.’ It is well established that ‘apparent relevance’ refers to adjectival as distinct from substantive relevance and is often expressed as requiring consideration of whether the documentation called for could possibly throw light on the issue in the substantive proceedings.[1]
[1] Wong v Sklavos (2014) 319 ALR 378; [2014] FCAFC 120 [12]; National Employers' Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372, 381; Trade Practices Commission v Arnotts Ltd (1989) 21 FCR 306; Mandic v Phillis (2005) 225 ALR 760, [36].
The test is less stringent than the test for relevance applied to the admissibility of evidence at a final hearing.[2] The test for apparent relevance is a generous one, described as a involving only a low threshold because of the difficulty of determining actual relevance prior to trial or final hearing.[3] The standard of apparent relevance requires the Tribunal to be satisfied that there is a real possibility the documents may assist in resolving the issues in dispute.[4]
[2] Gloucester Shire Council v Fitch Ratings, Inc [2016] FCA 587 [23]. Noting, of course, that the Tribunal is not bound by the rules of evidence.
[3] Boase v Axis International Management Pty Ltd (No 3) [2012] WASC 498 at [11]-[14].
[4] Comcare v Maganga [2008] FAC 285; (2008) 47 AAR 487 [37]-[38].
The relevant test is often expressed as whether it is ‘on the cards’ that the documents sought will materially assist the party in its case.[5] Further, it is well-established that a summons may be used to obtain documents relevant only to the credit of a witness, for the purpose of cross-examination.[6]
[5] Wong v Sklavos (2014) 319 ALR 378; [2014] FCAFC 120 [12]; Seven Network (Operations) Limited v Fairfax Media Publications Pty Limited (2023) 418 ALR 284 [35].
[6] Fried v National Australia Bank (2000) 175 ALR 194 [24].
The Tribunal’s power to issue a summons cannot be used to enable a party to engage in a ‘fishing expedition.’ The distinction between a legitimate request and an impermissible fishing expedition is important. ‘Fishing,’ in this legal context, refers to the practice of seeking documents not because there is a reasonable basis to believe they are relevant, but in the speculative hope of finding something that might assist one’s case. It is an attempt to trawl through another’s documents to see what might turn up.
In Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd, Owen J said of the phrase ‘fishing expedition’:
A 'fishing expedition', in the sense in which the phrase has been used in the law, means, as I understand it, that 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. If, however, there is material before the court pointing to the probability that a party to litigation has in his possession documents tending to destroy his case or support the case of his opponent and that privilege from inspection of such documents has been wrongly claimed, an application by that opponent to be allowed to inspect them cannot properly be described as a mere 'fishing expedition'.[7]
[7] Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250.
Moreover, in Liristis v Gadelrabb, Brereton J observed:
I do not understand it ever to have been a proper objection to a subpoena that it seeks documents relating only to credit. Indeed, one of the fundamental distinctions between the processes of subpoenas for production and discovery is that subpoenas, unlike discovery, may be used to obtain documents relevant only to questions of credit, for the purposes of assisting cross‑examination as to credit. It is true that in Fried v National Australia Bank (2000) 175 ALR 194, Weinberg J in the Federal Court of Australia said that it was inappropriate to permit a subpoena to stand which does little more than to trawl for documents that may be used to impugn the credit of a particular witness. I do not disagree with that observation, but that is not to say that it is inappropriate to permit a subpoena to stand that seeks documents that may be used to impugn the credit of a particular witness, as distinct from merely trawling for such documents. The concept of 'trawling' in this context is the same as that of 'fishing'. It is not fishing to seek documents when there are reasonable grounds to think that fish of the relevant type are in the pond or, as it has been expressed in other cases, that it is 'on the cards' that relevant documents (even if they are relevant only to credit) will be elicited by the subpoena.[8]
[8] Liristis v Gadelrabb [2009] NSWSC 441 [5].
In contrast, a request is not considered ‘fishing’ if there are reasonable grounds to believe that relevant documents exist and are held by the recipient of the summons.
The Tribunal must also be satisfied that a summons is not oppressive. A summons may be oppressive if it is framed in terms that are excessively broad or lacking in precision, such that it imposes an unreasonable and unjust burden on the recipient to comply.[9] The summons must be framed with sufficient clarity to enable the recipient to know what documents they are required to produce, and compliance must be practicable.[10]
[9] See, for example, Apache Northwest Pty Ltd v Western Power Corporation (1998) 19 WAR 350.
[10] Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145, [69].
CONSIDERATION OF THE APPLICANT’S OBJECTIONS
The applicant’s objections, articulated in both written submissions and oral argument, are numerous and substantive. I will not address each and every argument put. However, I will address each of the key grounds of objection in turn by reference to the legal framework which I have set out above.
Whether the summonses are a ‘fishing expedition’
The applicant submits that the summonses are impermissibly broad, vague, and lack specificity, and therefore amount to a fishing expedition. It is argued that by seeking ‘all notes, records, correspondence, and incident reports,’ the respondent has failed to identify the specific evidentiary gaps it seeks to fill, instead choosing to cast a wide net in the hope of catching something useful.
I do not accept this characterisation. This is not a case where the respondent is speculating about the existence of relevant material. The applicant has chosen to rely on expert reports prepared by Ms Gianatti (occupational therapist), Ms Crabb (physiotherapist), and Ms Hayes (speech therapist). These reports contain opinions and recommendations that go to the heart of the matters in dispute namely, the nature and extent of the supports that are reasonable and necessary for the applicant.
It can readily be accepted that it is a matter of ordinary professional practice that clinicians and therapists maintain underlying records of their assessments, observations, and interactions with a client. These records, which may include clinical notes, test results, and correspondence, form the foundation upon which their expert opinions are based. The respondent does not need to speculate that these documents exist; it is reasonable to expect that they do.
I am also satisfied that the documents are sought for a legitimate forensic purpose, namely to understand, test, and, if appropriate, challenge the opinions expressed in the reports relied upon by the applicant. Access to these documents will assist with the preparation for the hearing and to cross-examine the authors of the reports. To put the point colloquially, as was discussed in the authorities, the applicant has produced some fish from the pond in the form of the expert reports. The respondent now seeks to see what other fish are in the same pond. In other words, it has clear evidence that fish of a relevant kind are in the pond and is not merely dragging an empty pool in the hope that something might be there.
I am satisfied that it is clearly ‘on the cards’ that the documents held by the allied health providers will be apparently relevant to the issues in the proceeding. The fact that expert reports have been filed readily demonstrates relevance. Moreover, and as I discuss in more detail below, the childcare records will involve some independent observations as to the applicant on a day to day basis. That material appears relevant to the question of the supports that are in dispute, in particular the need for support workers and behavioural intervention. Accordingly, the objection on the ground that the summonses constitute a fishing expedition must fail.
The breadth of the summonses
A related submission is that the summonses are oppressive because they are overly broad and lack sufficient particularity. The applicant argues that the request for ‘all notes, records, correspondence, and incident reports’ places an unfair burden on his mother, who is unrepresented, to guess what information the respondent believes is missing.
While a summons must be framed with sufficient clarity, there will inevitably be a degree of imprecision when seeking underlying records, precisely because the party seeking the documents does not know what specific documents are held by the recipient. The formulation used here is a standard and practical way of describing the entire clinical or service file relating to the applicant.
The scope of the summonses is not unlimited. They are directed to specific entities that hold records about the applicant’s engagement with their services. The documents sought are clearly connected to the reports and evidence already adduced by the applicant. In this context, I am not satisfied that the description of the documents is so broad or vague as to be oppressive. The documents may expose the basis for the opinions expressed in the reports and will bear directly upon whether the disputed supports are reasonable and necessary.
Relevance
The applicant raises a specific objection to the summons directed to the applicant’s childcare centre. It is submitted that these records are not clinical documents, are not created for the purpose of functional assessment, and may create a misleadingly positive impression of the applicant’s capacity because they tend to focus on positive events. There is also a concern that raw notes could be misinterpreted by those without professional expertise.
This submission misunderstands the generous test of ‘apparent relevance’. The question at this stage is not whether the childcare records will be admissible at the final hearing, nor is it a question of the weight that should ultimately be given to them. The question is simply whether they could possibly throw light on the issues in dispute.
The central issues in this review concern the applicant’s functional capacity and his need for various supports. Observations of a child in a day-to-day environment like a childcare centre may be capable of providing relevant information about his functional abilities, his challenges, his interactions with peers, and his response to various stimuli and supports. While these records are not clinical, they may provide a valuable, contemporaneous and potentially objective account of the applicant's functioning that could either corroborate or contrast with the evidence from the clinical experts.
The concern that the records may be incomplete, focus on the positive, or be taken out of context is an argument about the weight and interpretation of the evidence. These are matters properly raised and explored at the final hearing. The applicant’s mother will have every opportunity to make arguments about context, to challenge the respondent’s interpretation of the records, and to explain why certain records may not represent a true or complete picture of the applicant’s challenges. These concerns do not provide a sound basis for refusing to issue a summons for what is, I am satisfied, a category of documents which have apparent relevance.
The burden on the applicant’s mother
Perhaps the most compelling ground of objection relates to the significant personal and procedural burden the process would impose on the applicant’s mother. The evidence indicates that she is a single parent with significant disabilities of her own that affect her executive functioning and mental health. She is unrepresented and is managing this application alongside her own Tribunal matter. It is submitted that the stress of the process has already caused a deterioration in her health and that the burden of reviewing a potentially voluminous amount of material could compromise her ability to participate and may even force her to withdraw. Her concerns in this regard find some support in a letter from her Clinical Psychologist.
I accept that these concerns are genuine and serious. I further accept that the Tribunal has an obligation to conduct proceedings in a manner that is accessible, particularly for self-represented parties with disabilities.[11] The potential impact on the health and capacity of the applicant’s mother is a significant factor that I have weighed carefully in the exercise of my discretion.
[11] Administrative Review Tribunal Act 2024 (Cth), s 51.
However, this weighty consideration must be balanced against the respondent’s right to procedural fairness and their right to present their case.[12] The respondent is entitled to obtain relevant material necessary for the fair conduct of the proceeding. Denying the respondent access to the foundational documents behind the expert reports relied upon by the applicant would significantly prejudice its ability to present its case and to test the applicant’s evidence.
[12] Administrative Review Tribunal Act 2024 (Cth), s 55.
At this stage, the concern about the volume of material is speculative. There is no evidence before me as to how much material will actually be produced. Furthermore, the Tribunal retains control over the use of any documents produced. Once the documents are available, directions can be made to manage the process in a way that mitigates the burden on the applicant’s mother. For example, the respondent could be directed to identify the specific documents it intends to rely on well in advance of the hearing. While I do not underestimate the challenges faced by the applicant’s mother, I am not satisfied that these concerns are sufficient to outweigh the respondent’s fundamental entitlement to test the case against it.
Finally, in the event that the applicant’s mother was to conclude she can no longer participate in the review application, there are alternative options available. For example, the Tribunal appoint a litigation supporter for the applicant.[13]
[13] Administrative Review Tribunal Act 2024 (Cth), s 67.
Procedural fairness and other matters
The applicant raises several other arguments, including that the request is an invasion of privacy and that the respondent is improperly using the Tribunal’s coercive powers to remedy its own earlier failures to gather evidence.
Every summons for the production of personal records from a third party involves a potential invasion of privacy. The law recognises this, but balances it against the interests of justice, which require that relevant documents be available to the decision-maker. A blanket assertion of privacy is not a sufficient basis to refuse to issue a summons for apparently relevant documents.[14]
[14] Hospitality Group Pty Ltd v Australian Rugby Union Ltd (2001) FCA 1040; (2001) 110 FCR 157 [80]-[83].
The applicant also proposed an alternative procedure, namely that any evidentiary ‘gaps’ be filled by hearing oral evidence from the clinicians at the hearing. While the clinicians may indeed be asked questions, I do not accept this is, or should be, a substitute for the production of their underlying records. Effective cross-examination requires an understanding of the foundation of a witness's evidence. It would be unfair to require the respondent to question the expert witnesses ‘in the dark’, that is without having had the opportunity to review the contemporaneous notes and records that informed their opinions.
The submission, relying on Keightley and National Disability Insurance Agency [2023] AATA 1136, that the respondent should have conducted these inquiries earlier and, as a consequence, the Tribunal should refuse to issue the summons is also misplaced. A review in this Tribunal is a de novo proceeding; where the Tribunal stands in the shoes of the original decision-maker and must make the correct and preferable decision based on the evidence before it. The Tribunal is, in performing that role, entitled to require that persons or entities produce documents. Moreover, the applicant has sought to adduce new expert evidence in this review which was not before the original decision maker. The respondent is entitled to test that new evidence and that includes by issuing a summons to produce documents which might well be used to test that evidence. In my view, the principles of procedural fairness dictate that the respondent must be given a reasonable opportunity to do so, and that includes seeking the production of the documents that underpin that new evidence.
Even assuming, which I need not decide, that Keightley was correctly decided, the circumstances of that case were materially different insofar as the applicant in that case did not seek to rely on additional evidence and had foreshadowed seeking the Tribunal make a decision without a hearing on the basis of the material that was already before the Tribunal.
CONCLUSION
I have carefully considered all the objections raised by the applicant. While I acknowledge the genuine and significant challenges faced by the applicant’s mother, these must be balanced against the fundamental principles of procedural fairness that extend to both parties in the conduct of the review application.
I am satisfied that each of the summonses seeks documents that are apparently relevant to the issues in dispute. I am, accordingly, satisfied that each summons has a legitimate forensic purpose. The summonses are not a ‘fishing expedition’ and nor are they so broad as to be oppressive. The arguments regarding the weight, completeness, or potential for misuse of the documents are matters for the final hearing, not a basis for refusing to issue the summonses at this stage. I note, for completeness, it does not appear to be suggested that the documents produced pursuant to any summons would be used for a collateral purpose.[15]
[15] Harman v Secretary of State for the Home Department [1983] 1 AC 280; Hearne v Street (2008) 235 CLR 125, however see Treasury Wine Estates Limited v Maurice Blackburn Pty Ltd (2020) 282 FCR 95 [83].
For these reasons, the applicant’s objection is dismissed and the summonses will be issued.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for the decision herein of General Member Robertson
..........................[SGD].........................
Dated: 6 October 2025
Date of hearing: 3 October 2025 Applicant: The applicant’s mother Solicitor for the Respondent: Ms Anella Bortone, Sparke Helmore Lawyers
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