XCFB and National Disability Insurance Agency - [2021] AATA 3285

XCFB and National Disability Insurance Agency [2021] AATA 3285 (10 September 2021)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2020/0868
Re:XCFB
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Member K. Parker
Date:10 September 2021
Place:Melbourne

The Tribunal ORDERS that:
1.The disclosure of any documents due to be produced to the Tribunal by Dr Ashkar in compliance with the Tribunal’s Direction issued on 26 August 2021 (Documents), will be limited to:
(a) any psychologist or psychiatrist who has given or will give evidence in this proceeding;
(b) the Presiding Member of the Tribunal (and any member of staff nominated by the Presiding Member); and
(c) to any subsequent Presiding Judge should this matter be taken on appeal or subsequent Presiding Member should this matter be subsequently remitted to the Tribunal (differently constituted);
2.The Documents will be held in the Tribunal Registry in an encoded electronic file and only the persons described in subparagraphs (a), (b) and (c) above will be given the code to allow them to access the Documents as the Tribunal considers appropriate, or as required under legislation; and
3.If the Tribunal considers it appropriate to refer to any information in the Documents in the Decision to be handed down in this application, such information will not be published, other than in a non-specific manner, and instead, will be cited or addressed in a Confidential Annexure to the Tribunal’s Reasons for Decision.

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Member K. Parker
CATCHWORDS
PRACTICE AND PROCEDURE – request by expert witness to set aside Tribunal Direction requiring production of psychological testing materials – whether orders should be made under s 35(4) of Administrative Appeals Tribunal Act 1975 (Cth) – whether against public interest to allow disclosure and publication of psychological testing materials – consideration of principle that evidence should be made available to the public and to all parties – consideration of copyright protections and exemptions – Tribunal limited disclosure to any psychologist or psychiatrist to give evidence in the proceeding and relevant decision-makers – Tribunal restricted future publication of information contained in psychological testing materials to a confidential annexure to the Tribunal’s Reasons for Decision
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Copyright Act 1968 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
CASES
Corey & Jebbett (NO. 4) [2018] FamCA 1039
Re Huchatz and Australian Capital Territory (Compensation) [2020] AATA 4237
REASONS FOR DECISION
Member K. Parker
10 September 2021
Background

This application concerns a decision made by the National Disability Insurance Agency (the NDIA) not to grant the Applicant, XCFB, access to the National Disability Insurance Scheme on the basis that the NDIA considers that she does meet the disability requirements under s 24(1) of the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act).
This matter is presently part heard. During the hearing, the NDIA called a neuropsychologist as an expert witness (Neuropsychologist). The Neuropsychologist had conducted an independent assessment of XCFB and had prepared some expert reports which have been produced to the Tribunal and are relied upon by the Respondent.
The Neuropsychologist opined that XCFB had not made a genuine effort to participate in the cognitive tests administered by him. The Neuropsychologist concluded that XCFB was exaggerating her symptomatology. The Neuropsychologist reached this view because he said he had administered tests on XCFB specifically designed to check if the test taker was making a genuine effort to participate in the tests, and that she had failed those “effort” tests. XCFB claimed that she was not well at the time those tests were administered and was suffering extreme fatigue and “brain fog”. The Neuropsychologist gave evidence that the tests he had administered were designed to be capable of being successfully completed, even in circumstances where a person was faced with such challenges. The underlying design or “settings” of these tests is a matter that the Tribunal would like to understand more about before deciding this application, to be satisfied that they align with the evidence given by the Neuropsychologist at the substantive hearing.
For this reason, on 26 August 2021, the Tribunal directed that the Neuropsychologist produce copies of all clinical notes and psychometric test results held by the Neuropsychologist in respect of XCFB and copies of all accompanying manuals and literature explaining the “settings” and objectives of these tests administered by the Neuropsychologist to the Tribunal (Direction).
On 30 August 2021, the Neuropsychologist wrote to the Tribunal requesting that this Direction be set aside on the basis that it would be against the public interest for this information and documents to be produced in this application and may breach copyright protections that apply to those materials (Neuropsychologist’s Request).
The Tribunal is due to resume the hearing of this application on a date to be fixed for the purpose of hearing evidence from a Consultant Psychiatrist at the Royal Melbourne Hospital, who assessed XCFB in April 2021. At this hearing, the Consultant Psychiatrist will be questioned about his assessment of XCFB and about the opinions expressed by the Neuropsychologist in this proceeding.
This application was listed for an interlocutory hearing on 9 September 2021 to hear from the parties about the Neuropsychologist’s Request. At the invitation of the Tribunal, the Neuropsychologist also attended this hearing and made submissions. The Tribunal has considered a further letter sent to the Tribunal by the Neuropsychologist after this hearing, providing a consolidated summary of the test results for the assessments administered by the Neuropsychologist of XCFB, and a set of literature articles and extracts from one or two of the manuals. This information is certainly helpful, but the Tribunal remains of the view that it would like access to the materials referred to in the Tribunal’s Direction.
Section 35 of the AAT Act
Section 35 of the AAT Act provides as follows:
Public hearing
(1)     Subject to this section, the hearing of a proceeding before the Tribunal must be in public.
Private hearing
(2)      The Tribunal may, by order:
(a) direct that a hearing or part of a hearing is to take place in private; and
(b) give directions in relation to the persons who may be present.
Orders for non-publication or non-disclosure
(3)     The Tribunal may, by order, give directions prohibiting or restricting the publication or other disclosure of:
(a) information tending to reveal the identity of:
(i)       a party to or witness in a proceeding before the Tribunal; or
(ii)     any person related to or otherwise associated with any party to or witness in a proceeding before the Tribunal; or
(b)information otherwise concerning a person referred to in paragraph (a).
(4)     The Tribunal may, by order, give directions prohibiting or restricting the publication or other disclosure, including to some or all of the parties, of information that:
(a) relates to a proceeding; and
(b) is any of the following:
(i)      information that comprises evidence or information about evidence;
(ii)     information lodged with or otherwise given to the Tribunal.
(5)     In considering whether to give directions under subsection (2), (3) or (4), the Tribunal is to take as the basis of its consideration the principle that it is desirable:
(a)     that hearings of proceedings before the Tribunal should be held in public; and
(b)     that evidence given before the Tribunal and the contents of documents received in evidence by the Tribunal should be made available to the public and to all the parties; and
(c)     that the contents of documents lodged with the Tribunal should be made available to all the parties.
However (and without being required to seek the views of the parties), the Tribunal is to pay due regard to any reasons in favour of giving such a direction, including, for the purposes of subsection (3) or (4), the confidential nature (if applicable) of the information.
…
Note:         See section 35AA.
Consideration of case authorities
Two relevant case authorities were addressed at the interlocutory hearing on 9 September 2021, namely, Corey & Jebbett (NO. 4) [2018] FamCA 1039 (Corey) and Re Huchatz and Australian Capital Territory (Compensation) [2020] AATA 4237 (Huchatz).
In Corey, similar circumstances arose where an expert psychologist objected to the production of test results sought by way of subpoena, based on the expert’s claim that publication of the test results would be injurious to the public interest. The reason for this was that the expert asserted that the distribution of such material may affect the utility of the test in that they depend on the test taker not having prior access to test materials. It was asserted that public exposure to the test materials may significantly compromise the validity of test instruments and the fair and accurate assessment of other members of the public.
In Corey, one of the parties sought to test the accuracy of the expert report and insisted upon being given a reasonable opportunity to test the validity or correctness of the underlying facts or data upon which the relevant opinion of the expert was based. The Tribunal notes that Kent J, in Corey, ultimately decided that a proper balance could be achieved between the public interest and the party’s right to test the opinions by placing suitable restrictions upon the release of the material. In the present application, the Applicant submitted, at the interlocutory hearing, that the documents sought by the Tribunal in the Direction should be produced by the Neuropsychologist.
In support of the Neuropsychologist’s Request, the Neuropsychologist referred to the same set of “freedom of information” cases which were relied upon by the expert in Corey, who objected to the production of psychological test results. In Corey, Kent J observes, at [13]:
By nature, those cases are different from the present case. It is the case that documents provided in response to a Freedom of Information Application essentially enter the public domain upon their provision. In contrast, here, production of documents in answer to a subpoena from the Court is production to the Court. The Court has possession of the documents and the Court regulates the access to documents produced under subpoena. Even when the Court permits the parties to inspect and copy documents the parties are under an obligation to restrict their use of the document for the purpose of the proceedings.
The Tribunal agrees with this statement. The “freedom of information” case authorities referred to in the Neuropsychologist’s Request are distinguishable from the circumstances of the present application for review proceeding before the Administrative Appeals Tribunal. Like the Court, the Tribunal regulates who has access to documents produced in a proceeding. For the reasons referred to by Kent J in Corey, the Tribunal is not persuaded by the “freedom of information” case authorities referred to by the Neuropsychologist, that the Tribunal should grant the Neuropsychologist’s Request to set aside the Tribunal’s Direction.
In Huchatz, an expert witness received a summons to produce documents relating to a neuropsychological assessment she had undertaken in a workers’ compensation matter. The expert sought an order from the Tribunal to the effect that the summons was satisfied without disclosure of the neuropsychological test documents. The Tribunal notes and agrees with the comments of Deputy President Pascoe AC CVO in Huchatz at [12]:
In proceedings before the Tribunal, it is important that integrity of process is maintained and assured to the benefit of all parties and for expert witnesses who provide the Tribunal with the benefit of their skill and expertise, particularly when the hearings before the Tribunal involve serious and/or complex medical issues. In this regard, any request for confidentiality needs to be weighed against the wider public interest in open justice.
In Huchatz, the Tribunal ordered that the publication and disclosure of the test results (enclosed in the sealed envelope), be limited to any registered psychologist nominated by either party in these proceedings and to the Presiding Member of the Tribunal (and any member of staff nominated by the Presiding Member), if the Presiding Member considered that direct access to the test results was necessary in order to reach the correct or preferable decision, in which case the expert would be given at least 24 hours prior notice. The Tribunal also ordered the documents would be returned to the expert at the end of the proceeding.
At the hearing, the Neuropsychologist raised a concern held by him that compliance with the Tribunal’s Direction may cause an issue in respect of the copyright protections that applied to the materials required under the Direction to be produced. The Tribunal notes that to the extent that any of those materials are protected by copyright, that an exemption applies in the Copyright Act 1968 (Cth) in respect of reproduction for the purpose of judicial proceedings, which include proceedings before a Tribunal.[1] Specifically, s 43 of the Copyright Act 1968 (Cth) is set out below:
43 Reproduction for purpose of judicial proceedings or professional advice
(1) The copyright in a literary, dramatic, musical or artistic work is not infringed by anything done for the purposes of a judicial proceeding or of a report of a judicial proceeding.
(2) …
[1] Refer s 10(1) of the Copyright Act 1968 which define judicial proceedings as follows:
judicial proceeding means a proceeding before a court, tribunal or person having by law power to hear, receive and examine evidence on oath.
Conclusion
In the present proceeding, the Tribunal is satisfied that consideration of the documents directed to be produced by the Neuropsychologist under the Tribunal’s Direction are required for the Tribunal to reach the correct or preferrable decision in this application. The underlying design or “settings” for the “effort” tests performed by the Neuropsychologist on XCFB, go to the heart of how much weight the Tribunal should give to the crucial evidence given by the Neuropsychologist that XCFB had failed most of those tests and on that basis, he was able to conclude that she was exaggerating her symptoms.
The Tribunal has undertaken the balancing exercise described by Kent J in Corey and Deputy President Pascoe AC CVO in Huchatz (see paragraph [12] above), and has decided that it is appropriate to make the following orders under s 35(4) of the AAT Act in this application:
The Tribunal ORDERS that:
1.    The disclosure of any documents due to be produced to the Tribunal by Dr Ashkar in compliance with the Tribunal’s direction issued on 26 August 2021 (Documents), will be limited to:
a.    any psychologist or psychiatrist who has given or will give evidence in this proceeding;
b.    the Presiding Member of the Tribunal (and any member of staff nominated by the Presiding Member); and
c.     to any subsequent Presiding Judge should this matter be taken on appeal or subsequent Presiding Member should this matter be subsequently remitted to the Tribunal (differently constituted);
2.    The Documents will be held in the Tribunal Registry in an encoded electronic file and only the persons described in subparagraphs (a), (b) and (c) above will be given the code to allow them to access the Documents as the Tribunal considers appropriate or as required under legislation; and
3.    If the Tribunal considers it appropriate to refer to any information in the Materials in the Decision to be handed down in this application, such information will not be published, other than in a non-specific manner, and instead, will be cited or addressed in a Confidential Annexure to the Tribunal’s Reasons for Decision.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for the decision herein of Member K. Parker

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Dated: 10 September 2021
Date of interlocutory hearing:            9 September 2021
Counsel for the Applicant:                 Ms. Fiona Batten
Advocate for the Applicant:               Mr. Aziz Helou and Mr. Justin Marles
Solicitors for the Applicant:                AED Legal
Advocate for the Respondent:           Mr. Nick Crawford, NDIA