Yeats and Comcare (Practice and procedure) - [2025] ARTA 1115

Yeats and Comcare (Practice and procedure) [2025] ARTA 1115 (23 July 2025)
Applicant/s:  Jean Yeats
Respondent:  Comcare
Tribunal Number:                2024/6035
Tribunal:General Member F Eylward
Place:Canberra
Date:23 July 2025

Decision:The Tribunal ORDERS that:
1. The Respondent has leave to inspect the documents produced under summons in the proceedings by:
(a) Bodysystem; and
(b) Grosvenor Street General Practice.

2.The Applicant’s objection to the Respondent’s inspection of the documents produced under summons by the entities above is disallowed.

..................[SGD]......................................................
General Member F Eylward
CATCHWORDS
PRACTICE AND PROCEDURE – summons – objection to inspection of summons material – medical records produced – compensation claim for medical expenses – relevance of summonsed medical records – non-appearance at directions hearing for summons
LEGISLATION
Administrative Review Tribunal Act 2024
Safety, Rehabilitation & Compensation Act 1988
CASES
Martinovic and Australian Capital Territory (Compensation) [2021] AATA 3435
Trade Practices Commission v Arnotts Limited and Others (No. 2) (1989) 88 ALR 90
Woodhouse v Comcare [2021] FCAFC 95
Krampe v Comcare (Practice and Procedure) [2025] ARTA 689
Panagiotou and TNT Australia Pty Ltd [2011] AATA 565
Re Cavanaugh and Comcare [2005] AATA 297
Comcare v Maganga [2008] FAC 285; (2008) 47 AAR 487
ZFCC and Comcare (Compensation) [2018] AATA 1358
Husar and Comcare (Compensation) [2024] ARTA 4
Nikaghanrin and Minister for Immigration, Citizenship and Multicultural Affairs [2024] AATA 3311
Statement of Reasons

This interlocutory decision relates to the Applicant’s objection of 8 December 2024, expanded upon on 20 December 2024, to the inspection of summonsed documents produced to the Tribunal by physiotherapists, Bodysystem, and general practitioners, Grosvenor Street General Practice, as part of the current proceedings, primarily on the basis of relevance and privacy (the objection),[1] in accordance with section 78(5) of the Administrative Review Tribunal Act 2024 (ART Act).
[1] Applicant’s Emails to the Tribunal dated 8 December 2024 and 20 December 2024
The Respondent filed written submissions on 19 March 2025 responding to the Applicant’s objection and pressing the inspection. The Respondent submitted the summonsed documents of Bodysystem and Grosvenor Street General Practice (summons documents) were of ‘apparent relevance’ to the issues in dispute and there was ‘no reason why in its discretion the Tribunal should not allow inspection’ having regard to the applicable case law on inspection of summons documents.[2]
[2] Respondent’s Written Submissions filed 19 March 2025
The substantive proceedings in this matter arise from an Application for Review lodged with the Tribunal on 17 August 2024 seeking review of a decision by the Respondent dated 21 June 2024 (Reviewable Decision), which affirmed an earlier decision denying liability for physiotherapy treatment under section 16 of the Safety, Rehabilitation & Compensation Act 1988 (SRC Act).[3]
[3] T-Documents 1.1
The Applicant has an accepted claim for ‘occupational overuse injury to the common extensor of both elbows, and bilateral trapezius muscle strain in the upper shoulder region’ (compensable conditions), deemed to have occurred during her employment with Services Australia on 23 January 1995 due to repetitive movement using keyboards.
The substantive issues to be determined by the Tribunal are, in brief:
(i)whether physiotherapy treatment is a medical treatment for the purposes of section 16 of the SRC Act;
(ii)whether the ongoing physiotherapy treatment is obtained in relation to the accepted compensable conditions; and
(iii)whether physiotherapy treatment is reasonable for the Applicant to obtain in the circumstances.
The Respondent has also submitted that, given the more recent medical evidence now available that suggests the symptoms may now be degenerative in nature,[4] noting the Applicant ceased employment with Services Australia in 2005, the Tribunal must also consider whether the compensable conditions maintain the requisite connection to that employment to be entitled to medical treatment.
[4] Ibid 2
The question for interlocutory determination is whether complete medical records of a treating physiotherapist and/or the general practitioner referring the Applicant for physiotherapy treatment are of ‘apparent or adjectival relevance’ to the issues to be determined[5] or likely to ‘throw light’ on some of those issues.[6]
[5] Martinovic and Australian Capital Territory (Compensation) [2021] AATA 3435 [14]
[6] Trade Practices Commission v Arnotts Limited and Others (No.2) (1989) 88 ALR 90
DIRECTIONS HEARING
The Applicant’s objection was initially listed for determination at a telephone directions hearing on 19 March 2025 in accordance with the general procedure and for the purpose of section 78(6) of the ART Act.[7] This date was vacated at the Applicant’s request due to needing to attend hospital with her husband (as his full-time carer) for specialist appointments on the same day. She also noted that she had limited availability due to caring responsibilities for her husband, various medical appointments for each of them, and that they would be travelling interstate from 28 March 2025 – 25 April 2025 for a holiday.
[7] S78(6) ART Act ‘If a notice is given under subsection (4) [objection to inspection] the Tribunal must decide whether the document or thing may be inspected or copied by a party to the proceeding.
The matter was relisted to 21 March 2025 after seeking the parties’ unavailability in the immediate future, having regard to the Applicant’s pending travel and the need to progress the matter efficiently.
The mode of the directions hearing listed for 21 March 2025 was also changed from telephone directions to audio-visual to accommodate the Applicant’s reasonable request for an adjustment due to being hearing impaired, resulting in some difficulties with telephone discussions involving more than one person.
The Applicant sought a further adjournment of the re-listed 21 March 2025 audio-visual directions hearing on the basis she would not be available at the time listed due to supervising a personal care attendant scheduled to assist her husband that morning, and grocery shopping to commence between 12:30pm–2:30pm with another home care attendant.
The Applicant also emphasised that she would have minimal availability to attend a directions hearing the following week due to medical appointments and her pending travel arrangements. She indicated she would not have access to her computer on holiday, and whilst she could attend by telephone if required, she would not have any access to documentation relating to her objection.[8]
[8] Applicant Email to the Tribunal dated 16 March 2025
The Tribunal understood from this that if adjourned to a time during the Applicant’s holiday, the directions hearing would need to be by telephone as she would not have the computer facilities to participate by audio-visual, allowing for the necessary adjustments to enable her to properly and fully participate with her hearing impairment. I was of the view this would be procedural unfair to the Applicant, regardless of her agreement to participate by telephone directions if adjourned to a date during her holiday, with the alternatives being to proceed as listed or adjourn the summons objection until after the Applicant’s return from holiday, some 6 weeks away.
Given the Tribunal’s objectives in ensuring applications are determined as quickly as the consideration of the matters before the Tribunal permits,[9] and having regard to the delays already encountered in the proceedings with the first objection being made on 8 December 2024, together with the unfairness to the Applicant should the case event not be able to be conducted by audio-visual, the Applicant’s adjournment request was declined. The listing of the directions hearing by audio-visual on Friday 21 March 2025 was confirmed, though changed to a later time of 4:00pm to allow the Applicant to do her grocery shopping with the assistance of a home care attendant.
[9] Section 9(b) ART Act
Ultimately the directions hearing proceeded on 21 March 2025 with Mr Watts of the Australian Government Solicitor appearing for the Respondent. The Applicant did not appear at the directions hearing on 21 March 2025.
Mr Watts informed the Tribunal that his firm had received an email from the Applicant earlier that day stating she would not be attending at all, despite the later time, as she now would be at a routine blood test with her husband, which had not been included in the list of unavailability she had previously provided to the Tribunal. This accorded with information relayed by Registry of the same day, that the Applicant had advised she would not be attending, regardless of the change in time.
I made directions for the filing of written submissions within 7 days to allow the Applicant, who is self-represented, a further opportunity to expand upon the objection and to reply to the Respondent’s written submissions filed on 19 March 2025, notwithstanding the Tribunal’s power to dismiss an application if an applicant does not appear at a case event.[10]
[10] Section 99 ART Act
The directions issued to the parties further stated that in the absence of any written submissions being filed, the Tribunal would determine the summons objection on the Applicant’s objection (of 8 and 20 December 2024) and the Respondent’s written submissions of 19 March 2025.[11]
[11] Direction 1, Amended Directions of GM Eylward dated 26 March 2025
The Applicant filed a complaint regarding the directions hearing proceeding without her and to the directions made, citing insufficient time to comply, together with the significant distress the ordeal had caused to her in difficult circumstances where she is the full-time carer for an unwell husband without other familial support.[12]
[12] Applicant’s Email and telephone discussion of 26 March 2025
No submissions have been received by the Tribunal from the Applicant to date, notwithstanding the passage of time, nor any further communication about the proceedings.
Accordingly, the summons objection has been considered and determined on the basis of the objection dated 8 and 20 December 2025 and the Respondent’s written submissions of 19 March 2025.
THE SUMMONS OBJECTION
Summonses to Produce Documents were issued in these proceedings by the Tribunal at the request of the Respondent’s solicitors, Australian Government Solicitors, pursuant to section 74(1)(b) of the ART Act, to the following entities, seeking all of the Applicant’s medical records concerning, or arising out of, treatment or consultation to be produced:
(a)Bodysystem
(b)Grosvenor Street General Practice
The summonses were issued on the basis that the Applicant has received physiotherapy treatment from Bodysystem, and medical treatment from her general practitioners at Grosvenor Street General Practice, respectively, and that accordingly, the treatment records are likely to be relevant to the issues before the Tribunal, namely whether the Applicant remains entitled to physiotherapy treatment as a result of her compensable conditions.
The medical records of each entity were produced in compliance with the summonses without objection by either of the addressees and inspection orders were made on 28 November 2024 by General Member Williams, pursuant to section 78 of the ART Act.[13]
[13] Orders of GM Williams dated 28 November 2024
The Applicant, within the allowable timeframe, lodged a written objection to the Respondent’s inspection of the produced documents at the time of seeking advice on how she could view/inspect the documents, herself.
Limited information is contained within the Applicant’s objection explaining why the Respondent should be restricted from inspecting the summons documents and is general in nature without specifying particular documents within the summons documents that are objectionable.
The Applicant’s email of 8 December 2024 states:
‘I understand that the documents that have been requested [the summons documents] cover my entire medical history and, if this is the case, I intend to object to Comcare or their representatives viewing any documents which do not relate to my compensable injury.’[14]
[14] Applicant’s Email of 8 December 2024
At the request of the Tribunal, further information was subsequently provided by the Applicant on 20 December 2024, setting out in more detail the basis of her objection, stating:
‘… I object to Comcare or their representative viewing any documents which do not relate directly to my compensable injury. Any information contained in the summonsed material is irrelevant to the appeal and to the decision made by Comcare to decline liability for physiotherapy…’
…
‘Given the decision only pertains to physiotherapy for an injury for which Comcare has accepted liability… I maintain that Comcare or their representative have no need or right to view any document that does not relate to [sic] directly to that injury. To view medical information relating to other matters is an invasion of my privacy.’[15]
[15] Applicant’s Email to the Tribunal dated 20 December 2024
The Applicant again did not identify any specific documents she objected to being inspected, but rather relies on a general objection to inspection of any documents not directly related to her compensable injury, on the grounds of privacy and relevance.
The Respondent’s written submissions in reply to the objection contend that inspection ought be allowed in contemplation of the substantive issues having regard to the Tribunal’s obligation under section 55(1) of the ART Act to ensure each party is given a reasonable opportunity to:
(a)present [its] case; and
(b)access any information or documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding; and
(c)make submissions and adduce evidence.
The Respondent purports that because one of the key issues in dispute is whether the physiotherapy treatment obtained relates to the compensable conditions, it is necessary to know what condition/s the Applicant is receiving the treatment for, including any non-work contributions, in order to determine whether liability continues to exist and that the treatment maintains the requisite connection to employment.[16]
[16] Woodhouse v Comcare [2021] FCAFC 95
The Respondent further relies on a number of cases referred to in its written submissions that contemplate when leave should be granted for inspection of summonsed medical records: Husar and Comcare (Compensation);[17] TPC v Arnotts Ltd;[18] Re Cavanagh and Comcare;[19] Comcare v Maganga;[20] Nikaghanrin and Minister for Immigration, Citizenship, and Multicultural Affairs.[21] It submitted that these cases, when applied to the facts presented in these proceedings, are overwhelmingly in support of the treating physiotherapy and general practitioners records being considered as having ‘apparent relevance’ to the issues to be determined set out above in the substantive proceedings, and therefore inspection should be allowed.
[17] [2024] ARTA 4
[18] (1989) 88 ALR 90
[19] [2005] AATA 297
[20] [2008] FCA 285; 47 AAR 487
[21] [2024] AATA 3311
In Krampe v Comcare (Practice and Procedure)[22] (Krampe) I considered the question of when inspection of summonsed medical documents should be allowable where an objection has been made on the basis of privacy and relevance. Ultimately, in that decision I was of the view that summonsed medical records of a treating general practitioner did satisfy the accepted test of apparent or adjectival relevance to a compensation claim where one of the issues to be determined included whether the Applicant’s psychological injury was significantly contributed to, or arose out of, his employment, and therefore whether he was entitled to incapacity payments and medical expenses relating to that injury under sections 16 and 19 of the SRC Act (subject to any exclusionary provision, not relevant to the proceedings here). Inspection was granted, though with redactions to some of the medical information as sought by the Applicant in that matter and consented to by the Respondent due to that information bearing no relevance to the proceedings in the circumstances.
[22] [2025] ARTA 689
Unlike in Krampe, the Applicant in this matter has not identified any specific information or documents that she objects to being inspected within the summons documents for me to consider redacting for the purposes of inspection where it would be deemed to have no apparent relevance, but she has rather relied generally on access to the entire summonsed documents as being an invasion of her privacy and irrelevant, unless specifically about her accepted compensable conditions.
I agree with the position taken by Deputy President Forgie regarding relevance and privacy in Panagiotou and TNT Australia Pty Ltd,[23] that, specific to summonsed medical records in compensation claims:
‘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.’
[23] [2011] AATA 565 at [24]
This substantiates the earlier decision in Re Cavanagh and Comcare which observed:
‘…anything that would impact on issues of pain or psychological or psychiatric diagnosis may be of relevance, and it is certainly not a “fishing expedition” for Comcare to want to see a full medical history of the Applicant. Whether any of this material is ultimately relevant or admissible at the hearing of this matter will be a matter for the Tribunal at a later date. At the point of inspection of documents produced under summons, the Tribunal sees no legitimate basis for excluding these three sets of documents from inspection. Any condition from which the Applicant suffers or has suffered may be relevant in the context of the claim.’ [24]
[24] [2005] AATA 297 at [10]
While previous Tribunal decisions are not binding and each matter is to be considered on its own merits and facts, in terms of whether full medical records are relevant in a compensation case rather than only those relating to an applicant’s compensable conditions, often it is likely that the complete medical records of treaters will ordinarily satisfy the established test of apparent relevance such that inspection of them should be allowed given that the key issues to be determined generally involve consideration of medical injuries or conditions, how they have occurred, their connection to the workplace and what treatment is required to assist those injuries, in the absence of any compelling reasons against inspection that may be submitted in each matter or identification of particular information or documents.
This is particularly so in the current proceedings with regards to summonsed documents produced by a treating physiotherapist and the general practitioner who has referred the Applicant for physiotherapy treatment where the Applicant seeks the cost of ongoing physiotherapy treatment. How this could be said not to be relevant to the key issues to be determined is misconceived.
INTERLOCUTORY DECISION
It will be essential for the Tribunal to determine at Hearing whether the Applicant’s ongoing physiotherapy treatment is required due to the Applicant’s compensable conditions, or whether, as asserted by the Respondent, the treatment now relates to symptoms or contributions arising from degeneration or other factors and not the work injury.

Necessarily, the complete summonsed medical records of a treating physiotherapist and the referring general practitioners will be able to throw light on this question to assist the Tribunal in reaching the correct and preferable decision in the context of this matter.
The contemporaneous medical records of a treating physiotherapist and the referring general practitioner is the primary source to be able to ascertain that. Should there be no reference in the summonsed documents to injuries, conditions or causes other than the work injury, naturally this would be to the Applicant’s benefit and support her assertion that she ought be entitled to physiotherapy treatment because it is for her compensable conditions, arising out of her work injury. It goes to the heart of the proceedings brought by the Applicant.
Further to this, the Respondent is entitled to test the claim brought by the Applicant that the physiotherapy treatment is only for treatment of her work related injury and not due to other injuries, conditions or causes. It would cause an injustice to restrict or limit the Respondent from being able to investigate and verify what treatment the Applicant is receiving and for what reason by not granting them leave to inspect the summons documents under section 78 of the ART Act.
With respect to the objection that inspection of the summonsed documents on the grounds of privacy and relevance where the substantive issues to be determined are primarily whether physiotherapy treatment continues to be related to the Applicant’s compensable injury and is reasonable in the circumstances such to be entitled to compensation under section 16 of the Safety, Rehabilitation & Compensation Act 1988 (SRC Act), I accept that the summons documents of a treating physiotherapist and the referring general practitioner do have apparent and adjectival relevance to the Tribunal’s determination and therefore should be inspected by both parties in preparation for the Hearing.
I am persuaded by the decisions relied upon by the Respondent providing guidance in determining this summons objection with regard to the particular facts of the subject proceedings. The Applicant has not put forward any submissions as to why they should not apply in this instance or how this matter is distinguishable from those cases for me to consider.
Accordingly, I disallow the Applicant’s objections to inspect the summons documents produced by Bodysystem and by Grosvenor Street General Practice.
The Respondent has leave to inspect the documents produced by Bodysystem and by Grosvenor Street General Practice forthwith.
Solicitor for the Applicant: Self-represented
Solicitor for the Respondent: Jamie Watts
Australian Government Solicitors