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.
[2]
Whether the summonses are a 'fishing expedition'
[3]
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.
[4]
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.
[5]
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.
[6]
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.
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.
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]
[7]
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]
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.
[8]
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]
For these reasons, the applicant's objection is dismissed and the summonses will be issued.
[9]
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for the decision herein of General Member Robertson