PRACTICE AND PROCEDURE - compensation claim for psychological injury - summons - objection to inspection of summons material - relevance - request to inspect summonsed material allowed in part - relevance of Medicare Claims History Statement and general practitioner records - date limitations to inspection of summonsed documents - implied undertaking of confidentiality - fishing expedition for Medicare Claims History Statement and Pharmaceutical Benefits

Administrative Review Tribunal Act 2024 (Cth)

Re Marnotta Pty Ltd and Secretary, Department of Health and Ageing [2005] AATA 800

Dean and Comcare [2019] AATA 99 at [5]- [17]

ZFCC and Comcare [2018] AATA 1358

Martinovic and Australian Capital Territory (Compensation) [2021] AATA 3435 [14]- [17]

Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250

Trade Practices Commission v Arnotts Limited and Others (No. 2) (1989) 88 ALR 90, 103

Comcare v Maganga [2008] FAC 285; (2008) 47 AAR 487 at [37]- [38]

ZFCC and Comcare (Compensation) [2018] AATA 1358 at [14]

Re Cavanaugh and Comcare [2005] AATA 297 at [10]

Panagiotou and TNT Australia Pty Ltd [2011] AATA 565 at [24]

Tretheway and National Disability Insurance Agency [2025] ARTA 88

Franklin and John Holland Pty Ltd (Compensation) [2025] ARTA 201

Medtest Pty Ltd and Medicare Participation Review Committee & Anor [2003] AATA 983

Harman v Secretary of State for Home Dept [1983] 1 AC 280

Jones v Comcare (Compensation) [2019] AATA 5407

Administrative Review Tribunal (Common Procedures) Practice Direction 2024

1. This interlocutory decision relates to the Applicant's objection to the inspection of summonsed documents produced to the Tribunal as part of the current proceedings, primarily on the basis of privacy and relevance.
2. The substantive proceedings in this matter arise from an Application seeking review of a decision made by the Respondent on 14 September 2024 (Reviewable Decision), which affirmed an earlier decision of 25 July 2024 denying liability to pay compensation to the Applicant pursuant to section 14 of the Safety, Rehabilitation & Compensation Act 1988 (SRC Act).[1] This was in response to a claim submitted by the Applicant on 29 May 2024 for 'psychosocial hazard', said to be due to exposure over a prolonged period of time to psychological and physiological harm from 8 April 2024 relating to the management of an investigation into the Applicant's conduct on 12 March 2024 by his employer, the Department of Defence.[2]
3. The Reviewable Decision cites reasonable administrative action under section 5A of the SRC Act as the reasons for declining liability.
4. The Applicant's treating general practitioner, [Dr BP] of [Medical Centre] certified the Applicant as not being fit to return to work on 15 April 2024 for a period of time, with a diagnosis of 'psychosocial injury causing anxiety, headache, insomnia and disruption of interpersonal relationships'.[3]
5. Pursuant to section 54 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act), the Tribunal may exercise the powers and discretions afforded to the original decision-maker and essentially considers and decides the matter afresh on all of the evidence before it, otherwise known as, on a de novo basis.
6. The interlocutory issue in dispute before the Tribunal for me to now consider is whether the Applicant's objection to the full inspection of the material produced in these proceedings by [Dr BP] and/or Services Australia in compliance with a summons, including those documents pre-dating 12 March 2024 should be upheld.

1. On 10 December 2024, the Tribunal issued three summons in these proceedings pursuant to section 74(1)(b) ART Act. These were at the request of HBA Legal, the solicitors for the Respondent and required production of the documents listed within the summonses by 8 January 2025 as follows:

(a) The Proper Officer, Subpoena Team, Services Australia: > > Copy of Medicare Claims History Statement, a History Statement of Pharmaceutical Benefits and a list of serviced received by [the Applicant] (DOB: [redacted]) > > (b) [Dr BP], [Medical Centre]: > > All files, records of treatment, records of any medical investigations including x-rays and the like, notes of visits, interview notes, patient notes, correspondence, copies of correspondence, referral letters, reports and letters from other doctors, patient history cards, relating to [the Applicant] (DOB: [redacted]) > > (c) [Ms JAD], [Psychology Practice]: > > All reports, files, mental health plans, psychological and psychiatric reports, counselling records, clinical notes and cards, specialists' reports, hospital notes/records, reports, referrals, test results and any other files and documents evidencing any treatment in respect of any condition or injury relating to [the Applicant] (DOB: [redacted])

Notably, the description of the required documents in each of the summons does not specify any time parameters or limitations of the records to be produced.

1. Documents were subsequently produced by each of the summonsed entities in compliance with the summons without any objection by the addressees, and inspection orders were made by Deputy Registrar Floramo on 9 January 2025 pursuant to section 78 of the ART Act. The orders granted leave to the Applicant to first inspect the documents, followed by the Respondent 14 days later from 23 January 2025, subject to any written objection from the Applicant being received by the Tribunal within that timeframe.[4]

1. On 21 January 2025 (within the prescribed timeframe), the Applicant, who is self-represented, objected in writing to the Respondent inspecting those documents predating 12 March 2024 produced by [Dr BP] of [Medical Centre], and Services Australia.
2. The Applicant objected to any documents prior to the date of 12 March 2024, being the date of the investigated work event ('the work event'), being disseminated to the Respondent for inspection, but was content for documents from 12 March 2024 to be inspected, conceding the reasonableness of the inspection of those records and potential relevance to the issues before the Tribunal.
3. The objection was primarily on the basis that the medical records of [Dr BP] spanned a period of 20 years and included private and sensitive information [specified medical treatment] not relevant to the claim, and secondly, that the Services Australia Medicare History Statement and Pharmaceutical Benefits list spanned a history of 40 years. The Applicant submitted that this could only be considered as an invasion of privacy by the 'pub test', having little relevance to the issues in dispute before the Tribunal.[5] The Applicant questioned the purpose and relevance of the documents to the current proceedings given that the Reviewable Decision declined liability due to reasonable administrative action.
4. The Respondent opposed the objection and responded to the Tribunal on 24 January 2025, stating:

"The relevance of the summonsed material lies in its ability to clarify the Applicant's medical history, employment history, and any other psychosocial issues that may have contributed to his current psychological condition. Excluding these documents may limit the Tribunal's ability to consider all pertinent facts in this matter."[6]

The Respondent did, however, agree that material relating to the Applicant's [specified medical treatment] could be redacted, presumably on the basis it was irrelevant.

1. On 26 March 2025, the matter came before me for a different reason, namely, non-compliance with previous directions made relating to the Respondent's notification of a medical appointment. It was during the directions hearing that the parties raised the issue of the Applicant's outstanding objection to the summons material being inspected by the Respondent. Regrettably, neither the summons objection, nor the consent to the inspection of the documents produced by the Applicant's treating psychologist, [Ms JAD], had been actioned nor listed for consideration by the Tribunal at that time.
2. During the course of the directions hearing, the Applicant confirmed that he had no objection to the Respondent inspecting the documents produced by [Ms JAD]. Accordingly, I made orders granting leave for a staggered inspection of those documents, with the Applicant having first access for 7 days, then the Respondent. The Applicant confirmed that he maintained his objection to the Respondent inspecting the documents produced by [Dr BP] and Services Australia that pre-dated 12 March 2024.
3. The Applicant submitted orally that his objections related to the extent of the documentation the Respondent was seeking to inspect and its relevance to the proceedings. This was in circumstances where the documents span some decades prior to the work event of 12 March 2024 that precipitated the claimed injury date on 8 April 2024. The Applicant further submitted that any records pre-dating 12 March 2024 were an invasion of privacy and would include confidential, irrelevant and sensitive information. He reiterated his position set out in his email of 21 January 2025 that these are not at all pertinent to the substantive issues before the Tribunal and therefore should not be inspected.
4. The Respondent's solicitor submitted that the documents to be inspected include the Applicant's medical (and any psychological) history, and a list of previous medical practitioners the Applicant has sought treatment from and medications.
5. The Respondent contended that the documents are entirely relevant to the consideration of the substantive issues in dispute as a de novo determination, namely:

(a) whether the Applicant suffers from a psychological injury, > > (b) whether this was significantly contributed to by his employment, as required under the SRC Act for the Respondent to be liable to pay compensation, or > > (c) whether there were other causative factors, or a previous history of psychological symptoms or diagnoses, and > > (d) if he is excluded from an entitlement to compensation due to reasonable administrative action.

The Respondent made further reference to it being within the usual course of these types of proceedings for the relevant authority, in this case Comcare, to undertake due diligence in requesting medical records from treating medical practitioners, with a general acceptance that the Respondent is entitled to 'test' the case.

1. I directed the parties to file written submissions for determination on the papers, not having the benefit of the summonses issued before me, nor the Applicant's original written objection or correspondence from the parties with the Tribunal registry about the summons.
2. The Respondent did not oppose a redaction of references to [specified medical treatment] in the documents, should inspection be allowed.
3. The written submissions filed by the parties further supported their oral submissions made at the directions hearing. The Applicant further referred to his consistently high-performing history with the Department as 'evidence against claims of pre-existing psychological conditions'. He outlined his concerns that the extent of the documentation produced was an invasion of privacy and inspection should not be granted on the grounds of moral injustice and the notable difference to his circumstances following the work event, being a mental health injury.[7] He also cited the 'pub test' as not being satisfied by the Respondent in their invasion of his privacy, and, that the Respondent had failed to identify who would have access to the documents, being private in nature.
4. The Respondent's reply set out the applicable case law it submits the Tribunal should apply in this matter when deciding whether inspection should be reinstated, with documents being sufficiently relevant to warrant it, balanced with the right to privacy. The Respondent specifically relied upon Re Marnotta Pty Ltd and Secretary, Department of Health and Ageing[8] and Dean and Comcare[9], which references Deputy President Humphries' view in the matter of ZFCC and Comcare[10] as follows:

"An applicant who wishes to have a matter determined in the tribunal has already made a decision to sacrifice some degree of their privacy in the pursuit of that goal."

5. The Respondent, in its submissions, also sought to clarify that at this preliminary stage of the proceedings, it may be that upon inspection of the documents in their entirety_,_ there is no directly relevant information to the substantive issues and therefore there would be no further use of the documents or reliance in the proceedings, but reiterating that until inspection occurred, it was unknown.[11]

1. Section 74(1)(b) of the ART Act provides that the Tribunal can issue a summons to a person (including someone not a party to the proceedings) requiring them to produce any document or thing specified in the summons if the Tribunal has reasonable grounds to believe that the person has information, or a document or thing, relevant to a proceeding in the Tribunal.
2. Section 78 of the ART Act specifies that a party may inspect documents produced in response to a summons with the following exceptions:

(a) if there is a public interest certificate that relates to the disclosure of the document; > > (b) if the inspection would result in disclosure of information which is prohibited or restricted by, or under the ART Act, or other law; or > > (c) if the summons recipient or a party to the proceedings objects.

3. Any notice of objection must be in writing and contain reasons for the objection. If an objection is made to the inspection of any materials produced, the Tribunal must decide whether a document may be inspected.[12]
4. The Tribunal's discretion to grant leave to parties to inspect documents is subject to the general principles enunciated at section 55(1) of the ART Act in that the Tribunal must ensure that each party to a proceeding is given a reasonable opportunity to:

(a) present its case; > > (b) access any information or documents to which the Tribunal proposes to have regard to in reaching a decision in the proceedings; and > > (c) make submissions and adduce evidence.

Overarching all of this are the principles of administration of justice and procedural fairness.

1. There is considerable case law relating to the question of 'relevance' for the purpose of granting inspection of summons documents, as distinct from what may be considered 'relevant' at the Hearing. It is fairly well established that a summons 'must be for a legitimate forensic purpose'[13] and not be for a 'fishing expedition'[14] in the hope something of relevance or interest arises. That would be an abuse of process.
2. Whether the summons is for a legitimate forensic purpose as opposed to a fishing expedition must be considered in the context of the substantive proceedings and whether the documents are likely 'to throw light'[15] on some of the issues. The applicable test established in Martinovic and Australian Capital Territory[16] is that the material must have 'apparent or adjectival relevance' to the issues to be determined.
3. This is not too dissimilar to the earlier decision in Comcare v Maganga[17] where the Federal Court held that the party seeking to inspect the documents does not need to establish that the documents will establish anything, but, rather, whether there is a real possibility the documents may assist in the resolution, or narrowing, of some of the issues in dispute in the substantive proceedings, ergo 'apparent or adjectival relevance'.
4. This is a low threshold in compensation matters when taking into account the contrary view that the absence of a similar pre-existing diagnosis in medical records or references to other factors at the time of the injury, itself, could be construed as resolving the issue of a pre-disposition or contribution to the claimed injury other than employment. The general assumption presumes that summonsed documents from a medical practitioner in a compensation matter including historical records is that there is a possibility of other diagnoses or contributing factors to the injury being discovered, but the absence of such information could equally be considered to fall within the definition in Comcare v Maganga and satisfy the threshold for inspection to be granted.
5. Further, what may appear to have no relevance at the point of inspection in narrowing the issues in dispute may change throughout the course of a proceeding, and vice versa, what may seem of little relevance at the time of inspection may take on importance as the matter progresses to Hearing. In ZFCC and Comcare (Compensation)[18], the then Deputy President insightfully stated [at paragraph 14]:

"Even when the content of a particular record is fully comprehensible, the relevance of that content to the issue before the Tribunal may not be readily apparent. A member of the Tribunal lacking medical qualifications, as most of us do, is ill- equipped to determine the possible relevance of particular medical records to a particular claimed condition."

"...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."

7. In cases where the Applicant seeks compensation for injuries claimed to have occurred during the course of employment, or being significantly contributed by their employment, it would be hard to deny that complete medical records of a treating general practitioner would be of apparent relevance to the consideration of the issues such to not allow inspection.
8. The conclusion reached in ZFCC and Comcare (Compensation) is reflective of the observations made in Re Cavanaugh and Comcare[19], providing guidance when considering the inspection of medical records:

"...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."

9. It is important to note that, of course, this must be weighed in the context of the summons and what documents are requested to be produced. Arguably, extensive medical records dating back to early childhood for a middle-aged Applicant setting out illnesses and injuries sustained in primary school could not be considered to have apparent or adjectival relevance in the context of a claim for a frank injury.
10. Deputy President Forgie considered the production of medical records, specifically, in Panagiotou and TNT Australia Pty Ltd[20], applicable to the summonsed documents of Dr Price in this matter, and ultimately was of the view that:

"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."

11. In this matter, I appreciate that to the Applicant, inspection of the summonsed documents from Dr Price spanning approximately 20 years of his private medical records on what he considers to be a case only about the Department's administrative action feels like an invasion of privacy. That is because, regrettably but necessarily, it is. As a de novo determination, the matter before the Tribunal is not limited to only whether the administrative action was reasonable, but rather, the claim as a whole is considered afresh on all aspects and includes the evidence put before it at Hearing.
12. The Tribunal must consider the claimed injury and entitlement to compensation against the SRC Act, with the issues being (1) whether the Applicant suffers from a disease, being an ailment, or aggravation of an ailment that was contributed to, to a significantly degree by the Applicant's employment, as well as (2) whether the disease, being an injury, was suffered due to reasonable administrative action taken in a reasonable manner in respect of his employment. It is misperceived to proceed on the basis that the issue before the Tribunal only pertains to the reasonable administrative action.
13. Necessarily, the Tribunal would be benefitted by having a medical history to address the first issue, as would any expert witnesses giving evidence, to be able to make the correct and preferable decision. The Tribunal will 'rule on ultimate issues of relevance at the time the material is sought to be tendered' at Hearing[21] but to be able to do so, the parties must have the opportunity to seek and inspect documents that have apparent or adjectival relevance in the early stages of proceedings to determine what they wish to put before the Tribunal in support of their case.
14. The Applicant's distress is further magnified by his concern as to who will ultimately have access to those records within Comcare and potentially within the Department of Defence. This is an entirely reasonable and legitimate concern for an unrepresented Applicant to have, however I consider the Applicant's concern to be mitigated by the strict limitations and protocols applied to documents compelled to be provided to a Tribunal or Court as part of legal proceedings (such as summonsed documents). This is otherwise known as the implied undertaking of confidentiality or Harman Undertaking[22] that such documents may not be used for any purpose other than for the purpose of the application or proceedings to prevent misuse of documents. Grave consequences follow should the undertaking be breached, including significant penalties.
15. The implied undertaking is taken extremely seriously and continues beyond the finalisation of a Court or Tribunal proceedings. The Tribunal devotes a number of paragraphs to the implied undertaking within its own Practice Directions[23]:

"a person who receives a document provided under summons is subject to an implied undertaking [of confidentiality] not to use the document for any purpose other than the purpose of the application. This implied undertaking continues after an application has been finalised. The parties need to apply to the Tribunal seeking leave, or permission, to be able to use the summonsed documents for any other purpose.

16. The objectives of this are to encourage full disclosure between parties and support decision-makers comply with their obligations under section 56 of the ART Act to use their best endeavours to assist the Tribunal make the correct and preferable decision, whilst acknowledging the compulsion to produce documents in a proceeding can violate a party's right to confidentiality.
17. The implied undertaking would also apply to the documents produced by Services Australia to reassure the Applicant that any medical practitioners he has consulted in the past 40 years, or medications prescribed and filled on the Pharmaceutical Benefits Scheme could only be used for the purposes of the current proceedings, and not for any other purpose.
18. However, the question of whether the Services Australia documents contain information that has apparent or adjectival relevance to the issues before the Tribunal must be satisfied in order to allow the inspection. Deputy President Forgie considered precisely this issue in Jones v Comcare[24] when contemplating a request by the Applicant to set aside a summons issued to Medicare Australia for the Medicare Claims History Statement and Pharmaceutical Claims History report, as has been produced in this matter.
19. Deputy President Forgie ultimately held that the summons to Medicare Australia for the claims and pharmaceutical benefits without any date limitations (so encompassing the Applicant's entire list from its establishment) should be set aside, commenting at [27-30]:

"Certainly, they relate to a medical or health services rendered to Mr Jones but there is nothing in the nature of the documents that may throw light on the particular issues that will be raised in reviewing Comcare's two decisions. > > ...Furthermore, by seeking such a broad range of documents, Comcare has described a pool of documents, as it were, that draw in 35 years of health or medical services provided... Comcare seeks to filter that pool of documents to locate any that relate to the two decisions under review. > > ...Whether Comcare were to use a filter or a dragnet to look for documents that may have a real possibility of assisting in the resolution of the matter, its task cannot escape the description of "fishing". It has requested the issue of the summons in the hope that what is returned will disclose fish, or a school of fish that are relevant to the issues."

1. On that basis and having regard to the contents of the documents produced by [Dr BP], I accept that these documents do have apparent and adjectival relevance to the Tribunal's assessment of the whether the Respondent is liable to pay compensation under the SRC Act. Accordingly, I dismiss the Applicant's objection to inspect the documents produced by [Dr BP], and grant the Respondent leave to inspect the documents produced with redactions of references to [specified medical treatment].
2. I do not accept that the documents produced by Services Australia consisting of the Medicare Claims History Statement and Pharmaceutical Benefits list spanning approximately 40 years is likely to have any apparent or adjectival relevance to the issues in the substantive proceedings in the absence of any further information or connection.
3. Nor will a list of medical practitioners or pharmaceuticals without any context as to what the treatment or medication was for dating back decades prior to the work event assist the Tribunal in making the correct or preferable decision[25]. Indeed, in my view, it may simply muddy the waters at great cost, both in terms of time efficiency, privacy and financially, to both parties and the Tribunal, where a second step would be necessary (the issuing of a further summonses) to remotely satisfy the apparent or adjectival relevance test.
4. It can only be considered as a "fishing expedition" with the intent of identifying a medical practitioner the Applicant has consulted over an approximate 40 year history to whom the Respondent may want to issue a summons to in the hope that something may arise from those summonsed documents, once produced, that may be relevant to his claimed psychological injury.
5. That an Applicant to a compensation claim should have to accept that upon making such a claim, any right to privacy at all ceases to exist over any pharmaceuticals or treatment providers an Applicant has consulted from decades before a claimed injury does not seem to me to be within the inherent requirements of the administration of justice, nor in the public interest. This does not serve a legitimate forensic purpose.

Solicitor for the Respondent: Brett Ablong of HBA Legal

[1] T-Docs filed by the Respondent T1, T13, T19

[5] Applicant Emails dated 21 & 29 January 2025 and Written Submissions filed 31 March 2025 and 9 April 2025 Objecting to the inspection of documents

[6] Respondent Email to the Tribunal dated 24 January 2025 10:07am

[8] [2005] AATA 800

[9] [2019] AATA 99 at [5]- [17]

[10] [2018] AATA 1358

[11] Respondent's Written Submissions filed 7 April 2025

[13] Martinovic and Australian Capital Territory (Compensation) [2021] AATA 3435 [14]

[14] Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250

[15] Trade Practices Commission v Arnotts Limited and Others (No. 2) (1989) 88 ALR 90, 103

[17] [2008] FAC 285; (2008) 47 AAR 487 at [37]- [38]

[18] [2018] AATA 1358 at [14]

[19] [2005] AATA 297 at [10]

[20] [2011] AATA 565 at [24] also cited in Tretheway and National Disability Insurance Agency (Practice and Procedure [2025] ARTA 88

[21] Medtest Pty Ltd and Medicare Participation Review Committee & Anor [2003] AATA 983 cited in Franklin and John Holland Pty Ltd (Compensation) [2025] ARTA 201

[22] Harman v Secretary of State for Home Dept [1983] 1 AC 280

[23] Administrative Review Tribunal (Common Procedures) Practice Direction 2024 at 6.21-6.27

[24] [2019] AATA 5407 at [27]- [30]