Workers compensation - interlocutory issues - discretion to allow expert witnesses to attend hearing other than in person - summons issued at request of worker to independent medical specialist retained by employer - whether summons ought to be set aside

Workers Rehabilitation and Compensation Act 1988; ss 42, 77AA, 81A, 81A(5), 90B

Tasmanian Civil and Administrative Tribunal Act 2020; ss 10, 82

Doyle v Cooper as Liquidator of NQ Minerals PLC (in liq), in the matter of Doyle [2025] FCA 1008;

Kirby v Centro Properties Ltd [2012] FCA 60;

Attorney-General (Tas) v Von Stalheim [2008] TASSC 88;

R v Hove Justices; ex parte Donne [1967] 2 All ER 1253; Witness v Marsden [2000] NSWCA 52, 49 NSWLR 429 at 441-442 [54]- [60];

V v Caterpillar Underground Mining Pty Ltd [2015] TASWRCT 44

The decision has been anonymised for the purpose of publication.

1. The worker made a claim for workers compensation in November 2023. The claim was for injuries to the left shoulder, neck and thoracic spine. There is an issue about the alleged date of injury (whether 3 November 2023 or 4 November 2023) but that is not a matter that is relevant to the resolution of the interlocutory questions that are now being dealt with. The claim was supported by an initial workers compensation medical certificate dated 8 November 2023 which noted the worker's presenting symptoms to be "left shoulder, neck and thoracic back pain, exacerbated by work duties operating heavy machinery". The worker was certified incapacitated for work.
2. The employer did not dispute liability for the claim under s 81A of the Workers Rehabilitation and Compensation Act 1988 (the WRC Act), and by virtue of s 81AB the employer was thereby taken to have accepted liability in respect of the worker's claim.
3. On 20 December 2024 the employer filed a referral pursuant to s 81A(5) of the Act, now disputing liability to pay compensation by way of weekly payments or benefits payable under Division 2 of Part VI of the Act.
4. The Tribunal conducted a conciliation process in relation to the employer's s 81A(5) referral in accordance with s 42C that ultimately, following a conciliation conference on 21 August 2025, the parties were unable to reach agreement to resolve the matters between them, and the referral has been listed for hearing.
5. On 11 April 2025 the worker filed a referral of his own, firstly seeking an assessment of the worker's whole person impairment pursuant to s 71 of the Act, and secondly, seeking determination that the employer is liable to fund treatment for the work related injury under s 77AA(5), and particularised a number of medical expenses in relation to which the employer had disputed liability to pay.
6. Both parties have filed a statement of facts, issues and contentions. Both parties agree that the first issue the Tribunal will be required to determine is whether the employer is liable to pay compensation to or on behalf of the worker by way of weekly payments or the cost of benefits payable under Division 2 of Part VI of the Act.
7. The employer relies upon two reports of Dr Alison Drewry, Consultant Occupational Physician. Dr Drewry's reports are dated 8 November 2024 and 11 July 2024.
8. The worker relies upon a medical report of Dr Vaidya Bala, Consultant Physician in Rehabilitation Medicine. Dr Bala's report is dated 19 March 2025.
9. In accordance with pre-hearing directions made by Senior Member Thompson on 30 September 2025 the worker informed the employer that he intended to call Dr Bala and Dr Timothy Stewart to give evidence remotely.
10. Dr Timothy Stewart is an Occupational Physician. In about May 2024 he examined the worker and produced a report dated 14 May 2024. His report was obtained by the employer's solicitors.
11. On 9 October 2025 the worker served the employer with a summons endorsed by the Tribunal requiring Dr Stewart to attend the hearing and give evidence. On 10 October 2025 the employer notified the Tribunal and the worker that it objected to the summons, and sought to have the summons set aside.
12. The worker objects to Dr Drewry giving evidence remotely by audio visual link.
13. The employer objects to Dr Bala giving evidence remotely by audio visual link.
14. I heard the parties at a directions hearing on 3 November 2025. The issues that I needed to resolve are:

(i) Whether Dr Drewry is permitted to give evidence remotely via audio visual link at the hearing.

(ii) Whether Dr Bala is allowed to give evidence remotely via audio visual link at the hearing.

(iii) Whether the summons issued to Dr Timothy Stewart ought to be set aside.

1. The proceedings had been listed for hearing in the week commencing 25 November 2025. On 7 November 2025 the parties were advised of my rulings in relation to the above issues, and that a statement of written reasons would be provided. These are the reasons.

1. The main objectives of the Tribunal are set out in s 10 of the TASCAT Act, and include

(d) to keep costs to parties involved in proceedings before the Tribunal to a minimum insofar as is just and appropriate; and > > (g) to be flexible in the way in which the Tribunal conducts its business and to adjust its procedures to best fit the circumstances of a particular case or a particular jurisdiction.

2. As a general starting point, it is expected that a witness in a hearing before the Tribunal will attend to give evidence in person. However, the Tasmanian Civil and Administrative Tribunal Act 2020 (the TASCAT Act) gives the Tribunal a discretion to permit a witness to give evidence other than in person. Section 82 of the TASCAT Act relevantly provides:

82. Electronic hearings and proceedings without hearings > > (1) If the Tribunal considers it appropriate, it may allow - > > (a) the parties and their representatives; and > > (b) any witnesses, or one or more of them - > > to participate in any proceedings by means of telephone, video link or any other system or method of communication.

3. Matters that have historically been considered to be potentially relevant to the question of whether a witness may be relieved from attending a hearing to give their evidence in person have included (but are not limited to) the nature of the evidence to be given, whether there are issues of credit that may arise in the proceedings, and whether there may be practical difficulties regarding the evidence of the witness being given in chief or under cross examination.
4. Generally speaking, the discretion to permit evidence to be given remotely would be consistent with the objectives of the Tribunal, and commonly be exercised where an expert witness from interstate or overseas was to be relied upon by one party - matters relevant to the discretion would include that the evidence would be expert opinion evidence given by an independent witness who had agreed to abide by the TASCAT expert witness code of conduct, the significant inconvenience to an expert witness who would be required to forego at least one, more likely two days from professional practice interstate (or overseas), and whether there is anything likely to mitigate against evidence effectively being given.
5. The employer helpfully referred to a recent Federal Court decision Doyle v Cooper as Liquidator of NQ Minerals PLC (in liq), in the matter of Doyle [2025] FCA 1008 Collier J reviewed approaches taken particularly by the Federal Court in relation to the issue of the discretion to permit evidence to be given remotely. Ultimately her Honour declined to add to the 'plethora of opinions' on the effectiveness of evidence given by audio-visual link, and agreed with the observations of Gordon J in Kirby v Centro Properties Ltd [2012] FCA 60 at [11]:

There is little to be gained by adding another or different gloss on the state of the authorities. In the end, each case will turn on its own facts and circumstances and the exercise of discretion as to what is appropriate in a particular case will involve a balancing exercise as to what will best serve the administration of justice consistently with maintaining justice between the parties. All modern Courts seek to limit the costs of litigation. One cost is in requiring a witness, especially a witness who is not a party, to travel to Australia to give viva voce evidence. Whether that cost can be minimised by giving that evidence by video link, as has been said, will need to be assessed not just on a case by case basis but also on a witness by witness basis.

These observations are equally applicable to Tribunal proceedings.

1. The employer's s 81A(5) referral relies substantially on Dr Drewry's opinion. It was Dr Drewry's opinion, expressed in her report dated 29 October 2024, that there was no evidence of a work incident/injury as claimed by the worker, and it was her opinion that the worker's presentation at the time she assessed him was "consistent with opioid use and malingering (voluntary exaggeration of symptoms for secondary gain such as compensation, avoidance of work, etc)".
2. Dr Drewry indicated in her report that her opinion was based, in part, upon her findings upon physical examinations of the worker, which included assessments as to various ranges of movement. I note also that in her subsequent report dated 11 July 2024, Dr Drewry provided commentary on the results of Dr Bala's physical examination of the worker (as outlined in Dr Bala's report dated 19 March 2025) which she advised supported her own conclusions.
3. The employer says that it would be appropriate for Dr Drewry to be permitted to give evidence by audio-visual link because she is an independent expert witness, she lives and works in New Zealand, and the cost and time involved with her having to travel to Hobart to give evidence in person would be significant, and her evidence is likely to be just as effectively be capable of being given by audio-visual as in person.
4. The worker says that Dr Drewry should be required to attend the hearing to give evidence in person. Counsel for the worker advised that his intention is to cross examine of Dr Drewry in respect of her physical examination of the worker, including in relation to assessment of ranges of movement. He said his cross examination will, in part, involve certain physical positions being put to Dr Drewry with the use of a life-size, medical mannequin. It is the employer's position that these particular aspects of cross-examination of Dr Drewry will rely upon Dr Drewry being physically present with the mannequin.
5. The employer says that the worker could use pre-recorded video footage of the medical mannequin to cross-examine Dr Drewry remotely.

Should Dr Drewry be permitted to give evidence by audio-visual link?

1. The employer's case is substantially based on Dr Drewry's opinion, and the results of her physical examination of the worker forms one of the grounds of that opinion.
2. I accept that requiring Dr Drewry to attend the Tribunal to give evidence in person will be a significant impost on Dr Drewry's time, and will likely incur substantial expense.
3. For the reasons I have discussed above, it is relatively common for expert witnesses to be permitted to give evidence by audio-visual link. However, in the present case I consider that Dr Drewry ought to be required to attend to give evidence in person.
4. I have given particular weight to the submissions regarding counsel's intentions regarding cross-examination of Dr Drewry, and I consider it is likely that the proposed cross-examination would be likely to be highly impracticable, if not impossible, if Dr Drewry did not attend the hearing in person.

1. Dr Bala's opinion is that the worker has a chronic pain outcome as a result of the work injury. He disagrees with Dr Drewry's conclusions.
2. The worker submits that Dr Bala should be permitted to give evidence via audio-visual link because he is giving expert independent evidence, there are no issues of credit, there is no suggestion that his evidence in chief and cross examination could not effectively take place over audio-visual link, and there would be significant cost and inconvenience associated with requiring him to attend the hearing in person, including not only the costs of travel from Melbourne but also loss of income and many patients who have been on public waiting lists having to be rescheduled to other dates.
3. I do not understand the employer to raise any particular reason why Dr Bala should not be permitted to give his evidence other than in person.

Should Dr Bala be permitted to give evidence by audio-visual link?

1. It is appropriate that Dr Bala be permitted to give evidence by audio-visual link. There is nothing to suggest that cross-examination of Dr Bala could not effectively be undertaken if he was not attending in person. To permit Dr Bala to attend the hearing other than in person is consistent with the objectives of the Tribunal.

1. The employer says, and I do not understand the worker to say otherwise, that Dr Stewart conducted an independent medical assessment of the worker at the request of the employer's solicitors in relation to the worker's claim for compensation. The employer, in compliance with s 90B(3)(a) of the WRC Act served Dr Stewart's report on the worker's general practitioner.
2. The employer says that Dr Stewart's report came into existence for the dominant purpose of litigation - specifically to enable the employer's solicitors to provide advice to the employer, that the report attracts legal professional privilege, and that the employer has done nothing inconsistent with the maintenance of that privilege in respect of the report.
3. I do not understand the worker to disagree with any of the above regarding Dr Stewart's report.

1. As I set out above, a summons was issued at the request of the worker requiring Dr Stewart to attend the hearing for the purpose of giving evidence. The employer says the summons ought to be set aside on the basis that the only evidence that Dr Stewart would be able to give would be subject to legal professional privilege arising from the assessment of the worker he undertook at the request of the employer. The employer says that the summons ought to be set aside on the basis that Dr Stewart could not give any admissible evidence in the proceedings.
2. The employer refers to Attorney-General (Tas) v Von Stalheim [2008] TASSC 88, where Porter J was asked to set aside a substantial number of summonses (directed for the most part to judicial officers, magistrates, legal officers of the Crown and staff of State courts and a tribunal) and observed at [25][1]:

...it is proper to set aside a witness summons simply where the court is not satisfied that the witness can give relevant and admissible evidence.

3. The worker says that the summons should not be set aside, that Dr Stewart ought to be required to attend the hearing in accordance with the summons, and that the question of whether legal professional privilege attaches to Dr Stewart's report ought to be dealt with in the course of the hearing.
4. The worker also says that the summons ought not to be set aside because there exists a possibility that Dr Stewart may be in a position to give evidence other than that obtained for the purpose of preparing his report for the employer's solicitors. Counsel advised that the worker's solicitors have written to Dr Stewart and asked him whether he would be prepared to undertake a fresh assessment of the worker and provide a report to the worker's solicitors. On that basis, it was submitted that that any evidence that might be capable of being given by Dr Stewart in response to the summons may not necessarily be confined to evidence that was not admissible.
5. In response to this last point, the employer says any attempt by the worker to engage Dr Stewart amounts to an abuse of process to circumvent the privilege attaching to Dr Stewart's evidence

1. The employer asserts that Dr Stewart's report came into existence in circumstances where legal professional privilege attaches to it. I do not understand the worker to submit otherwise.
2. The employer also says that it has done nothing in relation to Dr Stewart's report to suggest that it may have waived the privilege attached to it. Again, I do not understand the worker to take a different position.
3. I infer that the worker likely has a copy of Dr Stewart's report though the requirements under s 90B(3)(a) and (4) the WRC Act that a report following independent medical review of a worker must be served on the worker's primary treating medical practitioner, who in turn must provide a copy of the report to the worker. Since V v Caterpillar Underground Mining Pty Ltd [2015] TASWRCT 44 it has been accepted that neither compliance by an employer or its agent with s 90B (3)(a) of the Act, nor compliance by a worker's general practitioner with s 90B(4) amounts to a waiver of legal professional privilege in relation to report following independent medical review of a worker.
4. I find that legal professional privilege applies to the report of Dr Timothy Stewart dated 14 May 2024, and has not been waived by the report being served on the worker's primary treating medical practitioner in accordance with s 90B(3)(a) of the WRC Act

1. As Dr Stewart's report is privileged, and privilege has not been waived, the only evidence that Dr Stewart might be able to give in the hearing of this matter would be inadmissible.
2. The worker has suggested there may still be a possibility that Dr Stewart would be able to give other evidence if he were to perform another assessment of the worker at the request of the worker's solicitors. This would be highly unlikely. Dr Stewart has been retained by the employer in this case and it would be very surprising if he was to agree to such a request from the worker's solicitors. Hypothetically speaking, if such a thing was to occur, it would be an argument for another day.
3. It is appropriate to set aside the summons issued at the request of the worker directed to Dr Stewart, requiring his attendance at the Tribunal to give evidence.

1. I determined the interlocutory issues as follows:

(a) The employer's application for Dr Alison Drewry to give evidence remotely via audio-visual at the hearing of W/2024/1666 and W/2025/532 is dismissed. Dr Drewry is to attend the hearing to give evidence in person.

(b) Dr Vaidya Bala is permitted to give evidence remotely via audio-visual at the hearing of W/2024/1666 and W/2025/532.

(c) Legal professional privilege applies to the report of Dr Timothy Stewart dated 14 May 2024, and has not been waived by the report being served on the worker's primary treating medical practitioner in accordance with s 90B(3)(a) of the Workers Rehabilitation and Compensation Act 1988.

(d) The summons issued to Dr Timothy Stewart at the request of the worker is set aside.

(e) The parties will be heard on the issue of costs of the applications if necessary.

[1] Citing R v Hove Justices; ex parte Donne [1967] 2 All ER 1253; Witness v Marsden [2000] NSWCA 52, 49 NSWLR 429 at 441-442 [54]- [60]