The respondent submitted that the consequences of adverse findings in these proceedings are grave, and for that reason he seeks disclosure of the material to assist in the preparation of his defence. The respondent further submitted that the principles of procedural fairness, natural justice and good conscience apply and, with the statutory provisions and relevant authorities, require complete and transparent disclosure, subject only to any legitimate claim for privilege or immunity.

The complainant submitted that the terms of the proposed summons were too widely drafted and amounted to fishing. Further, the complainant argued that the material sought for the purpose of assisting in cross-examination on matters of credit was not relevant and it would be oppressive if the complainant was required to investigate matters on behalf of the respondent.

• The Tribunal refused to authorise the issue of a summons to Ahpra for the production of its entire file pursuant to r 75(b)(iii) on the basis that there was nothing to indicate that further relevant material may be held by Ahpra;
• The Tribunal ordered the issue of summons to SAPOL requiring the production of all material compiled in the investigation of the allegations made against the respondent given that it was agreed that the material sought was relevant and there was no good reason to refuse to issue the summons;
• The Tribunal refused the issue of summonses to SAPOL for the production of the offender history reports for the likely witnesses as there was no information before the Tribunal to suggest that they had any relevant offender history;
• The Tribunal authorised the issue of a subpoena to SAPOL seeking disclosure of any offender history for the alleged victim relating to offences where dishonesty is an element as the documents already disclosed suggested she did have some offender history and her credit was of fundamental importance in the matter;
• The Tribunal authorised the issue of summons to the alleged victim's treating general practitioner, Flinders Medical Centre, and Noarlunga Hospital on the basis that it was known that she had been treated for mental illness, and that information about her condition may potentially be relevant to the assessment of her credibility and reliability as a witness. This was ordered with the provision that the excessive breadth of the summons be narrowed to include an appropriate time limitation and the nature of the conditions to which it relates;
• The Tribunal authorised the issue of summons to Anglicare SA of the records relating to counselling provided to the alleged victim in relation to her interaction with the respondent as the material might possibly provide material relevant to her cross-examination.

Health practitioners - Complaint by the Medical Board of Australia - Professional misconduct - unprofessional conduct

Administrative tribunals - Procedure - Statutory Powers - Evidentiary powers - Power to require person to give evidence or to produce evidentiary material - Summons for the production of documents

Evidence Act 1929 (SA) ss 67E, 67F

Health Practitioner Regulation National Law (South Australia) 2010 s 3A

South Australian Civil and Administrative Tribunal Act 2013 ss 3, 8, 39, 40, 43

South Australian Civil and Administrative Tribunal Rules 2014 r 75

ACC v Visy Industries Holdings [2007] FCA 444

Adler v ASIC [2003] NSWCA 131; (2003) 179 FLR 1

ASIC v Mining Projects Group Ltd [2007] FCA 1620; (2007) 164 FCR 32

Australian Securities and Investments Commission v Mining Projects Group Ltd [2007] FCA 1620

Blenkinsop v Wilson [2019] WASC 77

Carter v Hayes (1994) 61 SASR 451

Ceneavenue Pty Ltd v Martin [2008] SASC 332

Clyne v New South Wales Bar Association [1960] HCA 40; (1960) 104 CLR 186

Commissioner of the Australian Federal Police v Magistrates Court of Victoria & Di Pietro [2011] VSC 3

Commissioner of the Australian Federal Police v XYZ (2015) 123 SASR 274

Craig v Medical Board of South Australia [2001] SASC 169; (2001) 79 SASR 545

Fried v National Australia Bank [2000] FCA 911; (2000) 175 ALR 194

Goldsmith v Legal Profession Complaints Committee [2022] WASCA 167

Health Care Complaints Commission v Al-Mozany (No 4) [2023] NSWCATOD 3

Hunt v Judge Russell (1995) 63 SASR 402

K v R [1991] SASC 2997

Medical Board of Australia v Amin (Unreported - SACAT reference no 2020/SHP000006 - Statement of Reasons dated 15 October 2021)

New South Wales Bar Association v Evatt [1968] HCA 20; (1968) 117 CLR 177

Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1

Psychology Board of Australia v Mikhchi [2021] SACAT 26

R v Hanlon [2022] SADC 85

R v Brown [1997] UKHL 33; [1998] AC 367

Thorpe v Chief Constable of Greater Manchester Police [1989] 1 WLR 665

Visy v ACCC [2007] FCAFC 147

This is an edited version of the Tribunal's decision pursuant to s 60 of the South Australian Civil and Administrative Tribunal Act 2013. The parties and participants of the proceedings have been de-identified in accordance with the Tribunal's anonymisation policy. Other facts and details that may lead to the identification of any person may have also been anonymised or omitted. These changes do not affect the Tribunal's decision or its reasons for decision.

1. The respondent, Dr Shah (a pseudonym), has sought by way of an amended interlocutory application dated 8 August 2023 that the Tribunal make orders for production of documents from various third parties. In most instances, that application is opposed by the complainant. For the reasons that follow, I reject one of the proposed summonses and require that others be significantly narrowed if they are to be pursued.

1. The complainant, the Medical Board of Australia, has lodged a complaint in the Tribunal alleging that the respondent was guilty of unprofessional conduct and professional misconduct. The basis for these allegations is that the respondent had allegedly engaged in certain conduct directed at CED, a woman employed as a receptionist at the medical practice where they both worked. The impugned conduct is alleged to constitute sexual harassment and indecent assault. A criminal trespass by the respondent at the home of CED is also alleged. A further allegation is that the respondent improperly gained access to the patient records of a man, PCS, who was or had been in a personal relationship with CED. The respondent was initially charged by South Australia Police (SAPOL) with criminal offences founded on these allegations. However, the proceedings were ultimately discontinued by SAPOL.
2. While there is no direct corroboration of the alleged indecent assaults and trespass, two friends of CED, namely ZAI and FIW, were present during part of the night when the indecent assaults and trespass allegedly occurred.
3. Documentary material produced by the complainant establishes that CED was admitted to the Noarlunga Hospital and subsequently to the Flinders Medical Centre (FMC) very soon after the alleged events. She was detained at the FMC pursuant to an inpatient treatment order under the Mental Health Act 2009. The documentary material also indicates that CED has a prior history of mental illness but the nature of that illness has not been revealed. CED has also been counselled by Anglicare SA in relation to her interaction with the respondent.
4. Documents produced by the respondent also reveal that SAPOL members investigating the allegations made by CED held doubts about her reliability. While their views are merely hearsay, that issue is relevant, as I explain below, to some of the summonses being sought.

1. The respondent seeks in an amended interlocutory application dated 8 August 2023 that the Tribunal issue summonses under s 40 of the South Australian Civil and Administrative Tribunal Act 2013 (the SACAT Act) to:
   1. The Australian Health Practitioner Regulation Agency (Ahpra) for the production of its entire file relating to the investigation of the notification made concerning CED.[1]
   2. At 2(a), (b) and (c) the Commissioner of Police produce to the Tribunal all documents relating to the investigation and prosecution by SAPOL of the respondent. It is also sought at 2(d) that SAPOL should produce offender history reports relating to CED, ZAI and FIW.
   3. That the treating general practitioner of CED produce all medical records in his possession relating to her mental, psychological and/or psychiatric condition and treatment.
   4. That Anglicare SA produce all records relating to counselling provided to CED in relation to her interaction with the respondent.
   5. That the FMC produce all records relating to the mental, psychological and/or psychiatric condition and treatment of CED, including inpatient treatment records.
   6. That the Noarlunga Hospital produce all records to the same effect as those sought from the FMC.
2. During the course of oral submissions, the complainant informed the Tribunal that it accepted that all documents sought at 2(a), (b) and (c) were relevant to the proceedings, being those compiled by SAPOL relating to the investigation of the allegations made by CED against the respondent. The respondent also abandoned a request that SAPOL should be required to produce an offender history report for the potential witness, PCS.

1. I will refer first to the submissions of the respondent as he is the applicant for issue of the summonses.
2. The respondent has reminded the Tribunal that the Guiding Principles set out in s 3A of the Health Practitioner Regulation National Law (South Australia) 2010 (the National Law) provide that the national scheme for the regulation of health practitioners "is to operate in a transparent, accountable, efficient, effective and fair way". The respondent also observes that the complainant is required by its own policy to act as a model litigant. Ahpra policy requires entities acting under the National Law, including the Medical Board, to act honestly and fairly in handling litigation. Thus, the complainant must act with complete propriety, fairly and in accordance with the highest professional standards.
3. The respondent has also observed that s 8 of the SACAT Act requires the Tribunal to promote the best principles of public administration including natural justice and procedural fairness and to be flexible in the way in which it conducts its business and to adjust its procedures to best fit the circumstances of a particular case or jurisdiction. Furthermore, s 39 provides that the Tribunal is not bound by the rules of evidence, may inform itself as it sees fit and must disregard legal technicalities in favour of merit. Furthermore, s 43(2)(a) of the SACAT Act requires the Tribunal to take all practicable steps to ensure that all relevant material is disclosed to it so as to enable it to determine all the relevant facts in issue in any proceedings.
4. Section 40 of the SACAT Act empowers the Tribunal to issue a summons. The power to do so is discretionary. Rule 75(b) of the SACAT Rules provides that the Registrar may refuse to issue a summons if she considers that the evidence being sought would not be relevant to the proceedings or the evidence sought under the summons would not be appropriately provided by the person named therein or if there is good reason to refuse.
5. The respondent contended that the principles of the criminal law are apposite having regard to the potentially very serious consequences of these proceedings upon him. An adverse finding may lead to loss of his livelihood and his right to remain in Australia, may affect the disposition of civil proceedings and, potentially, may result in the resurrection of the discontinued criminal proceedings.
6. The respondent referred to the summary of the relevant principles that should be applied in determining whether a party is entitled to access documents that are the subject of a subpoena contained in the judgment of J Forrest J in Commissioner of the Australian Federal Police v Magistrates Court of Victoria & Di Pietro.[2] In my former capacity as a judge of the Supreme Court, I applied the principles as explained by J Forrest J in Commissioner of the Australian Federal Police v XYZ.[3]
7. The respondent also submitted that it is commonplace in criminal proceedings for the defence to apply for issue of a subpoena to obtain material to assist in the cross-examination of prosecution witnesses. That is a legitimate forensic purpose and is the purpose for which the summonses are sought in this matter.
8. The respondent further submitted that there is nothing in the SACAT Act or Rules that provides for the making of objections prior to the issue of a summons. Whether or not a summons should be issued is a matter for SACAT to determine in light of r 75 and s 40 and the considerations summarised by J Forrest J.
9. In summary, the respondent submitted that the consequences of adverse findings in these proceedings are grave and for that reason he seeks disclosure of material to assist in the preparation of his defence. The principles of procedural fairness, natural justice and good conscience apply, and together with the statutory provisions and the relevant judicial authorities, require complete and transparent disclosure, subject only to any legitimate claim for privilege or immunity.

1. The complainant submitted that it is apparent from r 75 that the application for a summons should be refused by the Tribunal to the extent that the evidential material that is being sought is not relevant. Although the respondent has reserved his final response pending the provision of further particulars or disclosure, the Tribunal is able to determine relevance by reference to the complaint.
2. The complainant submitted that the contention by the respondent that principles drawn from the criminal law are "apposite" is clearly inconsistent with both Tribunal authority and also decisions of the Supreme Court relating to disciplinary proceedings. Proceedings under the National Law are public protection proceedings[4] and are sui generis. Accordingly, different considerations apply to those governing criminal proceedings. Recently in Medical Board of Australia v Amin[5] after referring to a decision of the Federal Court in Australian Securities and Investments Commission v Mining Projects Group Ltd[6], Senior Member Stevens held that a regulatory authority which brings disciplinary proceedings does not have the same duties as a prosecutor in criminal proceedings. A National Board, such as the Medical Board, acting under the National Law does not have the same disclosure obligations as a criminal prosecutor.[7]
3. The complainant further submitted that even if a prosecutorial duty did arise due to a loose analogy with criminal proceedings, the present application does not satisfy the principles explained by J Forrest J. The forensic purpose upon which the respondent relies is to assist in the cross-examination of prosecution witnesses and to assist the preparation of his defence. However, the complainant submitted that the respondent has failed to identify how it is "on the cards" that the material he seeks will be of material assistance. Moreover, the complainant also submitted that it is not part of the duty of a prosecutor to conduct an investigation on behalf of a defendant.
4. Nevertheless, the complainant acknowledged that if there is material in the possession of a prosecutor or that is within its ability to obtain that is relevant to the credibility and reliability of witnesses, that material should be disclosed. However, as King CJ observed in K v R the burden on the prosecutor to enquire into such matters is limited.[8] In this instance the respondent is effectively asking the complainant to conduct investigations on his behalf and to "fish" for material that may assist in cross-examination. Most of the material being sought by the respondent falls into this category and is neither analogous to the prosecutorial duty of disclosure nor is there a proper or legitimate forensic purpose.
5. The complainant also submitted that the terms of the proposed summons are too widely drafted and amount to fishing. No evidence has been put forward as to the actual existence of documents that would satisfy the principles summarised by J Forrest J.
6. The respondent also submitted that a document that is sought only to assist in cross-examination on matters of credit is not relevant for the purposes of discovery.[9] It would be oppressive if the complainant was to be required to investigate matters which are not part of its case and would amount to the investigation of matters on behalf of the respondent.

1. Rule 75(b) provides that the Tribunal may refuse to issue one or more of the proposed summonses if it considers that:
   1. The evidence being sought under the summons would not be relevant to the proceedings; or
   2. The evidence being sought would not be appropriately provided by the person named in the summons; or
   3. There is good reason to do so.
2. There is nothing on the face of the proposed summonses to indicate that the evidence being sought would not be appropriately provided by the person named therein. However, although the content of documents held by the FMC, the Noarlunga Hospital, Anglicare SA and by CED's treating GP is presently unknown, there is a real likelihood that at least some of that material may be subject to public interest immunity under s 67E of the Evidence Act 1929 (SA) if it reveals communications in a therapeutic context relating to CED being the alleged victim of sexual offences. If summonses were to be issued in those instances the potential application of s 67E (and also s 67F) of the Evidence Act would need to be addressed by the recipient. The recipients should be informed of the matters referred to in r 75(a) and, in particular, the matters referred to in r 75(a)(iii) The latter provides that the recipient of a summons has a right to apply for an order setting it aside in whole or in part and may possibly be entitled to make a claim for privilege, public interest immunity, other immunity or confidentiality and also seek an order that the issuing party pay reasonable costs incurred in complying with the summons.
3. The complainant provided copies of 16 superior court and tribunal decisions that were said to support its submissions. It is necessary to examine closely several of those judgments.
4. The subject matter of the proceedings before the English Court of Appeal in Thorpe v Chief Constable was a civil action for damages against police alleging assault, false imprisonment and malicious prosecution.[10] This was said to have occurred in the context of a demonstration. The plaintiff sought documents relating to any criminal or disciplinary proceedings against the officers who had allegedly engaged in the impugned conduct. Dillon LJ held that the court should not order discovery on matters which would go solely to cross-examination as to credit. If that were to be required, it "would indeed be an impossible situation".[11] Neill LJ observed that there might appear to be some force in an argument that documents which may contain material to impugn the credit of a party might enable the other party to advance his case. His Lordship also noted that fairness might be thought to require production of documents relating to the character of the relevant police officers that may be in the hands of the defendant. However, Neill LJ rejected those two lines of reasoning on the basis of longstanding practice. His Lordship stated that "discovery in an action would become gravely oppressive and time-consuming if there were an obligation on a party to disclose any document which might provide material for cross-examination as to his creditworthiness as a witness. The present practice is a salutary one which helps to keep discovery within reasonable and sensible bounds". [12] Mustill LJ agreed with both Dillon LJ and Neill LJ.
5. The issue before the House of Lords in R v Brown[13] was whether a conviction was unsafe because of the failure of the prosecution to disclose evidence damaging the credit of two alibi witnesses called by the defendant. The House held that the common law principles regarding disclosure of material by the prosecution were based on fairness and the principle of open justice. It would be contrary to that principle for the prosecution to withhold material that might undermine the prosecution case or assist the defence. Material that might assist the defence case must be distinguished from material that related only to the credibility of defence witnesses. Fairness did not require that defence witnesses should be immune from challenge as to their credibility or that the prosecution should assist the defendant in selecting witnesses. Accordingly, the prosecution was not under a duty at common law to disclose material that was relevant only to the credibility of a defence witness. Nevertheless, Lord Hope of Craighead (with the other four members of the House agreeing) noted that there are cases "where the question of credibility is so intimately bound up with the facts that the two cannot reasonably be separated". His Lordship also observed that for this reason "it is not possible to say that material relating to the credibility of defence witnesses will always be distinguishable from the issues of fact relating to the defendant's guilt or innocence".[14] I regard these observations by Lord Hope as relevant to the present matter.
6. In Visy v ACCC Lander J in the Full Court of the Federal Court held (with Moore and Weinberg JJ agreeing) that in civil proceedings it is the pleadings which inform the parties as to the discovery which must be made. The documents sought by the defendant did not relate to a fact in issue but only to the question of the credit of an unknown witness.[15] Weinberg J, while agreeing with Lander J, also added that although the documents in question were not discoverable, they might possibly be obtained by issue of a subpoena.
7. Weinberg J supported that observation by reference to his own judgment in Fried v National Australia Bank.[16] Weinberg J stated: "that it may be legitimate to issue a subpoena directed to a third party in order to obtain documents which are to be used solely to impeach the credit of a witness". His Honour cited several authorities in support of that proposition, including the judgement of the Supreme Court of South Australia in Hunt v Judge Russell.[17]
8. However, Weinberg J also noted that there was some authority which cast doubt on whether a subpoena may be issued solely for the purpose of impugning the credit of a witness. Weinberg J concluded "that the Court should exercise particular caution in permitting the use of subpoenas in order to obtain documents of this type".
9. The parties did not refer in their submissions to the decision of the Full Court of the Supreme Court in Carter v Hayes.[18] In that case King CJ (with Bollen and Mullighan JJ agreeing) held that:[19]

A document may have evidential value, in my opinion, not only because it is admissible in evidence but also, even if it is not so admissible of itself, because it provides material of value for cross-examination ...

A party's lack of knowledge of the existence or contents of a document is not, of itself, however, a valid objection to a subpoena.

However, in Hunt v Judge Russell, Perry J observed that lack of knowledge of the existence or contents of a document will be a relevant consideration when determining whether the application amounts to "fishing".[21]

1. While Carter v Hayes was a criminal matter, the statutory power for the Magistrates Court to issue a subpoena related to "evidentiary material". That term was defined to mean "any document ... of evidentiary value".[22] The same words are used in s 40 and s 3(1) of the SACAT Act respectively. I do not consider the fact that the Full Court was considering criminal proceedings, and this is a civil matter, affects the meaning of the words used in the statutes. For that reason, I consider that I am bound by the decision of the Full Court in Carter v Hayes. Thus, I do not follow the decision of the House of Lords in Thorpe v Chief Constable. However, as I have already noted, I regard the concluding observations by Lord Hope in R v Brown concerning the difficulty, at least in some instances, in distinguishing matters of fact and credit as being relevant to the present matter.
2. In Carter v Hayes, King CJ also distinguished the obligation to make discovery from a request to produce documents in response to a subpoena.[23] His Honour stated that a party who is obliged to make discovery must disclose all relevant documents, whether or not they have evidentiary value. That party must make a judgment as to relevance. In contrast, a subpoena demands production of documents which are identified specifically or generically. That distinction is relevant here because, with the exception of the Ahpra file, all other documents sought by the respondent are in the hands of third parties. Ahpra contends that it has already disclosed all relevant documents that it holds.
3. King CJ held in K v R that while the prosecution must disclose any prior convictions of its witnesses, and also any information which may materially affect their credibility, the obligation of the prosecution to seek out information that may potentially affect the credibility of a prosecution witness is limited.[24] Even if the investigating police had been aware of the particular information, it was vague and tenuous and no injustice occurred from failure to pursue the matter.
4. I turn to the decision of the Western Australian Court of Appeal in Goldsmith v Legal Profession Complaints Committee.[25] The respondent was a solicitor whom the LPCC had found guilty of professional misconduct and unsatisfactory professional conduct. A crucial issue in the proceedings was the content of a telephone call between the solicitor and counsel. The LPCC had accepted that the credibility of counsel was a key issue and that documents which bore on his credibility ought, generally, to be disclosed. However, the LPCC contended that a medical report concerning the mental health of counsel was not relevant as there was nothing in the report to suggest that his condition could reasonably be regarded as adversely affecting his credibility or reliability.
5. The Court of Appeal noted the ultimate question in the proceedings, which might be raised by an amended ground of appeal, was whether the solicitor was denied procedural fairness in the disciplinary proceedings by not having access to the medical report. However, that issue was not yet before the Court. The Court concluded that the apparent content of the medical report (which the Court had not seen) was sufficient to disclose a plausible basis for contending that it may have been relevant to the credibility or reliability of the witness. It was therefore in the interests of justice for it to be disclosed to the solicitor for the purpose of him considering an application to amend his grounds of appeal.
6. The complainant has included in its book of authorities the decision of Senior Member Stevens in Psychology Board of Australia v Mikhchi.[26] That was a disciplinary proceeding where it was alleged that the respondent had engaged in sexualised physical contact with a patient without her consent. The respondent sought the issue of summonses to medical practitioners who had apparently treated the patient. There was clear evidence suggesting that the patient had suffered at relevant times from depression and anxiety and a lack of assertiveness. The respondent stated that the forensic purpose in seeking issue of the summonses was that they may reveal evidence of alternative mental health conditions which may reflect on her credibility or reliability as a witness. In particular, it was suggested that there may be evidence to support a theory that her allegations may have been the product of a "dissociative episode". The respondent already had substantial information concerning the mental health of the patient but none of that material suggested that the documents now being sought were likely to reveal any other relevant psychological disorder or mental health condition.
7. Senior Member Stevens held that the requested summonses were essentially fishing exercises. The Tribunal was required to carry out a balancing exercise. There was a public interest in patients coming forward with information about alleged professional misconduct and being prepared to give evidence before the Tribunal. Many patients might be discouraged by the fear that their confidential medical records (particularly those relating to mental health) would be provided to the alleged perpetrator and used to attack their credibility. Senior Member Stevens held that there was a public interest in maintaining the confidentiality of such records but also a public interest in securing a fair hearing for the respondent. In some cases, there will be a compelling reason for requiring production of medical records and this may outweigh the concern for confidentiality. However, on balance, he did not consider that the issue of a summons was necessary or appropriate given what was known about the mental health of the patient.
8. For completeness, I deal with two further matters. The appeal before the New South Wales Court of Appeal in Adler v ASIC concerned civil proceedings under the Corporations Act 2001 (Cth).[27] Contraventions of the Act were alleged by ASIC. The remedies sought were compensation, pecuniary penalties and the disqualification of persons from managing corporations for significant periods. While the proceedings were civil, they were disciplinary in nature and involved serious allegations of misconduct. ASIC accepted that it was required to act fairly but contended that it had done so.
9. In the present matter the respondent has submitted that because of the potentially very serious consequences, the complainant is under a duty in these proceedings that is akin to that of a prosecutor in criminal proceedings. However, the Court of Appeal specifically rejected that proposition in Adler v ASIC.[28]
10. In ASIC v Mining Projects Group Ltd Finkelstein J held that if the matter were at large he would have held that a regulatory body that brings a civil proceeding is under an obligation similar to that owed by a criminal prosecutor.[29] However, his Honour held that the matter was not at large and he followed the decision of the NSW Court of Appeal in Adler v ASIC. As I have already noted, this line of authority was adopted and applied by Senior Member Stevens in Medical Board of Australia v Amin [30] where he followed the later Federal Court decision to the same effect in ASIC v Mining Projects Group Ltd.[31]
11. The respondent has also contended that because the complainant is subject to the obligations of a model litigant the documents sought in the proposed subpoenas should be produced. That contention was specifically rejected by Heerey J in ACCC v Visy Industries Holdings. [32] His Honour held that documents are either discoverable or not in accordance with the law relating to discovery and legal professional privilege and "that law confers rights on all litigants, whether they are model ones or not".[33] While I am not bound by the decision of Heerey J, I consider it to be plainly correct. Moreover, as I have already noted, with the exception of the request for production of the entire Ahpra file, the documents being sought are in the hand of third parties rather than the complainant or Ahpra.
12. In light of the authorities to which I have discussed, I find that the complainant is not subject to the same duties of disclosure as a prosecutor in criminal proceedings. Even if it were so subject, that would not change its obligations in respect of the documents sought in the proposed subpoenas. That position is not affected by the obligations of the complainant and Ahpra as model litigants.
13. I also consider to be highly relevant the following statement by McHugh J in Palmer v The Queen:[34]

The line between evidence relevant to credit and evidence relevant to a fact‑in-issue is often indistinct and unhelpful. The probability of testimonial evidence being true cannot be isolated from the credibility of the witness who gives that evidence except in those cases where other evidence confirms its truth either wholly or partly. Furthermore, the conclusions drawn from that evidence are necessarily dependent on the credibility of the deponent. Zuckerman has correctly described the distinction between evidence as to the credibility of witnesses and evidence as to facts-in-issue as productive of absurdity. Indeed, in some cases, the credibility of a witness may be of such crucial importance that it is decisive of the facts-in-issue, particularly where, as in the present case, the witness is a participant in the very facts-in-issue or the only eyewitness to them.

14. While in Goldsmith the WA Court of Appeal did not refer to the observations made by McHugh J in Palmer (or, for that matter, the similar observation by Lord Hope in R v Brown) such an analysis is implicit in the finding that a report concerning the mental health of a witness who is the only other party to a conversation where the respondent was alleged to have behaved improperly must be disclosed to the respondent in the interests of justice.
15. Although Senior Member Stevens declined in Psychology Board of Australia v Mikhchi to order the issue of summonses for production of documents from medical practitioners that might possibly be relevant to cross-examination of an alleged victim of sexual misconduct, Mr Stevens made that decision on the basis that the information available about the mental health of the witness suggested that the material was not relevant to the assessment of her credibility or reliability.
16. As I have previously noted, r 75(b)(iii) provides that the Tribunal may refuse to issue a summons if it is considered that there is good reason to do so. In deciding that question it is appropriate to apply the principles stated by J Forrest J in Di Pietro. Those principles are:

The following principles apply in determining whether a party is entitled to access documents the subject of a subpoena:

(a) it is necessary for the party at whose request the witness summons was issued to identify expressly and precisely the legitimate forensic purpose for which access to the documents is sought;

(b) the identification of such a legitimate forensic purpose is to be considered by the court without inspecting the documents sought to be produced;

(c) the applicant for the witness summons must also satisfy the court that it is "on the cards", or that there is a "reasonable possibility", that the documents sought under the subpoena "will materially assist the defence".

(d) a "fishing expedition" is not a legitimate forensic purpose and will not be permitted;

(e) the relevance of a document to the proceeding alone will not substantiate an assertion of legitimate forensic purpose. There is no legitimate forensic purpose if the party is seeking to obtain documents to see whether they may be of relevance or of assistance in his or her defence.

(f) a mere assertion of bad faith by an applicant or that something might be found demonstrating bad faith is not enough - the criteria set out in (c) must be satisfied.

(g) in criminal proceedings a "more liberal" view is taken by a court in respect of the application of the test. Special weight is to be given to the fact that the documents may assist the defence of the accused.

(h) where a party fails to demonstrate a legitimate forensic purpose, the court should refuse access to the documents and set aside the witness summons.

(Citations Omitted)

1. The principles I have referred to above must be applied in determining whether to issue the various summonses sought by the respondent.

1. The respondent seeks issue of a summons to Ahpra to produce the entire contents of its file relating to the investigation of the alleged conduct of the respondent concerning CED. The complainant has informed the Tribunal that all relevant documents held on the Ahpra file have already been disclosed to the respondent. I have also been informed that, although incomplete discovery was provided at an earlier stage in these proceedings, the failure was subsequently rectified.
2. The complainant submits that the proposed summons is, in effect, an application for further and better discovery. White J held in Ceneavenue Pty Ltd v Martin that it is to be presumed that a party has complied with its discovery obligations unless a party seeking further and better disclosure persuades the court that there is a reasonable basis for doubting that the disclosure that has been made is adequate. This will require a degree of satisfaction going beyond the mere possibility that the disclosure is inadequate.[35]
3. While the analysis by White J in Ceneavenue was based on a particular provision in the Supreme Court Rules, I consider the approach adopted by his Honour to be of general application. Moreover, in the absence of any current indication of incomplete discovery, the application for production of the entire Ahpra file is simply fishing. By that I mean there is nothing to indicate that further relevant material may be held by Ahpra. The respondent is simply hunting to see if something relevant may have been overlooked. I consider that there is good reason in terms of r 75(b)(iii) to decline to order the issue of a summons in the terms sought in paragraph 1 of the amended interlocutory application dated 8 August 2023.

1. The complainant has conceded that the proposed summons to SAPOL seeking all material compiled in the investigation of the allegations made by CED against the respondent is relevant. In light of that concession and, as there is no good reason to refuse to issue the summons, I will order that a summons be issued under s 40 of the SACAT Act requiring the production of the documents listed in sub-paragraphs 2(a), (b) and (c) of the amended interlocutory application.
2. The complainant has opposed the making of an order requiring that offender history reports for the witnesses CED, ZAI and FIW should be produced. As previously noted, the respondent no longer seeks production of an offender history report for PCS.
3. There is no information before the Tribunal that suggests that the likely witnesses ZAI and FIW have any relevant offender history. Thus, I am not satisfied that it is "on the cards" or that there is a "reasonable possibility" that the documents being sought "will materially assist the defence". In these circumstances, I consider that the request for the criminal histories of ZAI and FIW amounts to impermissible fishing. I refuse to issue a summons seeking any offender histories for ZAI or FIW.
4. The position relating to CED is materially different. The documents that have already been disclosed, suggest that she does have some offender history. She has stated that she has an alcohol interlock device fitted to her car. I infer that this device would have been fitted following a conviction for a high blood alcohol drink driving offence or perhaps a history of such offences. CED has also admitted that on the night that the relevant events are said to have occurred, she had consumed an amount of alcohol that might potentially be relevant to the assessment of her reliability as a witness. It has also been suggested that she was also taking Valium while consuming alcohol. While this might possibility affect the assessment of her credit, I am not persuaded that a history of drink driving offences is relevant. I do not think that such a history takes the issue any further than her admitted consumption of alcohol on the particular night.
5. The documents also establish that CED may have been convicted in relation to her conduct while in custody at a police station. I am also not persuaded that such conduct is relevant to the assessment of her credibility or reliability.
6. The complainant submits that any summons for production of documents relating to the offender history of CED should not extend beyond disclosure of offences involving dishonesty. There is no information before the Tribunal to indicate that CED has a police history other than in respect of drink driving and a behavioural offence. However, because of the serious allegations involving one on one conduct between CED and the respondent with no other direct witnesses, the credit of CED is of fundamental importance in the sense observed by McHugh J in Palmer, by Lord Hope in R v Brown and implicitly by the WA Court of Appeal in Goldsmith. Thus, on balance, and not without some hesitation, I will authorise the issue of a subpoena to SAPOL seeking disclosure of any offender history for CED relating to offences where dishonesty is an element.

1. In paragraph 3 of the amended application the respondent seeks a summons for production by the treating general practitioner of CED of medical records relating to her mental, psychological and/or psychiatric condition and treatment. The complainant submits that this application is too broadly expressed. Senior counsel for the complainant submitted that as presently expressed the proposed summons would cover documents relating to, for example, post-natal depression, a condition that would not be relevant to the assessment of credit. I also observed during the course of submissions that post traumatic stress disorder after an accident would be covered as the application is presently drafted but again would appear to have little relevance to the credibility or reliability of a witness. Senior counsel also contended that if a summons is to be issued it should be limited in time. Successful treatment of a psychiatric condition, say, five or ten years ago may not be relevant to these proceedings. There is also a possibility that some of the material being sought may fall within s 67E of the Evidence Act.
2. As it is known that CED has been treated for mental illness, and given the views apparently held by investigating police, I consider, on balance, that information about that condition may potentially be relevant to the assessment of her credibility and reliability as a witness. However, I agree with the submissions by the complainant that paragraph 3 of the application is unnecessarily broad. If the respondent intends to persist in seeking this material, the summons must be narrowed to include an appropriate time limitation. It should also express more specifically the nature of the mental, psychological and/or psychiatric conditions to which it relates. While the drafting is a matter for the respondent, it may be that the simplest approach would be to exclude particular categories of mental condition. The summons should provide to the GP the information referred to in r 75(a). That is because I am concerned that he may not be aware of the possible application of s 67E of the Evidence Act.

1. The respondent seeks the production by Anglicare SA of all records relating to counselling provided to CED in relation to her interaction with him. It is known that CED did receive counselling from Anglicare following the alleged conduct of the respondent towards her. It is therefore "on the cards" that the information that CED provided to Anglicare might possibly provide material relevant to her cross-examination. I am therefore satisfied that the request does not amount to fishing. However, it seems very likely that the material being sought may fall within s 67E of the Evidence Act. For that reason, the summons should provide to Anglicare the information referred to in r 75(a). The operation of s 67E, and also s 67F, may possibly need to be dealt with at a later hearing.

Production by the FMC and the Noarlunga Hospital of records relating to the treatment of CED for mental health conditions

1. Paragraphs 5 and 6 of the application seek production by the FMC and the Noarlunga Hospital respectively of all records relating to the mental, psychological and/or psychiatric condition and treatment of CED, including inpatient treatment. These requests raise the same issues as I have already discussed in relation to the production of the treatment records held by the GP. The terms of the proposed summonses must be revised by the respondent to address the issue of excessive breadth that I have referred to above. Once again, any summons that may be issued will need to inform the recipient of the matters referred to in r 75(a). That is particularly important given the real likelihood that s 67E of the Evidence Act may apply. In that respect I note that the Tribunal has been informed that documents were previously provided by the FMC to Ahpra without regard to the potential application of s 67E. However, the Tribunal has been informed that the documents were promptly returned by Ahpra and its legal representatives.

1. In light of the preceding reasons, I will make orders to the following effect:
   1. I refuse to authorise issue of a summons to Ahpra for production of its entire file as sought in paragraph 1 of the amended interlocutory application dated 8 August 2023;
   2. A summons may be issued to SAPOL in terms of sub-paragraphs 2(a), 2(b) and 2(c) of the amended interlocutory application;
   3. A summons may be issued to SAPOL pursuant to sub-paragraph 2(d)(i) of the amended interlocutory application for production of the offender history of CED but only in so far as the summons is limited to disclosure of offences involving any element of dishonesty.
   4. I refuse to authorise issue of summonses to SAPOL for the production of the offender history reports for the likely witnesses ZAI and FIW as sought in sub-paragraph 2(d)(ii) and (iii) of the amended interlocutory application.
   5. A summons may be issued to Anglicare SA for counselling records relating to interaction by CED with the respondent. That summons must inform the recipient of the matters referred to in r 75(a).
   6. Summonses may only be issued to the treating GP of CED and also to the FMC and Noarlunga Hospital as respectively sought in paragraphs 3, 5 and 6 of the amended interlocutory application if such summonses are revised so as to deal with the concern I have expressed in my reasons about their excessive breadth. The summonses must inform the recipients of the matters referred to in r 75(a).
2. I will hear the parties as to the timing of a further directions hearing.

[1] While the Medical Board of Australia is the complainant, an affidavit discloses that it does not hold a file or documents. Ahpra acts as the investigator and prosecutor pursuant to the scheme under the National Law.

[2] [2011] VSC 3.

[3] (2015) 123 SASR 274. Written submissions prepared on behalf of the respondent noted that the principles summarised by J Forrest J and applied by me had been adopted by Judge Heffernan in R v Hanlon [2022] SADC 85 at [74].

[4] Clyne v New South Wales Bar Association [1960] HCA 40; (1960) 104 CLR 186 at 201-202; New South Wales Bar Association v Evatt [1968] HCA 20; (1968) 117 CLR 177 at 183-184 and Craig v Medical Board of South Australia [2001] SASC 169; (2001) 79 SASR 545, Doyle CJ at [43] and [47].

[5] Unreported but SACAT reference no 2020/SHP000006 - Statement of Reasons dated 15 October 2021.

[6] [2007] FCA 1620 at [34].

[7] Health Care Complaints Commission v Al-Mozany (No 4) [2023] NSWCATOD 3 at [156]- [168].

[8] [1991] SASC 2997 at [20] to [22].

[9] Thorpe v Chief Constable of Greater Manchester Police [1989] 1 WLR 665 at 672-673.

[10] [1989] 1 WLR 665.

[13] [1997] UKHL 33; [1998] AC 367.

[14] The principles in R v Brown were applied by Corboy J of the Supreme Court of Western Australia in Blenkinsop v Wilson [2019] WASC 77.

[15] [2007] FCAFC 147 at [102] to [105].

[16] [2000] FCA 911; (2000) 175 ALR 194 at [24] to [30].

[17] (1995) 63 SASR 402 at 410.

[18] (1994) 61 SASR 451.

[21] (1995) 63 SASR 402 at 412.

[22] (1994) 61 SASR 451 at [4].

[24] [1991] SASC 2997 at [20] to [22], with Cox and Debelle JJ agreeing.

[25] [2022] WASCA 167.

[26] [2021] SACAT 26.

[27] (2003) 179 FLR 1; [2003] NSWCA 131.

[28] Ibid, at [677] to [680], Giles JA with Mason P and Beazley JA agreeing.

[29] [2007] FCA 1620; (2007) 164 FCR 32 at [33] and [34].

[30] SACAT No 2020/SHP000006 - Statement of Reasons dated 15 October 2021.

[31] [2007] FCA 1620 at [34].

[32] [2007] FCA 444.

[34] [1998] HCA 2; (1998) 193 CLR 1 at 22.

[35] [2008] SASC 332 at 11.