Principles relating to the validity of a summons

1. It is well established that the test for determining the validity of a subpoena issued in civil proceedings is apparent relevance. The test on an application for a summons to issue from the Tribunal is the same.
2. A summons issued, or sought to be issued, other than for a legitimate forensic purpose may be set aside as an abuse of process, including where it is used for the purpose of obtaining discovery or further discovery against a party, where compliance would be oppressive, or if the summons is for the purpose of fishing: Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 [45]. In Fastbet Investments Pty Ltd v Deputy Commissioner of Taxation (No 2) [2018] FCA 1418 at [16] Derrington J noted:

16. The legitimate forensic use of a subpoena is for the production of documents to enhance the hearing of matters. They are, generally, returnable at a hearing so that the documents can be used for the purposes of that hearing. In general they are not to be used as sequential applications or steps for the obtaining of particular documents.

1. The onus of establishing apparent relevance rests with the issuing party: Secretary of the Department of Planning, Industry and Environment v Blacktown City Council (supra) [73]. In Brocklands Pty Ltd v Tasmanian Networks Pty Ltd [2017] TASSC 58 at [7] Blow CJ said:

7. The subpoena should be set aside unless the defendant is able to "identify expressly and precisely the legitimate forensic purpose for which access to documents is sought": Principal Registrar of the Supreme Court of New South Wales v Tastan (1994) 75 A Crim R 498 at 504; R v Turner (No 5) [2001] TASSC 60 at [8]. It is sufficient if the material sought has an apparent relevance to the issues in the proceedings, in the sense that it could possibly throw light on the issues: Trade Practices Commission v Arnotts Limited [1989] FCA 248; (1989) 88 ALR 90 at 102-103.

1. In Secretary of the Department of Planning, Industry and Environment v Blacktown City Council (supra) at [63]-[66] Bell P explained that establishing apparent relevance does not require the issuing party to establish relevance to the extent that the material sought actually will or is likely to assist that party's case. In Comcare v Maganga [2008] FCA 285 at [37] Bennett J said of apparent relevance (his Honour's emphasis):

A party seeking to inspect documents does not need to establish, on the basis of probabilities, that the documents will establish anything (Trade Practices Commission v Arnotts (No 2) [1989] FCA 248; (1989) 21 FCR 306 per Beaumont J; Telstra Corporation at [47], [52] per Graham J). Rather, the test of relevance is whether the documents relate to the proceedings such that there is a real possibility that they may assist in the resolution of issues in the proceedings (Waind per Moffitt P at 384; Bailey v Beagle Management Pty Ltd [2001] FCA 60; (2001) 105 FCR 136 at [26]).

2. Invalidity of part of a summons will not necessarily be fatal to the entire summons, and a summons may be set aside in part only: for example see Roberts-Smith v Fairfax Media Publications Pty Ltd [2025] FCA 414.

1. The employer submitted that the summonses amounted to fishing. The worker took particular umbrage at that contention. It is a submission that is commonly made in respect to subpoenas and summonses. In Brocklands Pty Ltd v Tasmanian Networks Pty Ltd (supra) at [16] Blow CJ said:

16. A party is not entitled to use a subpoena for the production of documents for the purpose of "fishing". That term was defined by Jordan CJ in Commissioner for Railways v Small [1938] NSWStRp 29; (1938) 38 SR (NSW) 564 at 575 as "endeavouring, not to obtain evidence to support his case, but to discover whether he has a case at all".

1. In Roberts-Smith v Fairfax Media Publications Pty Ltd (supra) at [11] Perram J described the prohibition of fishing expeditions in terms that "the machinery of subpoenas is not to be utilised to find out facts, matters or circumstances which might enable a party to advance a case of which it has no present knowledge".

1. The employer raised issues of legal professional privilege. In Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49 at [9] Gleeson CJ, Gaudron, Gummow and Hayne JJ described the privilege in the following terms (footnotes omitted):

9. It is now settled that legal professional privilege is a rule of substantive law which may be availed of by a person to resist the giving of information or the production of documents which would reveal communications between a client and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings. It may here be noted that the "dominant purpose" test for legal professional privilege was recently adopted by this Court in Esso Australia Resources Ltd v Federal Commissioner of Taxation in place of the "sole purpose" test which had been applied following the decision in Grant v Downs.

2. The party claiming privilege bears the onus of proving the factual basis for that claim. However, where communications take place between a client and an independent legal advisor it may be assumed that legitimate legal advice was being sought, absent any contrary indications: Zantran Pty Limited v Crown Resorts Limited (No.2) [2020] FCA 1024 at [65].

1. The summonses were filed by the worker for the purposes of the hearing of the interlocutory application. However, the worker's submissions were wide ranging and at times he treated the summonses as if they were for the purposes of the substantive issue on the s 42 referral. Accordingly, I will approach them in that context to ensure that my consideration is not unreasonably narrowed.
2. It is useful, therefore, to briefly refer to the broad issues arising on the s 60(2) application and the s 42 referral.
3. The issues arising in respect to the application for interim orders are whether there is a serious question to be tried between the parties, and if so whether the balance of convenience favours the making of an interim order for the payment of compensation: for example, see THN v Dark Lab Pty Ltd [2025] TASCAT 138 [11]-[12].
4. The issues generally on the s 42 referral are whether the worker has suffered an injury arising out of or in the course of his employment within the meaning in s 25 of the WRC Act and, if so, whether that injury has resulted in incapacity, such that weekly payments should be made to the worker under Div 1 of Pt VI of the Act, and whether the worker is entitled to the payment of medical and other expense under Div 2 of Pt VI.
5. The worker carries the onus in both matters: s 49(2)(a) WRC Act.

1. The summons directed to the employer's practitioner is in the following terms:

The applicant seeks the issue of a summons requiring the; > > A. Instructions and Authority > > Any written or electronic instructions received from Allianz Australia Insurance Limited relating to: > > o The opposition to the issue of summonses in this proceeding; > > o The relevance of the evidence sought from Rebecca M and Gillian T; > > o Any decision not to file sworn evidence in response to the Applicant's application. > > B. Communications > > 2. All correspondence (including emails, memoranda, or file notes) between you and Allianz Australia Insurance Limited between 1 December 2025 and present that refer to: > > • The Applicant's 42a application listed for January 2026; > > • The proposed or issued summonses; > > • Whether Allianz staff would give evidence or be made available for cross-examination. > > C. Objection Basis > > 3. Any documents relied upon to support the assertion that the proposed summonses are: > > • Irrelevant; > > • Oppressive; or > > • Unsuitable for an interim application. > > D. Witness Identification > > 4. Any document identifying the full names, roles, and employment positions of Allianz personnel referred to in correspondence as "Rebecca" and "Gillian" who have had involvement in decisions relevant to the Applicant's claim. > > 5. Evidence of whom the male legal counsel for Corestaff is, why he hasn't been added to the matter formally by way of notice of appearance with Tascat. > > 6. Evidence that said male counsel has been instructed and a copy of any engagement material that supports such an appointment in the absence of the correct lawful procedure being ignored in the matter W/1787/2025. > > NOTES > > • This summons is limited to matters directly raised by the Respondent's objection to the issue of summonses and is sought for the purpose of assisting the Tribunal in determining scope, relevance, and procedural fairness. > > • The Applicant is self-represented. > > • Production may be by electronic means unless otherwise directed. > > The proposed witness has direct knowledge of, or responsibility for, these matters. The evidence cannot be adequately obtained from documents alone and is necessary to ensure procedural fairness in a defended interlocutory hearing, when requests for disclosure have not been appropriately responded too and where it's likely material has or has not been presented before this tribunal for the purpose of strategic advantage and claims of counsel for the employer that doesn't exist, which when referenced by [the employer's practitioner] in open correspondence to the Tribunal and Applicant has on multiple occasions dodged or attempted to answer questions regarding such appointment in a procedurally fair and open manner.

2. The employer submitted that issuing a summons to the employer's practitioner would be an abuse of process. However, a practitioner for an opposing party may be subject to a summons in appropriate circumstances: for an example see Roberts-Smith v Fairfax Media Publications Pty Ltd (supra).
3. The summons appears to arise from a mistaken view held by the worker that the employer was obliged to provide evidentiary material for the purposes of the interlocutory hearings in respect to the summonses and interim orders, and that if the employer did not do so the Tribunal would lack an evidentiary basis to determine the applications. That ignores the onus, which lies with the worker. If the employer chooses not to file and rely on evidence then it assumes any forensic risk that ensues, but that is entirely a matter for the employer. It is not at all uncommon for a party seeking to set aside a summons not to go into evidence. The same is true for employers opposing an application for interim orders.
4. The worker was critical of the employer failing to provide documents that he requested and appears to have conflated the employer's obligation to make discovery with the process of obtaining evidence by way of summons. Each party is entitled to discovery by the other party under r 6(1) of the Workers Rehabilitation and Compensation Regulations 2021. I was told that the employer has formally requested discovery by the worker, which had not yet been made, and that the employer had permitted the worker more time to do so. Curiously, the worker strenuously disputed that the employer had agreed to give him additional time.
5. Turning to the evidence sought by the summons, insofar as the summons seeks instructions and communications, the materials sought under the headings "Instructions and Authority" and "Communications" would clearly on the face of the description, be subject to privilege. The worker did not point to any relevant waiver of privilege.
6. In respect to documents under the heading "Objection Basis", documents that the employer proposes to rely on in respect to the objection to the summonses are a matter for forensic judgment by the employer, and insofar as they are not subject to privilege would be available by way of discovery. It is a matter for the employer what documents it seeks to rely on in the proceedings, and before the timetable for hearing of the application for interim orders was vacated the employer did not file any evidence. Insofar as they have might have apparent relevance more generally, the documents would be available by way of discovery, subject to claims of privilege.
7. As to the documents numbered (4) under the heading "Witness Identification", the worker did not identify an apparent relevance. Even if he had, the request is so broad as to be oppressive.
8. At the hearing the worker abandoned the matters numbered (5) and (6) under the heading "Witness Identification". Those matters appear to have arisen from a tit-for-tat refusal by either party to disclose the identity of counsel retained for the hearing, which did not reflect well on either party.

1. The five other summonses are in identical terms as to what they seek, and may be dealt with together. Three are directed to employees of the employer's workers compensation insurer and the remaining two are directed to employees of the employer who are involved in the workers compensation process. In each case they seek the attendance of the summonsed person at the hearing of the application for interim orders to give evidence:

The applicant seeks the issue of a summons requiring the attendance of the proposed witness to give evidence at the interlocutory hearing listed on 27 January 2026. > > The evidence sought is directly relevant to matters in issue, including:

(a) The decision to cease weekly payments;

(b) The existence of absence of contemporaneous functional or work capacity assessments at the time of cessation;

(c) The management of the claim following cessation, including medical engagement and return-to-work planning; and

(d) The respondent's reliance on section 81A and asserted reasonable grounds.

The proposed witness has direct knowledge of, or responsibility for, these matters. The evidence cannot be adequately obtained from documents alone and is necessary to ensure procedural fairness in a defended interlocutory hearing.

1. The worker submitted that the evidence sought was directly relevant to matters in issue, including the decision to cease weekly payments. When invited to further identify the relevance to the application for interim orders or the s 42 referral he referred to the threshold for s 81A, and credibility, and the absence of evidence of capacity. He submitted that the evidence would show that there was no reasonably arguable case. He contended that the insurer and the employer were under obligations to him notwithstanding the s 81A orders. It appears that he considered that this arose from his provision of material that supported his contention that he continues to experience incapacity as a result of the claimed injury. The worker did not expressly identify the asserted obligations, but I infer from the worker's criticism of the employer in respect to not providing rehabilitation or attending medical appointments that they relate to ongoing management of his injury. Although I briefly outlined the issues arising on the application for interim orders and on the referral and invited the worker to identify any further issue which he said had apparent relevance to those issues he did not do so.
2. The formulation of the materials sought in the summonses reflects a misconceived focus by the worker on the s 81A referral, which was repeatedly advanced by him at the hearing and in the pre-hearing process. A decision under s 81A is not a final determination of liability. It may be characterised as an interim decision in that either party may subsequently refer the claim to the Tribunal under s 42: Lamont v MRD Supermarkets Pty Ltd [2016] TASSC 16 at [4]. However, a s 42 referral following orders made on a s 81A referral is a de novo proceeding. It is not a rehearing, review or appeal of the s 81A referral or the issues on the s81A referral or the orders made. The issue of whether the employer can establish a reasonably arguable case, as explained in St Helens Oysters Pty Ltd v Coatsworth [2007] TASSC 90 [10] and Bradshaw v Tasmania Networks Pty Ltd [2020] TASFC 2 [17], is irrelevant on a s 42 referral. On a s 42 referral neither party is bound by or restricted to the case advanced by it at a s81A hearing.
3. I observe that, in any event, the s 81A referral was founded on a factual dispute, The employer asserted, on the basis of statements from witnesses, that the claimed injury did not occur in the circumstances alleged by the worker. That being the case it is unlikely that medical evidence and evidence as to incapacity would have resulted in a different outcome, and the existence of that evidence at that time and any motive of the employer is irrelevant if the material tendered supported the making of orders.
4. The worker presented his arguments as if the proceedings in the Tribunal were in the nature of an appeal from the s 81A findings and repeatedly asserted errors by the employer in that proceeding and the decision to dispute his claim and the reasons for so doing as being relevant. The worker criticised the employer for not complying with obligations that might arise in respect to an accepted workers compensation claim, but have no relevance to a claim that has been disputed. In particular he advanced the proposition that the employer was obliged to provide rehabilitation and attend medical appointments. He did not identify the source of any such obligation. Insofar as they are said to arise under the WRC Act the worker is mistaken. The obligation of the employer to pay medical and rehabilitation expenses ceased with the s 81A orders. The purpose of the s 42 referral is to establish those obligations.
5. Matter (a) in the proposed summonses seeks evidence as to the decision to cease weekly payments. It is misconceived. The cessation of weekly payments came about as a result of orders of the Tribunal under s 81A. The decision to pursue the s 81A referral is irrelevant to the issues arising on the application for interim orders or the substantive issue on the s 42 referral. The reasons for the decision to dispute the claim, except insofar as they were disclosed by the proceedings, may well be subject to privilege.
6. As to (b), the evidence sought is the existence or absence of contemporaneous functional assessments or work capacity assessments at the time of cessation. If there are such assessments in documentary form they will be available by way of discovery. Evidence by the recipients of the summonses as to the existence or otherwise of any assessments will not conceivably throw light on any of the issues in the proceedings and is unnecessary given the worker's right to discovery.
7. In respect to (c), evidence is sought as to the management of the claim following cessation, including medical engagement and return to work planning. As best as I can understand from the worker's submissions, he is seeking to establish that there has been no medical engagement, other than for independent medical review, and no return to work planning. That would normally be case in respect to a disputed claim. Once again, the relevance to the application for interim orders or the referral of the proposed witnesses giving evidence in respect to those matters is not apparent and was not explained by the worker.
8. In respect to (d), evidence as to the respondent's reliance on s 81A and asserted reasonable grounds does not have apparent relevance to the issues in the proceeding, is vague, and invites the probability of objections in respect to privilege.
9. I do not consider that the summonses identify any apparent relevance to the relevant issues.
10. For the sake of completeness, although the worker did not identify discrete relevant issues arising in connection with the application for interim orders or the referral I do not consider that any of the summonses amount to fishing within the meaning described in Brocklands Pty Ltd v Tasmanian Networks Pty Ltd (supra) and Roberts-Smith v Fairfax Media Publications Pty Ltd (supra). Without any comment on the merits of the worker's case, it is clear that he has a case for compensation and generally what that case is.

1. The worker was critical of certain conduct of the employer's practitioner and submitted that I should refer her to the Legal professional Board of Tasmania. I declined to do so, and to avoid any doubt, I observed nothing in the employer's practitioner's conduct as disclosed at the hearing or on the file that would justify such referral.
2. The worker raised matters of non-disclosure of requested documents. The worker proposed directions that he provide a table or chronology of the disclosure that he had requested from the employer and that the employer produce those documents and identify documents in respect of which privilege is claimed. I formed the view that the usual procedure for mutual discovery was more appropriate, and at the conclusion of the hearing I made orders that each party make discovery within 14 days.
3. It appears to me that relations between the parties are somewhat antagonistic and that the efficient conduct and resolution of this matter may be compromised by a failure of cooperation between them, the unnecessary filing of material, a confusion of issues, and assertions of sometimes doubtful legal and procedural rights. I will make directions to facilitate the early determination of the application for interim orders. I understand that the usual conciliation process is continuing.

1. I do not consider that any of the proposed summonses disclose a legitimate forensic purpose that is not tainted by privilege or oppression. I will direct that the summonses are not to issue and make directions for the hearing of the worker's application for interim orders.
2. I make the following directions:
   1. The summonses filed by the worker addressed to each of Rebecca M, Paul Monson, Norman Johns, Gillian T, Chris Waterworth and the employer's practitioner are not to issue.
   2. The worker's s 60A application for interim orders is to be listed for hearing for one day on a date to be determined by the Registry following liaison with the parties.
   3. Any further evidence to be relied on by either party at the hearing of the worker's s 60A application is to be filed and served not later than 3 clear business days prior to the hearing.
   4. Any affidavit or witness statement filed pursuant to direction 3 is to contain only statements of fact relevant to the issues arising on the s 60A application and is not to include submissions or statements of law.
   5. No application for the purposes of the hearing of the worker's s 60A application including any application for the issue of a summons is to be filed without the leave of the Tribunal.