Workers Rehabilitation and Compensation Act 1988; s 42, 81A;

Tasmanian Civil and Administrative Tribunal Act 2020; s 104.

S v State of Tasmania (Department of Justice) [2023] TASCAT 169;

Kuchlmayr v Australian Capital Territory (Compensation) [2023] AATA 2305.

The decision has been anonymised for the purpose of publication.

1. On 11 March 2024, the worker made a claim for workers compensation in relation to an injury to his right index finger which was said to have occurred on 4 December 2023.
2. The claim for compensation was supported by an initial workers compensation medical certificate dated 4 April 2024 from Rosny Doctors (Dr Freeman) which indicated that the worker had presented on 21 March 2024 with "persistent right MF swelling which had been apparent since 4 December 2023, swollen right MF U/S plus steroid no improvement MRI - swelling evidence". The worker's injury was recorded as having occurred "in the course of day to day work".
3. The employer elected to dispute liability to pay compensation to the worker in relation to their claim and on 24 May 2024 referred its dispute to the Tribunal pursuant to s 81A of the Workers Rehabilitation and Compensation Act 1988 (the WRC Act).
4. Subsequent to a hearing of the s 81A referral on 13 June 2024, and with the Tribunal being satisfied that a reasonably arguable case existed concerning the employer's liability in relation to the worker's claim, made orders pursuant to s 81A(3)(c) and (d) of the WRC Act.
5. On 27 February 2025, the worker filed a s 42 referral. As part of that referral, on 20 May 2025, with the agreement of the employer, the worker made an application for a summons to be issued to produce evidentiary material pursuant to s 104 of the Tasmanian Civil and Administrative Tribunal Act 2020 (the TASCAT Act). The summons was requested to be issued to Dr James Freeman - Rosny Doctors and After Hours.
6. The summons sought:

All medical records and documents from any point in time concerning [the worker] [DOB] concerning the right hand and relating to any x-rays, MRIs and ultrasound imaging [the worker] has undergone including but not limited to copies of records, consultation notes and entries, results of test, correspondence to and from other health professionals (including specialists) and reports.

7. In its correspondence to the Tribunal seeking the summons to be issued, the following reasons for its issue were articulated by the worker:

We contend that the worker's relevant medical records held by Rosny Doctors and After Hours are relevant to the following issues associated with the condition for which the worker seeks compensation:

• Diagnosis;
• Prognosis; and
• Ongoing treatment requirements.

The employer's solicitor has initiated a request for the records which we agree are relevant. As such, the worker's medical and associated records concerning his right hand as held by providers such as Rosny Doctors and After Hours are relevant to the determination of issues before the Tribunal on both the worker's and the employer's referrals. Accordingly, please find attached for filing an application for summons to be issued to Rosny Doctors and After Hours.

1. There was no objection to the summons being issued to the Rosny Doctors and After Hours, and consequently the Tribunal issued the summons. On 1 July 2025, the documents produced by Rosny Doctors and After Hours were produced (initially incorrectly being provided to the worker's solicitors) but subsequently being provided to the Tribunal on 1 July 2025.
2. By email on 11 July 2025 to the Tribunal, the worker, having reviewed the documents produced pursuant to the summons, submitted that the following documents should be excluded from production on the basis of relevancy:

(a) Pages 2-11, half of page 11 ending at XRL elbow

(b) Pages 14-25 save for the bottom one third of page 25 which commences at x-ray R hand which is relevant

(c) Pages 41-42

(d) Pages 51, 53, 54, 55 and 61

1. The claim for the documents to be excluded from production to the employer's solicitors on the basis of relevancy was asserted because the relevant injury for the purpose of the claim was an injury to the worker's middle finger on his right hand, and the documents sought to be excluded from production did not relate to such an injury.
2. On 15 September 2025, the employer indicated that they wished the Tribunal to make a determination in relation to the worker's objections to producing the specific GP records returned on the summons. The employer noted:

It is impossible for the employer to make an assessment as to the relevance of the documents without viewing the documents. I also note that the objections would remove GP records in the period of two years preceding the worker making a claim.

1. The issue for determination in this matter is whether the Tribunal should allow the employer access to all of the documents produced pursuant to the summons, or whether access should be limited to those documents produced but to which the worker has objected to produce on the basis of relevancy.

1. At a hearing on 16 October 2025 in support of its claim objecting to the production of the documents identified in its email of 11 July 2025, the worker maintained his position that the identified documents were objected to being produced on the basis of relevancy, noting that the worker's claim was for an injury to his right index finger and that the documents sought to be excluded reportedly related to biochemistry results concerning kidney function and stress and anxiety.
2. When pressed by me that the relevant test for the issuing of a summons was apparent relevancy, the worker's counsel indicated that given the report of Dr Doig provided by the worker's solicitor dated 12 November 2024 which did not indicate any secondary conditions, and in light of what was requested to be produced in the summons, there is not even any apparent relevancy to the medical records to which the objection to production was related.

1. The employer noted that the documents the subject of the objection to production occupied the period between 2022 and 2023, being essentially the two-year period immediately prior to the worker making a claim for compensation for an injury occurring around December of 2023.
2. The employer's counsel submitted that these documents are apparently relevant, especially so given the opinion and diagnosis of Dr Robbins in his report of 29 April 2024 that the worker had been diagnosed with tenosynovitis which is a degenerative condition. It was the employer's submissions that these presentations in this two-year period may be consistent with that degenerative condition. The employer's counsel referenced page 29 of the unredacted documents produced pursuant to the summons which indicated the possibility of inflammatory arthritis which might be a condition consistent with this possible diagnosis of a degenerative condition.
3. It was the employer's submission that there may be no relevant documents amongst those sought to be excluded, but the employer isn't able to make that determination without seeing them. The employer submitted that if none of the documents were relevant, the employer would not seek to rely upon them, or if they did seek to do so at a final hearing, the worker could object at that point to their admissibility, or that they should be given little weight.
4. The employer also submitted that as the worker's condition, on its case, is a pre-existing condition which was the basis for its s 81A referral, documents within the preceding two-year period are apparently relevant to this assertion. This, on the employer's case, is a more extensive exclusion period than that asserted in S v State of Tasmania (Department of Justice) [2023] TASCAT 169, which was ultimately found to be unreasonable.
5. The employer referenced [24] of the decision of S v State of Tasmania (Department of Justice) (supra) in which Deputy President Clues (as she then was) clearly indicated that the test for apparent relevancy is a low threshold.

1. Within Dr Doig's report of 12 November 2024, in response to the question "What is your clinical diagnosis of the above injury?", Dr Doig stated:

The initial diagnosis appears to be a soft tissue injury to the palm of the dominant right hand, most likely damage to the flexor sheath to the middle and possibly ring fingers. This is based on the mechanism of injury and the MRI scan outlined above. He has gone on to develop problems with functional restrictions following a cortisone injection to the middle finger. There has possibly been a deep infection which was not treated. This will require further clarification.

2. Further, in answer to the question "Your opinion as to the whether [the worker's] current disability and/or complaints result from his claimed workplace injury?", Dr Doig stated:

Unless there is evidence available to the contrary, in the absence of any prior or subsequent injuries to the right hand, [the worker's] current disabilities and complaints are a direct result of the incident of November 2023. (emphasis added)

3. In his report of 29 April 2024, in response to the question "What is the diagnosis?", Dr Robbins stated:

Tenosynovitis of the flexor tendon of the middle finger, leading to triggering and locking.

4. In response to the question "Does the presently diagnosed condition result from the incident at work on 31 December 20203? If not, why not?", Dr Robbins stated:

It may or may not. The condition occurs spontaneously due to degenerative processes in older people particularly. Squeezing ratchet pliers in the region of the metacarpophalangeal joint (knuckle joint) could, on the balance of probabilities, contribute to triggering but this would not explain the difficulty with the proximal interphalangeal joint.

1. In S v State of Tasmania (Department of Justice), Deputy President Clues (as she then was) undertook an analysis of the principles relating to summonses and in [16]-[19] stated:

16. In the case of Bob Brown Foundation Inc v Barnett [2022] TASSC 64 at [39] Blow CJ held: > > The principles relating to the setting aside of subpoenas are equally applicable to disputes as to the inspection of documents produced pursuant to subpoenas: Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 per Bell P (as he then was) at [80]. A subpoena will be set aside, or inspection will be refused, when the issuing party did not have a legitimate forensic purpose. The test for the existence of a legitimate forensic purpose is that of apparent relevance; see Comcare v John Holland Rail Pty Ltd (No 5) [2011] FCA 622, 195 FCR 43 at [28]- [35] and the authorities cited there by Bromberg J. > > 17. In the case of Secretary of the Department of Planning, Industry and Environment v Blacktown City Council (supra), Bell P stated at [68]: > > There is a plain difference between "apparent relevance" and "fishing", the latter being the metaphor that is frequently deployed in this area of discourse; see, for example, The Commissioner for Railways v Small [1938] NSWStRp 29; (1938) 38 SR (NSW) 564 at 575; [1938] NSWStRp 29; (1938) 55 WN (NSW) 215. The word "apparent" admits of the possibility that the documents sought by way of subpoena may not ultimately turn out to be relevant. > > 18. Bell P goes on to state at [80]: > > My review of the authorities in relation to the setting aside of the subpoenas and/or the refusal to permit access to documents produced leads me to the conclusion that, although a party will generally be able to demonstrate that it had a legitimate forensic purpose in issuing a subpoena where, to quote Simpson J (as her Honour then was, and with whom Spigelman CJ and Studdert J agreed) in Saleam at [11], it can: > > (i) identify a legitimate forensic purpose for which access is sought; and > > (ii) establish that it is "on the cards" that the documents will materially assist his case, > > at least in civil matters, an inability to demonstrate that it is "on the cards" that the documents sought will materially assist the subpoenaing party's case will not automatically require either that the subpoena will be set aside or that access to the documents produced be refused. It will generally be sufficient and prima facie of a legitimate forensic purpose if the documents sought to be produced on subpoena have an apparent relevance to the issue in the case and/or bear upon the cross examination of witnesses expected to be called in the proceedings. > > 19. In Kuchlmayr and Australian Capital Territory (Compensation) [2023] AATA 2305, the Tribunal held at [36]: > > The threshold of apparent relevance involves two considerations: > > (a) whether there is a real possibility that the documents could reasonably be expected to throw light on some of the issues in the principle proceedings and may assist in the resolution of the issues in the proceedings; and > > (b) whether there is a reason to suppose that the documents will be capable of being used as evidence or for a legitimate forensic purpose in cross examination, such that, when viewed realistically, the documents sought have a bearing on an issue which is not unreal, fanciful or speculative, or that the material sought is reasonably likely to add in some way to the relevant evidence in the case, or that it be "on the cards" that the documents sought will materially assist the party at whose request the subpoena has been issued.

1. It is clear from the evidence referred to that the employer relies upon Dr Robbins' opinion and diagnosis that the worker has been diagnosed with tenosynovitis which is a degenerative condition.
2. The employer also relied upon reference in the unredacted records produced pursuant to the summons of possible inflammatory arthritis, referencing page 29 of those records.
3. The employer also asserts the documents to which objection is made to the production thereof covers the period 2022-2023, noting that the date of the worker's injury is December 2023.
4. There is also a reference in the initial prescribed medical certificate dated 4 April 2024 of the worker's condition arising in the course of day-to-day work before December 2023.
5. Although the worker's counsel was cognisant of the test to be applied to the consideration of an objection to the production of documents being apparent relevance, and not relevance per se, he indicated that given the nature of the worker's claim: that his injury related to a right middle finger injury, and it was only the right hand; relevant documents were requested pursuant to the summons, there is no relevance whatsoever thus excluding a categorisation of these documents as even having any apparent relevance.
6. In all of the circumstances, I do not accept the worker's counsel's submission basing the exclusion of the production of the identified documents pursuant to the summons at this stage in the proceedings.
7. In accordance with the authorities summarised by Deputy President Clues (as she then was) in S v State of Tasmanian (Department of Justice), I consider there is a legitimate forensic purpose in the employer seeking production of the excluded documents as they have apparent relevancy.
8. Given the differing medical opinion as to the worker's diagnosed injury and the employer's medical evidence indicating a diagnosis of tenosynovitis, being a degenerative condition, there is a real possibility that the documents sought to be excluded could reasonably be expected to throw light on some of the issues in the principal proceedings, and may assist in a resolution of the issues in the proceedings.
9. Further, there is also reason to suppose that the documents will be capable of being used as evidence or for a legitimate forensic purpose in cross examination, such that, when viewed realistically, the documents sought have a bearing on the issue which is not unreal, fanciful or speculative, or that the material sought is reasonably likely to add in some way to the relevant evidence in the case, or that it be "on the cards" that the documents sought will materially assist the party at whose request the summons has been issued (see Kuchlmayr v Australian Capital Territory (Compensation) [2023] AATA 2305 at [36]).
10. There is a legitimate forensic purpose in the employer seeking access to the documents sought to be excluded, and that it is on the cards that the documents will materially assist in this case.
11. The worker's pre-existing medical history is an identified issue in the case and there is a reasonable basis beyond speculation that the documents produced may give rise to a line of inquiry relevant to the issues that need to be determined by this Tribunal.
12. For all of these reasons, I uphold the employer's objection to the worker's objection to the production of the identified documents in the email of 11 July 2025 on the basis that they are not relevant. They have a legitimate forensic purpose and are apparently relevant.

1. That all of the records produced by Rosny Doctors and After Hours pursuant to the summons issued by the Tribunal are to be produced to the employer in an unredacted form on or before 14 days from the date of this order.