Vicky Morris v Department for Child Protection [2026] SAET 32 SOUTH AUSTRALIAN EMPLOYMENT TRIBUNAL

AR 15/C55206: Aggravated Serious Criminal Trespass Residence- Occupied

AR 18/D12995: Prevent Person from Attending as Witness

opies of all documents and/or records held by the South Australian Prison Health Service (the SAPHS records) relating to treatment of the applicant including:

ll documents and/or records held by the Department for Correctional Services (the DCS records) as to the treatment of the applicant including:

ccompanying the above applications is an affidavit of Patrick Michael Walsh, the solicitor acting on behalf of the respondent, dated 10 February 2026.

he applicant, Vicky Morris, has objected to orders permitting the respondent to issue the summons.

he issues between the parties are whether the documents are being sought for a legitimate forensic purpose and if so, are there other factors which suggest that the Tribunal should, in its discretion, refuse permission for the summons.

s Morris is a seriously injured worker, having been assessed as having a 64% whole person impairment. Relevantly, she sustained numerous injuries in 2002, when she was assaulted while working for the respondent as a social worker. Other than an attempted return to work for a couple of weeks in the aftermath of the assault, she has not carried out work for the respondent since.

n 2014, Ms Morris was arrested on suspicion of serious drug offences and granted bail.

n 1 July 2015, Ms Morris's entitlement to weekly payments transitioned

ollowing her conviction in December 2017 for the drug offence, Ms Morris remained on bail pending sentencing. However, on 15 January 2018, she was arrested and charged with an offence relating to witness tampering. As a result of this charge, Ms Morris' bail was revoked and she was remanded in custody.

hereafter, the respondent issued a series of decisions relating to Ms Morris' entitlement to weekly payments. First, the respondent suspended her weekly payment entitlement in purported reliance of s 193 of the RTW Act.

econdly, on 1 March 2018, the respondent discontinued Ms Morris' weekly payments pursuant to s 48(2)(e) and 48(2)(f) of the RTW Act on the grounds her employment (which had been terminated on 19 April 2018) had been terminated due to serious and wilful misconduct and that she had breached the obligation of mutuality.

astly, following Ms Morris entering a guilty pleas on 8 June 2018 to the witness tampering offence, the respondent issued a further discontinuance of weekly payments, again on the grounds that Ms Morris had breached the obligation of mutuality pursuant to s 48(2)(f) of the RTW Act.

s Morris was sentenced to imprisonment with a collective non-parole period of two years and three months, suspended upon her entering into a good behaviour bond.

oting that a suspension of weekly payments in accordance with s 193 of the RTW Act is not a reviewable decision, Ms Morris lodged Applications for Review with respect of the decisions to discontinue her weekly payments. These applications form the basis of matters: 387/2019 and 389/2019.

hese matters have a protracted history. The two discontinuance reviews outlined above were initially heard by Gilchrist DPJ on 13 May 2020. In his reasons for decision,1TTT his Honour found that the respondent had a lawful basis to issue the two discontinuances based on misconduct that would justify a finding of a breach of mutuality. However, the issue of

ML Vicky Morris v Department for Child Protection [2020] SAET 92 (Morris).

Ms Morris' work capacity at the relevant times was raised and further

y decision delivered on 6 August 2020,2BBB Gilchrist DPJ concluded that the fact that notional total incapacity is so inextricably linked to the principle of breach of mutuality, as that concept has been developed in workers compensation case law, suggested a 'recognised breach of the obligation of mutuality' as it appears in s 48(3)(g)111 of the RTW Act can only relate to a worker who has some capacity for work. Given the respondent had conceded Ms Morris has no work capacity, his Honour set aside the two decisions discontinuing her weekly payments.

n 17 September 2020, the respondent issued a further discontinuance pursuant to s 48(2)(e) of the RTW Act only, relying on Ms Morris' dismissal from employment for serious and wilful misconduct. An Application for Review in respect of this decision forms the basis for ET- 20-04370.

hereafter, the respondent appealed to the Full Bench of this Tribunal and sought a stay of the orders made by Gilchrist DPJ. Ultimately, the appeal reached the Court of Appeal, with its decision handed down on 15 December 2022.3TTT It its decision, the Court relevantly held that in the circumstances, the obligation of mutuality applies to a worker with total incapacity by reason of a work injury.

n the intervening period, disputation arose between the parties in relation to reimbursement of reasonable medical expenses. Decisions rejecting reimbursement of medical expenses form the basis of Applications for Review lodged in 2020. 4III Most notably, the respondent took issue with the use of opioid medication and a request for approval of significant dental procedures.

ith all matters back before Gilchrist DPJ for hearing, on 18 February 2025 Ms Morris was ordered to file and serve her affidavit evidence by April 2025. Following an extension of time, Ms Morris filed and served her affidavit on 17 June 2025.

n her affidavit, Ms Morris disclosed that she had been further charged with aggravated robbery and kidnapping charges. She spent a period in custody with respect of those charges. Ms Morris deposed that she had pleaded not guilty and proceeded to trial, with the prosecutor ultimately entering a noile prosequi. The charges were withdrawn.

WO Vicky Morris v Department for Child Protection (No. 2) [2020] SAET 148222 (Morris (No. 2)).

ST Department for Child Protection v Morris [2022] SASCA 131.

3F ET-20-01676 and ET-20-04864. An Application for Review in 2023 (ET-23-00485) relates to a

his evidence is consistent with the certificate of record from the District Court of South Australia annexed to Mr Walsh's affidavit,5TTT which reveals that Ms Morris first appeared before the Court on 25 November 2022 in relation to the further charges. A trial lasting twenty-one days commenced on 14 May 2024 and the withdrawal of charges occurred on 31 July 2024, after the jury were unable to reach a verdict.

y Orders dated 10 December 2025, his Honour listed the matter for a judicial settlement conference before me on 30 January 2026, with the trial scheduled for 4 March 2026 with three days set aside.

rior to 30 January 2026, I received an application to vacate the settlement conference as Ms Morris did not wish to participate in settlement discussions. Additionally, Ms Morris requested that the trial be rescheduled to due counsel availability. The respondent did not oppose either request. Accordingly, at a directions hearing on 22 January 2026, I rescheduled the trial to 7 April 2026 and vacated the judicial settlement conference.

n 17 February 2026, the respondent lodged its within Application for the three summonses. While leave is not required for the SAPOL documents, (being non-medical documents) on the same date, Ms Morris' representatives advised that Ms Morris opposed the issuing of the requested summons. Following consultation with the parties on the manner in which to determine the matter, the parties were directed to file written submissions, and it was agreed that the application be determined on the papers.

he respondent says that the documents are being sought for a legitimate forensic purpose.6TTT In relation to the SAPOL documents, the respondent submits that the documents are materially significant, as they provide essential context into the nature of the conduct of Ms Morris, and central to the issue of whether there has been a restoration of mutuality. Further, the material is relevant to properly establish the nature and seriousness of Ms Morris' conduct.

ith respect to the SAPHS and DCS documents, the respondent submits that the clinical records will materially assist the Tribunal in assessing the reasonableness of the medical expenses sought to be reimbursed by Ms Morris. The respondent notes the medical report of Dr Kapur 31 October 2025, and the opinion therein relating to lack of measurable

5B Nieuwenhuizen v Catholic Church Endowment Society Inc [2019] SAET 179666 [25]-[28] (Nieuwenhuizen).

functional benefit to Ms Morris of opioid medication and substitutes prescribed to her while in prison.

he respondent suggests that Ms Morris' assertion of the application for summons leading to an adjournment of the hearing is purely speculative and it does not intend to call any further witnesses.

s Morris accepts the test to be applied to the documents is whether the documents have a legitimate forensic purpose and the degree of relevance to be established as observed by Rossi DPJ in Nieuwenhuizen. However, she submits that other case management considerations ought to be considered. This includes whether the issuing of the summons may necessitate the adjournment of a trial, in which case the Tribunal may decline the application to avoid prejudice to Ms Morris.

n relation to the SAPOL documents, Ms Morris takes a different view on the documents that relate to her initial offending and subsequent sentencing, and the later charges which were ultimately withdrawn. Ms Morris notes that the respondent did not regard the documents relating to the earlier charges necessary in respect of the extensive proceedings before Gilchrist DPJ as to whether she had engaged in a breach of the obligation of mutuality. Therefore, it was difficult to identify their relevance in current proceedings. Ms Morris submits that the respondent has failed to establish relevance and therefore the documents being for a legitimate forensic purpose.

s Morris accepts that the SAPOL documents relating to the later charges, as they relate to her conduct after her serving a sentence of imprisonment, are relevant to the question of restoration of mutuality. Therefore, those documents have adjectival relevance. However, Ms Morris submits that permission to summons the documents should not be granted given the proximity to the trial and the lack of any explanation for the delay in requesting the documents.

s Morris contends that the respondent has been aware of the later criminal charges since the filing of her Statement of Issues and Contentions on 2 December 2024. Ms Morris says that the summons documents are likely to lead to an adjournment of the trial, as to introduce the documents into evidence would necessitate the calling of witnesses yet to be identified.

ny adjournment of the trial would cause Ms Morris significant prejudice as she is a seriously injured worker, who has been without income support since 2018. It is her case that she should be entitled to weekly payments as early as 2019.

n relation to the SAPHS and DCS documents, Ms Morris notes that the apparent relevance of the documents arise from comments made by

Dr Kapur in his medical report. However, she submits that the relevance is questionable.

s Morris contends that the mere fact one practitioner has reservations or even disagrees with prescribed treatment does not mean that the cost of such treatment has not been reasonably incurred, where a worker has relied on apparently reputable medical advice.7MMM

dditionally, the delay by the respondent in seeking these documents and likelihood of an adjournment of the trial provide additional reasons to refuse leave to summons the documents. Again, Ms Morris submits that such delay will be prejudicial to her.

he Tribunal's power to require a person to produce evidentiary material can be found in s 33 of the South Australian Employment Tribunal Act 2014. Further guidance is provided by the South Australian Employment Tribunal Rules 2024 (SAET Rules). Under the SAET Rules, a summons for the production of medical records requires leave of the Tribunal.8TTT A summons for other evidentiary material does not.9AAA Although, the party seeking the summons for non-medical documents must still establish such documents are for a legitimate forensic purpose.10III

n either case, it is clear that the construction of the SAET Act and the SAET Rules provides the Tribunal with the residual discretion as to whether a summons should be issued.

onsequently, the first step in an application for a summons to produce documents, is that a party must establish that the documents sought are for a legitimate forensic purpose.

ere, Ms Morris appropriately concedes that the SAPOL documents relating to the later charges meets this test. Had she not done so, I would have found the documents met the test given her conduct since her earlier offending is central to the issue of whether the obligation of mutuality has been restored.

n relation to the SAPOL documents relating to the earlier offences for which Ms Morris was convicted and sentenced, I find force in Ms Morris' argument that the documents are not relevant to the issues between the parties in the current proceedings. The issue between the parties is not whether that earlier conduct breached mutuality; a decision has already been made in that regard. Rather, it is the question of whether Ms Morris

HC Metro Meat Ltd v Banjanovic [1989] SASC 1868 (Banjanovic).

has restored her obligation of mutuality since1 the conduct amounting to the breach occurred.

urther, the nature of Ms Morris' conduct leading to her convictions and the resultant sentence imposed is well known to the respondent. Indeed, the conduct is set out in detail in the first Morris decision of Gilchrist DPJ.11FFF Accordingly, I am not satisfied that the respondent has established the necessary level of adjectival relevance to say that the issue of a summons for the earlier SAPOL documents is for a legitimate forensic purpose.

ith respect to the SAPHS and DCS documents, the relevance of the material has arisen from Dr Kapur's comments in his medical report dated 31 October 2025. Of note, are Dr Kapur's concerns regarding Ms Morris' medical history being complex, her recollection of medication use being difficult to reconcile with prescribing and dispensing records, and his concern as to any measurable functional benefit of opioid medication, as compared opioid substitute medication while Ms Morris was in prison. Ms Morris asserts the relevance is questionable, particularly given the principles in Banjanovic.

n the analysis of relevant case law undertaken in Nieuwenhuizen, Rossi DPJ observed:12III

In issuing a summons to produce (the first step) the Tribunal is required to be satisfied that it is to be issued for a legitimate forensic purpose.

The test of apparent relevance is lower than the test of admissibility of evidence. It would be sufficient to establish apparent relevance if the document or documents sought gives rise to a line of enquiry relevant to the issues to be tried. That includes documents which may be used to meet an opposing case by way of cross-examination.

Determining the relevance of a document at trial, during the interlocutory phase, is difficult.

is Honour went on to analyse further authorities, including R v Saleam13HHH the which court expressed itself in the following terms:14WWW

Before access is granted (or an order to produce made) the applicant must (i) identify a legitimate forensic purpose for which access is

143 [1999] NSWCCA 86.

sought and (ii) establish that it is "on the cards" that the documents will materially assist his case".

The "on the cards" test indicates that mere relevance is not sufficient and that the parties seeking the issue of the summons must demonstrate relevance at an adjectival level of apparent relevance to the issues in the substantive proceedings.

is Honour's observations are apposite in the current matter. In my view the respondent is seeking the documents for a legitimate forensic purpose. Given Dr Kapur's concerns with respect to the reliability of Ms Morris as an accurate historian, the complexity of her medical history and concerns about treatment are sufficient to establish the apparent relevance of the documents. This includes for use in cross-examining Ms Morris and her treatment providers with respect to the reasonableness of her current treatment regime for which she seeks reimbursement. In other words, it is on the cards that the documents may be materially relevant.

hile I have found that the later SAPOL documents and the medical records from SAPHS and DCS meet the required test, it does not automatically follow that I am bound to permit the summons to be issued. There is discretion.

hen considering whether to exercise discretion, the overall nature of proceedings is relevant, as are case management factors, plus delay and the potential prejudice to Ms Morris.

he main objectives of the Tribunal in exercising its function include: the principles of natural justice and procedural fairness; high-quality, consistent decision making; and ensuring that applications are processed and resolved as quickly as possible while achieving a just outcome.15TTT

igh quality decision-making can only be achieved if parties have an opportunity to place relevant evidence and documentary material before the Tribunal. The Tribunal is to take all practicable steps to ensure that all relevant material is disclosed so as to enable it to determine all the relevant facts in issue in any proceedings.16HHH However, the extent of a party's opportunity to place relevant evidence before the Tribunal is not unending. A balance must be found between the opportunity to present relevant evidence, affording procedural fairness to all parties, and resolving applications as quickly as possible as is just in the particular circumstances of a matter.

acknowledge the respondent's delay in seeking the documents and the lack of any real explanation for the delay. I understand Ms Morris is troubled by this delay. Ms Morris disclosed the subsequent charges in her affidavit that was filed and served on 17 June 2025. Further, in the absence of any submission to the contrary, I infer that Dr Kapur's 31 October 2025 medical report would have been received a matter of a few weeks thereafter, as is the normal course in this jurisdiction. Therefore, the respondent has had many months to consider what evidence it wishes to adduce in relation to these issues.

owever, I note that the scheduling of the current hearing (initially being set for 4 March 2026) only occurred on 10 December 2025. Thereafter, the hearing date was rescheduled at Ms Morris' request on 22 January 2026. As such, the complete timetable to hearing has only recently been fixed.

reject the respondent's submission that Ms Morris' concern that granting the summons will result in an adjournment of the trial, is purely speculative. However, it does not necessarily follow that an adjournment is inevitable. Documents of the type sought can be admitted into evidence without the need to call additional witnesses. It may be feasible and practical for the trial to commence with Ms Morris giving evidence, while the existing medical experts that each party are calling to give evidence are requested to consider the additional medical documents and produce supplementary reports. All these considerations might appropriately be dealt with by the trial Judge.

dditionally, delay can be ameliorated by standard timeframes within the SAET Rules and practice for service, return and inspection of summonsed documents being shortened.

f delay occurs, I accept that the effect of delay in itself is recognised as prejudicial.17III Although if it is appropriate in the circumstances for the trial to be adjourned, then the Tribunal has capacity to relist the matter within weeks, subject to the parties' availability.

n weighing up these competing factors, I am influenced by the unusual circumstances of the matter and the potential significance of the Tribunal's findings to both Ms Morris, as a seriously injured worker, and to the respondent who has the potential liability to make significant payments should Ms Morris' applications succeed.

n the circumstances, I have reached the overall conclusion that it is in the interests of justice to exercise discretion to grant the summons for

IA7 Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541, 551 (McHugh J).

production of those documents that I am satisfied the respondent is seeking for a legitimate forensic purpose.

ermission to summons production of the following documents from SAPOL is refused:

1. 15/C55206: Aggravated Serious Criminal Trespass Residence-Occupied

AR 18/D12995: Prevent Person from Attending as Witness

ermission to summons production of the following documents from SAPOL is granted:

ermission to summons production of the requested documents from SAPHS is granted.

ermission to summons production of the requested documents from DCS is granted.

he above permission is granted on the condition that the summons shall be issued not later than 16 March 2026, with a return date of 24 March 2026.

shall hear from the parties as to whether the inspection period for the DCS and SAPHS records referred to in r 149(3) of the SAET Rules should be reduced or can be waived.