(2) If the Tribunal grants permission to issue a summons for medical records under this rule the application for the summons must be accompanied by evidence of payment of $100 or such other amount as may be prescribed from time to time to the recipient of the summons.

(3) When summonsed medical records are provided to the Registry, a registrar must give the person to whom the medical records relate 7 days, or such lesser time ordered by a Tribunal member, to consider the records before they are released to the party issuing the summons and any other party to the proceeding.

(4) A person whose medical notes are summonsed may apply to the Tribunal to limit the extent of the medical notes released or to have part of the medical notes redacted if they are not relevant to the proceeding.

(5) All parties to a proceeding must be advised of an application made under sub-rule (4) but the application may be made ex parte and need not be served on any other party unless the Tribunal orders otherwise.

(6) In considering an application made under sub-rule (4) a Tribunal member may have regard to all medical records produced in response to a summons and may order the non-release or redaction of such part of the medical notes that are not relevant to a proceeding.

1. Rule 149 is to be construed by reference to its text, in the context of other relevant rules and having regard to relevant policy considerations including the main objectives of the Tribunal which are set out in s 8 of the South Australian Employment Tribunal Act 2014 (the SAET Act). Two relevant objectives are, firstly, to ensure that applications are processed and resolved as quickly as possible while achieving a just outcome,[3] and secondly, to keep costs to parties involved in proceedings before the Tribunal to a minimum in so far as is just and appropriate.[4]
2. Those objectives are also embodied within the SAET Rules. Rule 4 sets out the overriding purpose and application of the Rules and provides:

4. Overriding purpose and application of the Rules and identification of interest

(1) The overriding purpose of the Rules, as they apply to proceedings in the Tribunal, is to facilitate the objectives of the Tribunal, and, in particular, to achieve the just, quick and cost-effective resolution of the real issues in proceedings.

(2) The Tribunal must seek to give effect to the overriding purpose of the Rules when exercising any power given by the SAET Act or the Rules and when interpreting any rule in the Rules.

(3) A party to a proceeding is under a duty to assist the Tribunal to achieve the overriding purpose of the Rules, to participate in the processes of the Tribunal in a constructive manner and to comply with directions and orders of the Tribunal.

(4) A party, representative, witness or interpreter to or in a proceeding is under a duty to disclose any interest reasonably known or apprehended, personal or pecuniary, in or in relation to any matter or witness before the Tribunal.

(5) Each of the following persons must not, by their conduct, cause a party to a proceeding to breach a duty identified in sub-rules (3) or (4): (a) a solicitor or barrister representing a party in a proceeding; (b) any person with a relevant interest in a proceeding commenced by the party.

(6) The Tribunal may take into account a failure to comply with sub-rule (3), (4) or (5) in making or declining to make an order for costs.

(7) For the purposes of this rule, a person has a relevant interest in a proceeding if they: (a) provide financial assistance or other assistance to a party to the proceeding; and South Australian Employment Tribunal Rules 2024 Page 8 of 100 (b) exercise direct or indirect control over, or influence, the conduct of the proceeding or the conduct of a party to the proceeding. [emphasis added]

1. Rule 5 addresses overarching obligations, cost effectiveness and proportionality and provides:
   1. Overarching obligations, cost effectiveness and proportionality

(1) A party or a person appearing before the Tribunal must, in relation to a proceeding:

(a) act honestly;

(b) not engage in misleading conduct;

(c) not take a step that is frivolous, vexatious or an abuse of process;

(d) not make an assertion or response to an assertion for which they do not, on the material available at the time, have a proper basis;

(e) not take a step unless they reasonably believe that it is necessary to facilitate the resolution or determination of the proceeding;

(f) cooperate with the other parties and with the Tribunal in relation to the conduct of the proceeding;

(g) use reasonable endeavours to resolve or narrow the scope of a disputed issue in the proceeding by agreement;

(h) comply with the Rules and orders made by the Tribunal;

(i) be prepared for and ready to proceed with a hearing, directions hearing, trial, conciliation conference, settlement conference or mediation at the appointed time; and

(j) use reasonable endeavours to act promptly and minimise delay.

(2) Tribunal proceedings must be conducted efficiently, cost-effectively and by having regard to proportionality as defined in rule 6.

(3) Legal practitioners and other persons authorised to represent a party in a proceeding must use their best endeavours to facilitate the just, quick and cost effective resolution of the real issues in proceedings before the Tribunal. [emphasis added]

1. Rule 149 appears in part 22 of the SAET Rules which addresses specifically matters relating to the operation of the RTW Act. Ms Williams sought to rely upon sub rules 149(4) and (6). Ms Makris accepted that r 149 confers a discretion upon the Tribunal to order either the non-release or redaction of such part of the medical notes that are not relevant to the proceeding. What is meant by "relevant" for the purposes of sub rules 149(4) and (6) is not defined. What is meant becomes evident after considering the common law approach to the inspection of documents summonsed for production by a court and by a comparison with the relevance test that is applied by the Tribunal for the disclosure of documents by parties to the proceedings together with the text of r 63 which is a general rule relating to its granting of access to documents produced to the Tribunal.
2. In Nieuwenhuizen, I addressed the position at common law. I referred to passages in the judgment of Moffit P in National Employer's Mutual General Insurance Association Ltd v Wain (Waind)[5] as follows:

...[I]n my experience it has long been the practice in this State for the judge, even against opposition, to exercise a discretion to allow one party or the other to inspect documents which appear to be relevant to the issues, whether or not in admissible form. As I understand past practices, where, however, objection is raised by the owner of the documents, the judge examines the documents with some care to ensure there is no abuse of the subpoena, and to determine whether the documents appear relevant in the sense that they relate to the subject matter of the proceedings, in which event he will permit inspection by one or both parties at an appropriate time. The question of their admissibility without more, in accordance with the rules of evidence, does not then arise because, if relevant they may be admitted in a variety of ways, as by first establishing facts or adopting procedures which may make them admissible or by their being admitted by consent. If apparently relevant, I do not see how the objections of the stranger could prevent their admission in evidence, by consent of otherwise, or the inspection which may lead to this occurring. The ultimate question of whether they are ruled to be relevant and/or admissible is left to the third stage of receiving evidence. In my view, this practice is within the wide judicial discretion already referred to, to permit inspection of documents in the control of the court pursuant to a valid subpoena.

The crucial question in relation to the exercise of the discretion to permit inspection in the second step is whether the documents have apparent relevance to the issues. It is at the third step that questions between the parties of relevance in fact and admissibility are ruled upon. The judge is in some difficulty in determining whether documents are relevant prior to the presentation of the evidence or at the commencement of the case**. If there is particular objection from the witness, or questions of privacy are involved, no doubt procedures can be adopted to ensure that only relevant documents are inspected. In other cases, it would appear appropriate to proceed to exercise the discretion, provided the documents are apparently relevant or are on the subject matter of the litigation. However, the limitation on the exercise of the judge's discretion to allow inspection is that the document contains information of apparent relevance to the issues. Once the judge has that opinion, inspection will normally be allowed**, notwithstanding that the document is not admissible as it stands, and notwithstanding that the party seeking inspection has not given any undertaking to tender it or use it in cross-examination.[6] [my emphasis]

1. In Nieuwenhuizen, I observed that the apparent relevance test is lower than the test of admissibility of evidence and that it would be sufficient to establish apparent relevance if the document or documents sought gives rise to a line of inquiry relevant to the issues to be tried. I added that includes documents which may be used to meet an opposing case by way of cross-examination.[7] It may be difficult for the Tribunal member, on the limited information available at the time, to determine the extent to which entries in the medical record produced, may be relevant to an issue to be tried.
2. Rule 56 of the SAET Rules addresses discovery and production of documents. Rule 56(2) provides that, generally, a party must discover documents that are directly relevant to any material issue in a proceeding. That is a more stringent test. In the Supreme Court, the change from its previous requirement to disclose all relevant documents, to the more stringent test was to avoid onerous and costly applications associated with the previous rule.[8]
3. Rule 63 of the SAET Rules is a general rule related to access and use of documents produced to the Tribunal pursuant to a summons to produce documents. It provides relevantly:

63. Access to and use of documents and other things

(3) If any person or party believes there are grounds for objecting to a party or parties having access to the summonsed material, they may object to access being given, or may seek to have access to the summonsed material before any other party is given access (first access).

(4) In the case of a summons to produce documents or evidentiary material, if by the date for compliance with the summons no person has objected to any party having access to the summonsed materials, a registrar will make directions in relation to access.

(5) Where sub-rule (1) applies, the Tribunal may order that parties have electronic access to the summonsed materials.

(6) If any person or party believes there are grounds for objecting to a party or parties having access to the summonsed material, they may object to access being given, or may seek to have access to the summonsed material before any other party is given access (first access).

(7) Without limiting the ambit of sub-rule (3), an objection to a party having access to summonsed materials may be based on privilege, confidentiality or other good reason.

(8) If first access is given to a person or party, they must inspect the summonsed material and advise the Tribunal in writing within 7 days of being given first access if they object to any other party having access to the summonsed material.

(9) A notice under sub-rule (5) must describe in sufficient detail the precise material to which access is opposed, the party or parties to whom access should not be given and the basis for opposing access. [emphasis added]

1. Rule 63 generally permits any person or party to make application to restrict access being given to summonsed material to another party to the proceeding. Rule 149 has some material differences. Firstly, it is a specific rule related to a proceeding under the RTW Act other than an action for recovery of compensation. Secondly, in such cases, there is no right to summons a person's medical notes, imaging reports or other medical records. Permission of the Tribunal is required. Thirdly, where permission is granted, the application for summons to be issued must be accompanied by evidence of payment of $100 or such other amount as may be prescribed from time to time to the recipient of the summons. That recognises the administrative cost associated with complying with such a summons by the relevant medical practice. Fourthly, when the summonsed medical records are provided to the Registry of the Tribunal, the person to whom the medical records relate must be allowed time to consider the records before they are released to the party issuing the summons and any other party to the proceeding. Fifthly, a person whose medical notes are summonsed may apply ex parte for the non-release or redaction of medical records as produced it to the Tribunal.
2. A matter to be addressed is why in proceedings involving claims for compensation under the RTW Act, medical records are to be treated in the particular manner set out in r 149. As already noted, and from the text of the rule, it may be accepted that the medical records of a treating practice, such as a general practice clinic, are likely to contain entries which are not relevant to the proceeding. However, the same could be said of other documents which may be summonsed such as the personnel records of a registered employer relating to an employee who is an injured worker. Personnel records are not treated in the same way apart from possibly personnel records which are in the nature of medical records. This indicates that there is a particular aspect of medical records that is sought to be addressed by r 149.
3. Medical records may contain entries which are not only irrelevant to the proceeding but are also of a nature which is sensitive and embarrassing to the person who is subject to the medical records if inspected by another party to the proceeding. Sometimes it may be distressing for the person to whom the medical records relate, if another party is permitted to inspect such entries. Where there are such entries, just the knowledge of inspection of such entries by another party to the proceeding may unnecessarily cause embarrassment and distress. Especially where there are a substantial number of entries, both relevant and irrelevant, in a medical record produced to the Tribunal, the primary function of r 149 is to allow the Tribunal to make orders so that a person is not unnecessarily embarrassed or distressed by permitting another party to inspect entries in a medical record that are also irrelevant to the proceeding. This is also consistent with object s 3(2)(a) of the RTW Act, which includes an objective that workers who suffer injuries at work are treated with dignity.
4. The rule refers to an application for notes to be redacted. This supports a conclusion that absent such an application if some of the content meets the apparent relevance test, then the whole of the produced medical record may be inspected by other parties. It also supports a conclusion that the onus is upon the party making the application to persuade the Tribunal that it is in the interests of justice for the discretion conferred to be exercised in favour of the granting the application. The requirement for an application also recognises that the Tribunal has already summonsed the production of the notes and been thereby satisfied that there was a legitimate forensic purpose and that the apparent relevant test had been met for an order for production. Rule 149 is not intended, especially where there are a substantial number of entries, to give rise to a careful forensic analysis and application for redaction of any and all entries considered by the person who is the subject of the medical record to not be relevant to the proceeding, before another party is granted access to the medical record. Such an approach is inconsistent with the major objectives of the Tribunal to ensure that applications are processed and resolved as quickly as possible while achieving a just outcome and to keep costs to parties involved in proceedings before the Tribunal to a minimum in so far as is just and appropriate. That approach, if routinely adopted, would also impose a considerable burden upon the resources of the Tribunal. It would be required to carefully peruse and consider each entry sought to be redacted against the background of the documents on the Tribunal file related to the issues between the parties to be tried. It is not unusual for hundreds of pages of medical records to be produced to the Tribunal and a worker may identify many entries which are considered not to be relevant to the proceeding, but which are neither sensitive nor embarrassing in nature. That could delay the ability of the Tribunal to attend to other matters or require additional resources where object s 3(2)(a) of the RTW Act is to ensure that employer's costs are contained within reasonable limits so that the impact of work injuries on South Australian businesses is minimised.
5. Ordinarily, where the Tribunal is satisfied that the medical record produced contains notes which satisfy the apparent relevance test, the whole of the medical record will be made available for inspecting by other parties. The person to whom the notes relate bears the onus to persuade the Tribunal that is in the interests of justice for a contrary order to be made.

1. In this case, a number of the entries initially contended by Mr Angeletti to be not relevant to the proceeding, may in fact be relevant. Ms Williams' body mass index has been recorded as 35.0. I am permitted to know that that is significantly within the range of 30 to 40 to be characterised as obese. There are entries that she is hypertensive and blood tests have been regularly performed to monitor the level of cholesterol. The association between obesity, elevated cholesterol levels and hypertension are well known. I cannot rule out, as a reasonable line of investigation by BHP, whether there is a causative connection between Ms Williams' degenerative changes in her body which have been recorded to the parts of her body which are the subject of claims for compensation and any permanent impairment to those body parts, and her obesity. I understood Ms Makris to have ultimately accepted that it was open for the Tribunal to conclude that BHP should be granted access to those medical entries.
2. Ms Makris then referred to other entries which were submitted could have no relevance to the proceeding and should thereby be redacted. She made specific reference to a presentation for a cough and presentation related to the skin condition of psoriasis. There were few such entries and there was no evidence that Ms Williams was either sensitive about those entries or that she would be embarrassed by disclosure of such entries to BHP. The expense associated with the preparation of Mr Angeletti's affidavit, the preparation for and the attendance at court by both instructing solicitor and independent counsel for such a submission could not be justified. It is inconsistent with the obligation set out in r 5(2) of the Rules that Tribunal proceedings be conducted efficiently and cost effectively. In addition, where there is an application by a worker for the redaction of many entries in the medical records, the presiding Tribunal member is required, in advance of the hearing, to carefully peruse the contents of the Tribunal file as to the cases of the parties and then the whole of the medical record produced to the Tribunal. The overall cost to the community could not be justified in the identified circumstances of this case.
3. Ms Makris then sought a brief adjournment to obtain further instructions. Upon resumption following the adjournment, she referred for the first time, to some entries she submitted could be sensitive and embarrassing. Those entries were not specifically referred to by Mr Angeletti in his affidavit. There was no affidavit evidence from Ms Williams and accordingly, there was no evidence from her that she was either sensitive about those entries or would be embarrassed or distressed if those entries were disclosed to BHP for the purpose of the proceedings. In this regard it is also to be noted that where there is inspection of documents produced to the Tribunal pursuant to a summons to produce documents, they may only be inspected by those directly involved in presenting the case for BHP to the Tribunal. In addition, what is commonly referred to as the "Harman undertaking", as addressed by the High Court in Hearne v Street[9] applies. That is, there is an implied undertaking to the Tribunal that the disclosed information will only be used for the purpose of the current proceeding. If Ms Williams was sensitive about those particular entries and would be embarrassed by the inspection of those entries by BHP, then I would have expected a specific reference to those entries in affidavit evidence, and ideally, from Ms Williams herself. Given the limited time available for an application for restricted access by other parties to medical records, it may be appropriate for a solicitor to refer to instructions received but there was no such reference in Mr Angeletti's affidavit. From the bar table, Ms Makris was unable to put the position of Ms Williams any higher than a broad position that she wished to maintain confidentiality in relation to any entry not relevant to the proceeding. A further adjournment was sought to obtain further instructions from Ms Williams as to whether she would find disclosure of those notes to BHP embarrassing. The application was refused. There is a heightened obligation of candour in ex parte applications.[10] Ms Williams had been given the opportunity to put all relevant matters before the Tribunal and an adjournment would have involved more time and expense.
4. The parties shall be heard in relation to any application for costs of the application for directions dated 30 June 2025.

[1] To qualify to be treated on an interim basis as a seriously injured worker, Ms Williams is required to prove that her work injuries have resulted or will result in permanent impairment and that it appears that the degree of whole person impairment, from her work injuries, is 35% of more. Impairment from other causes is to be disregarded and thereby deducted.

[2] [2019] SAET 179.

[5] [1978] NSWLR 372.

[6] Waind 385, cited in Nieuwenhuizen [39].

[8] Quenchy Crusta Sales Pty Ltd v Logi-Tech Pty Ltd [2002] SASC 374 [12] (Doyle CJ).

[9] [2008] HCA 36; (2008) 235 CLR 125.

[10] Gilfillan v Gilfillan (1973) 6 SASR 330 at 334, followed in Jarrad v Santamaria [2005] SASC 196 [12] (Gray J).