Background
Mirmehdi (Matthew) Mokhtari, a self-represented litigant, brought proceedings against his former employer Piacentini & Son Pty Ltd in the Federal Court of Australia alleging that his dismissal on redundancy grounds was not a genuine redundancy and constituted contraventions of the Fair Work Act 2009 (Cth) and the Work Health and Safety Act 2011 (Cth). He claimed over $15 million in compensation, asserting that the respondent’s conduct caused such severe injury to his mental health that he would be permanently unable to work.
At the respondent’s request, the Court issued a subpoena to Services Australia (Medicare) requiring production of all documents relating to Mokhtari held by that agency from 1 May 2016 to present, including his Medicare Benefits Schedule (MBS) patient history, Pharmaceutical Benefits Scheme (PBS) patient summary, and claims history statements. Mokhtari applied to set aside the subpoena entirely, or alternatively to narrow its scope to Medicare documents corresponding exclusively to psychological, psychiatric, and mental health services identified by specific item numbers.
The interlocutory application was determined on the papers at Mokhtari’s request, which he grounded in matters relating to his mental health. Piacentini & Son opposed the set-aside application and consented to the paper determination. Colvin J took the opportunity to note that paper determinations are not to be assumed as of right and that oral hearings ordinarily serve important functions of scrutiny, discipline, and efficiency.
The Court’s Holding
Colvin J refused the application in its entirety. Applying the “apparent relevance” test — whether the documents sought have a possibility of throwing light on the issues to be determined at final hearing — the Court held that the full scope of the Medicare subpoena was justified. Because Mokhtari’s central claim was that the respondent’s conduct rendered him permanently unfit for any work, both his mental and physical health records held legitimate forensic purpose: physical health records could bear on his capacity to work and on whether alleged deterioration in mental health was caused by the respondent’s conduct, not pre-existing conditions.
The Court rejected each of Mokhtari’s nine grounds of objection. It held that the subpoena was not a fishing expedition, was not oppressively broad, did not require expert evidence to justify its scope, and was not rendered disproportionate by the sensitivity of health information. The argument that the subpoena should be confined to mental health item numbers was rejected as impractical, as it would impose greater burden on the third-party subpoena recipient and risk excluding documents that touched on multiple health matters in a single consultation.
The Court also confirmed that Mokhtari’s concerns about confidentiality were addressed by the established implied undertaking rule — derived from Hearne v Street [2008] HCA 36 — which prohibits any party from using documents obtained by compulsory court process for any purpose beyond the litigation in which they are produced.
Key Takeaways
- Where a claimant puts permanent incapacity for work at the centre of a large damages claim, the respondent may subpoena broad medical records — not merely those directly labelled as mental health records — because physical health and general medical history bear on causation and extent of incapacity.
- The “apparent relevance” standard for resisting a subpoena is low: documents need only have a possibility of throwing light on the issues in dispute; the category sought will fail only if it is unreal, fanciful, or speculative.
- A subpoena category expressed as “all documents including but not limited to” specific types is not inherently objectionable; such language provides guidance rather than impermissibly expanding scope, provided the overall category is clear.
- Limiting a subpoena to specific Medicare item numbers is likely to be counterproductive: it imposes a document-by-document examination burden on the third-party recipient and risks under-inclusion where consultations address multiple health concerns.
- The implied undertaking against collateral use of compulsorily produced documents (confirmed in Hearne v Street) provides the appropriate privacy safeguard, not blanket exclusion of sensitive records from the subpoena.
Why It Matters
This decision confirms that plaintiffs who claim severe, permanent psychiatric injury as the cornerstone of a large damages claim must expect broad medical discovery — including records unrelated to mental health on their face. The ruling underscores that the scope of legitimate forensic inquiry tracks the breadth of the plaintiff’s own pleading: a claim of total, lifelong incapacity opens the door to inquiry into the whole of the claimant’s medical history, not merely the subset the claimant regards as relevant. Employment and personal injury practitioners should advise clients that expansive damages claims carry correspondingly expansive disclosure obligations.
The judgment also serves as a reminder — particularly for self-represented litigants — that paper determinations are a discretionary indulgence rather than a right, and that courts will weigh the public interest in oral hearings, the discipline they impose, and their efficiency benefits before agreeing to resolve contested interlocutory applications entirely on the papers.