Federal Court of Australia

Mokhtari v Piacentini & Son Pty Ltd (No 6) [2026] FCA 790

ORDERS

THE COURT ORDERS THAT:

1.    The applicant's interlocutory application lodged on 13 May 2026 seeking orders setting aside a subpoena issued to Services Australia (Medicare) at the request of the respondent is refused.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

COLVIN J:

1    Mr Mirmehdi (Matthew) Mokhtari was formerly employed by Piacentini & Son Pty Ltd. His employment was terminated on the basis of claimed redundancy. He has brought proceedings in this Court in which he claims that there was no genuine redundancy and alleges contraventions of the Fair Work Act 2009 (Cth) by Piacentini & Son. Aspects of his case are cast as breaches of the Work Health and Safety Act 2011 (Cth). I summarised the nature of his claims in Mokhtari v Piacentini & Son Pty Ltd (No 3) [2026] FCA 464 at [2]-[4]. Mr Mokhtari is conducting the proceedings as a litigant in person.

2    At the request of Piacentini & Son, a subpoena has been issued to Services Australia (Medicare). The documents required to be produced by the terms of the subpoena are:

All documents and information held by Services Australia relating to Mirmehdi Mokhtari (DOB: 24 June 1978) for the period 1 May 2016 to present, including but not limited to: a personal Medicare Benefits Schedule (MBS) patient history; a personal Pharmaceutical Benefits Scheme (PBS) patient summary; and Claims history statements.

3    The subpoena is returnable on 29 June 2026.

4    Mr Mokhtari has applied to set aside the subpoena, alternatively for an order narrowing the documents to be produced to those Medicare Benefits Schedule documents 'that correspond exclusively to psychological, psychiatric, and mental health services (as particularised below)'. The particulars comprise a list of item numbers. His application is opposed by Piacentini & Son.

5    For present purposes, the following aspects of Mr Mokhtari's claim assume significance:

(1)    Mr Mokhtari claims over $15 million in compensation; and

(2)    Mr Mokhtari claims that, by reason of the contraventions by Piacentini & Son that he alleges, he has suffered injuries to his mental health that are so severe that he will not be able to work again.

6    Mr Mokhtari's interlocutory application to set aside the subpoena was listed for hearing on 15 June 2026. On 10 June 2026, Mr Mokhtari filed detailed written submission in support of his application. Written submissions opposing the application were filed by Piacentini & Son on the same date. The following day, Mr Mokhtari made a written request for his application to be determined on the papers. The basis for his request was set out in an email to the Court. The email referred, in broad terms, to matters relating to his mental health. In the result, Piacentini & Son indicated that it would agree to the application being determined on the papers and the hearing was vacated.

7    Although Mr Mokhtari's informal request has been accommodated on this occasion, it should not be viewed as any acceptance of a broader request for aspects of the proceedings to be conducted on the papers. Although the Court has express power to deal with any civil matter without a hearing, the Court must be satisfied as to one of the matters specified in s 20A of the Federal Court of Australia Act 1976 (Cth) in order for that express power to arise. The Court may also deal with certain types of applications on the papers where there is express provision in the Federal Court Rules for those applications to be dealt with without an oral hearing: s 20(4) of the Federal Court of Australia Act. However, in each case, the Court has a discretion as to whether to hear and determine an application without an oral hearing. In exercising the discretion whether to exercise such powers and deal with an application without an oral hearing, the Court will have regard to the interests of both parties (particularly the consequences for fairness in the conduct of the proceedings where one party seeks to have an oral hearing) as well as the public aspects of the interests of justice. In some instances, a public hearing will be appropriate even where the parties agree to a determination without an oral hearing.

8    An oral hearing is not just an opportunity for the parties to make oral submissions. It also is an occasion to scrutinise and test the validity of positions adopted by particular parties. It imposes a discipline upon the parties to justify their positions and to be clear and concise. It also affords the Court an opportunity to raise matters by way of clarification of the positions maintained by the parties and to explore the narrowing of issues consistently with the overarching purpose expressed in s 37M of the Federal Court of Australia Act. It is often the case that an oral hearing will enable a common position to be reached between the parties or for the issues that are to be resolved to be streamlined so they may be addressed by short oral reasons or for the scope of matters to be addressed by written reasons to be considerably narrowed. The present instance is an example where the Court's time would have been more efficiently utilised by a short oral hearing rather than providing written reasons. For those reasons, the Court considers with some care whether it is appropriate for particular matters to be dealt with on the papers.

9    For the following reasons, the application by Mr Mokhtari to set aside the subpoena (alternatively to reduce its scope) should be refused. I address each of the grounds as expressed in the written submissions filed by Mr Mokhtari.

10    The first ground of opposition is to the effect that the scope of the subpoena extends beyond the forensic purpose of Piacentini & Son as stated in its written request for the subpoena to be issued. In support of this ground, Mr Mokhtari focusses upon the short statement of the basis for the request to issue the subpoena made in the form filed by Piacentini & Son on requesting its issue. That statement is requested to enable the Court to ensure that its processes are not being abused. It is not a form of pleading or statement of grounds that is the sole basis upon which the scope of the subpoena may be justified. In the context of an application to set aside the subpoena, the question whether there is proper forensic purpose for the subpoena is to be determined having regard to the pleadings in the case and with due understanding of the nature of the forensic process. The test to be applied is one of 'apparent relevance' to the issues raised by the pleading (although other terminology has been used): Wong v Sklavos [2014] FCAFC 120 at [12]. There must be a possibility that the documents sought may throw light on the issues that are expected to be determined at any final hearing. The documents sought must have a legitimate forensic purpose: Seven Network (Operations) Limited v Fairfax Media Publications Pty Limited [2023] FCAFC 185 at [35]-[38].

11    I do not accept the contention to the effect that the claims made in the proceeding mean that only Medicare documents with a particular Medicare item number that Mr Mokhtari considers might relate to matters of mental health are relevant. An understanding of the nature of Mr Mohktari's recent medical history, his attendance upon medical practitioners and the purpose of those attendances will assist in undertaking forensic inquiries into the overall state of Mr Mokhtari's medical history. The records sought will enable Piacentini & Son to obtain information as to the nature and extent of past medical consultations and the issuance of prescription medication. Medicare records will assist to identify treating practitioners who may have discussed different matters at particular consultations relating to aspects of the patient's health not indicated by the item number for the consultation. Mr Mokhtari's claim concerning the consequences for his mental health are at the heart of his case. He claims to be unable to work at all. His physical capacity may bear upon that broad aspect of the case. It is not possible or practical to list particular types of documents that might be excluded from the general class of documents sought on the basis that they have insufficient relevance. For all those reasons, the records sought by the category stated in the subpoena have apparent relevance.

12    The decision in R v Barton [1981] 2 NSWLR 414 relied upon by Mr Mokhtari does not lead to a different view. Contrary to Mr Mokhtari's submission, for reasons that have been given, this is not a case where the foundation for the category of documents sought could properly be regarded as 'unreal, fanciful or speculative'.

13    The second ground is to the effect that the subpoena is a fishing expedition and lacks particularity. Objection is taken to the formulation of words: 'including, but not limited to'. The objection to this formulation of words is misplaced. They are words of a kind that are commonly used to provide additional guidance to a subpoena recipient, especially where the party requesting the subpoena knows or expects there will be certain types of documents that fall within a particular category that the party seeks (in this case all documents relating to Mr Mokhtari held by Services Australia). It may be accepted that such words could not remedy vagueness or uncertainty as to the scope of the category to which they are applied. However, in this case I do not accept that the overall category is vague or uncertain.

14    The more general submissions advanced by Mr Mokhtari to the effect that the request was a fishing expedition were without foundation given the nature of the claim and Mr Mokhtari's acceptance, implicit in that claim (and his submission seeking to set aside the subpoena), that there will be health records.

15    Mr Mokhtari's submissions also raise issues as to whether there will be great numbers of documents that are required to be produced. This is to raise an issue as to the burden of compliance. This is a matter that is not apparent on the face of the category as expressed and is a matter for the subpoena recipient to raise, if it is indeed a matter for concern.

16    The third ground is to the effect that the subpoena is oppressive 'in terms of its impact on the recipient and on the person whose records are sought'. The submission advanced in support of this ground was put in the following way by Mr Mokhtari:

To compel disclosure of a person's entire medical and pharmaceutical history — every possible illness, every condition, every medication, across every field of medicine — to a former employer, in litigation, is a serious intrusion. For the non-mental health records, that intrusion serves no forensic purpose whatever. Records of the Applicant's physical health, his unrelated prescriptions, and his consultations with specialists in fields unconnected to mental health are numerous, private, and without bearing on any issue the Respondent has identified.

17    To the extent that this submission repeats the first ground it must be rejected for reasons already given. To the extent that the submission relied upon alleges impact upon Mr Mokhtari, reliance is placed upon McIlwain v Ramsey Food Packaging Pty Ltd [2005] FCA 1233 where Greenwood J provided a summary of principles to be applied when considering whether to grant leave to issue a subpoena. However, the particular passage in that summary that is relied upon by Mr Mokhtari concerns whether there is oppressive impact upon the recipient of the subpoena. Otherwise, the fact that a respondent party may seek to obtain access to documents for the purpose of defending legal proceedings is a consequence of the need to provide for a fair procedure where each party can obtain access to documents that may assist the conduct of its case. Having commenced the proceedings, Mr Mokhtari cannot be heard to complain about the consequences of ensuring the respondent has a fair opportunity to undertake the forensic inquiries necessary to respond.

18    The fourth ground concerns the 'heightened sensitivity of health information'. It is expressly advanced as a submission that goes to 'the weight of the discretionary balance' and what is said to be the need for the Court to require a clear and specific justification for the subpoena. For reasons that have been given, there is a proper forensic basis for the subpoena. In effect, this objection was the adoption of a different form of words to claim that there was no legitimate forensic purpose. It must be rejected as a basis for the orders sought.

19    The fifth ground relies upon 'proportionality and the overarching purpose'. It may be accepted that issues of proportionality may arise when it comes to considering whether there is a legitimate forensic purpose to be served by the subpoena: see Dorajay Pty Ltd v Aristocrat Leisure Ltd [2005] FCA 588 at [34] (Stone J). However, for reasons I have given, the category of documents sought is not out of all proportion. It has a legitimate purpose. Accordingly, I can see no reason why it might be said to be inconsistent with the overarching purpose to seek the documents.

20    The sixth ground concerns a point raised by Piacentini & Son to justify not adopting a category that was confined to mental health records. As I have explained, this is an instance where the identification of exclusions of particular documents that may be of little or no relevance is difficult. As I have explained, a broad limitation that focussed upon records relating to attendances to obtain advice or treatment concerning Mr Mokhtari's mental health would be too narrow. Further, even assuming that some form of limitation of the kind proposed by Mr Mokhtari may be able to be formulated and expressed (a proposition that I do not accept), a limitation as to item numbers is more likely to give rise to objection from the subpoena recipient. Any expression of categories of information that requires the subpoena recipient to examine individual documents to see whether they fit within a category places a greater burden upon a third party and is to be avoided if possible.

21    The seventh ground is to the effect that there is no evidence to support the submission that physical health records may contain mental health information. It is to the effect that Piacentini & Son were required to prove such a possibility by some form of expert evidence to be led in opposition to the set aside application. I do not accept that evidence of that kind is necessary as a foundation for the submission. It is a matter of everyday experience and understanding that attendances with medical practitioners often involve the taking of a patient history that will traverse matters that are broader than a particular topic. Further, Mr Mohktari's submission is predicated on the proposition that only mental health records are of any forensic purpose. As I have indicated, physical health records may also be relevant to Mr Mokhtari's claim that he is unfit for employment for the rest of his life.

22    The eighth ground seeks to rely upon the terms of discovery orders that have been made. As to those documents, Mr Mokhtari has been ordered to provide discovery of all documents within the following category (amongst others):

documents that relate to the applicant's claims that he suffered loss or harm, including relevant financial records and medical records

23    Mr Mokhtari maintains that the scope of the order made is confined to documents that relate to his mental health records because, so he submits, it is only those documents that relate to his claims that he has suffered loss or harm. For reasons I have given, I do not accept Mr Mokhtari's asserted interpretation of the Court's order. Documents that relate to a medical consultation in respect of matters concerned with aspects of Mr Mokhtari's physical health may contain information that is relevant to the claims he has made. They will do so if they record matters relating to his mental health. They will also do so if they bear upon his physical capacity to undertake work. In addition, they will do so if they relate to any aspect of his claim that his current state of mental health was caused by the contraventions that he alleges against Piacentini & Son.

24    The ninth ground concerns alleged non-compliance by Piacentini & Son with the Court's practice note in relation to providing lists of authorities. Mr Mohktari says that regard to such authorities would be unfair and unjust because he would lose an opportunity to consider and respond to authorities referred to by Piacentini & Son in its written submissions. If there was any aspect of the matters that are referred to in these reasons that ought not be addressed without first affording Mr Mokhtari an opportunity to make further submissions then I would have provided him with that opportunity. In my view, no such requirement has arisen.

25    Finally, I note that other matters were referred to in the grounds stated in the interlocutory application to set aside the subpoena. As they were not repeated in the submissions, I have treated those matters as not being pressed. In any event, I note that having considered them, they have no merit.

26    To the extent that Mr Mokhtari's concerns relate to the protection of confidentiality of his personal medical information, I observe that there is a substantive obligation upon any party to litigation not to disclose documents or information obtained by compulsion under a rule of procedure or a specific order of the Court and not to use it for any purpose other than that for which it was given unless it is received into evidence: Hearne v Street [2008] HCA 36; (2008) 235 CLR 125 at [96] (Hayne, Heydon and Crennan JJ, Gleeson CJ and Kirby J agreeing).

Associate:

Dated:    19 June 2026