Federal Court of Australia

Le v Telstra Corporation Limited [2026] FCA 1143

ORDERS

THE COURT ORDERS THAT:

1.    Leave is refused for the applicant to issue two subpoenas filed on 29 June 2026 and one subpoena filed on 21 July 2026.

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

REASONS FOR JUDGMENT

STELLIOS J:

Introduction

1    Before the Court are three requests by the applicant, Phuc Le, for leave to issue subpoenas. He appears in this Court, as I understand was the case before the Administrative Review Tribunal from which he appeals, as a litigant-in-person.

2    By way of brief background, Mr Le has appealed to the Court from a decision of the Tribunal to dismiss his proceeding pursuant to s 100(a) of the Administrative Review Tribunal Act 2024 (Cth) (ART Act). That section empowers the Tribunal to dismiss an application made to the Tribunal if the applicant fails to proceed with the application within a reasonable time.

3    The proceeding before the Tribunal (and, before it, the Administrative Appeals Tribunal, hereafter also referred to for convenience as the Tribunal) arose from a claim made by Mr Le against the respondent, Telstra, under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act, or the Act). Mr Le had applied to the Tribunal for a review of two Telstra decisions to deny liability under the SRC Act. It is unnecessary to set out the history of the Tribunal proceeding in detail. It is enough for present purposes to say that Telstra had, pursuant to s 57(1) of the SRC Act, required Mr Le to attend an Independent Medical Examination (IME). The consequence of a refusal or failure to attend an IME without reasonable excuse is that the employee’s rights to compensation under the SRC Act, and to institute or continue any proceedings under the Act, are suspended until the examination takes place: SRC Act s 57(2).

4    As it transpired, Mr Le did not attend for examination and Telstra notified Mr Le that his rights to compensation and to continue with the proceedings were suspended, and that the suspension would cease once Mr Le attended an IME. Subsequently, Telstra applied to the Tribunal for the proceedings to be dismissed under s 100(a) of the ART Act.

5    In dismissing the proceedings, the Tribunal (constituted by McCarthy SM) concluded that it was satisfied that, in the circumstances (a) Mr Le had no reasonable excuse for failing to attend an IME; and (b) there was no prospect of Mr Le attending an IME otherwise than in accordance with Mr Le’s stated requirements. For the purposes of these reasons, and except where otherwise dealt with below, it is unnecessary to explore further the circumstances surrounding Telstra’s requests for Mr Le to attend an IME or Mr Le’s failure to do so.

6    As the proceeding currently stands before the Court, the respondent, Telstra, has applied for summary dismissal. The summary dismissal application will proceed on the basis of a proposed amended notice of appeal that has been filed for the purposes of the Court’s consideration of the summary dismissal application, supplemented by three points identified in a statement of charge that Mr Le sought to file at one stage.

Subpoena requests

7    In substance, each subpoena seeks the production of certain documents from the Tribunal, Telstra and/or its solicitors. Those documents can be summarised as:

(1)    Any communications (and all records of those communications) between, on the one hand, Telstra and its solicitors and, on the other hand, the Tribunal. As will become apparent, what is sought to be produced is claimed ex parte communications between Telstra’s solicitors and the Tribunal (ex parte communications); and

(2)    Briefing letters sent to two proposed IMEs (the precise dates of those letters were unclear) (briefing letters).

(collectively referred to as the subject documents).

8    The proposed amended notice of appeal contains grounds including (a) apprehended bias; and (b) error of law in the Tribunal’s construction and application of s 57(2) of the SRC Act.

9    Mr Le submits that the subject documents are required to properly resist the summary dismissal application in the proceeding in this Court and in order to properly particularise the grounds of the appeal. It is submitted that the subject documents are directly relevant to central issues in the appeal, including breaches of natural justice, apprehended bias, and whether the primary case has reasonable prospects of success.

10    In support of his requests, Mr Le relied on his affidavit sworn on 7 July 2026. In opposition to the requests, Telstra relied on an affidavit affirmed on 14 July 2026 by Shelley Jill Leembruggen, solicitor for Telstra.

11    The basis for the request for the ex parte communications appears to be that Telstra’s legal representative engaged in private, undisclosed ex parte communications with the Tribunal on two separate occasions, and that those communications give rise to a reasonable apprehension of bias. Mr Le submits that he requires access to the verbatim content of the ex parte communications to fully particularise the bias claim. Relevant to this claim, it appears, is an allegation that, during the hearing, the Tribunal member displayed knowledge of Telstra’s “internal motivations” in trying to obtain an opinion about Mr Le’s injury. In particular, the Tribunal Member is claimed to have said:

What the IME is about is trying to obtain an independent professional opinion about the cause of the CRPS. And in particular, is it a degenerative arthritic condition, which is not related to work or is it related to work?

12    The suggestion is that the Tribunal member displayed knowledge of Telstra’s motivations that otherwise was not available on the material before the Tribunal.

13    As I understand it, the basis for the subpoena requests for the briefing letters is that Conference Registrars had given directions on 5 October 2022 and 15 February 2023 for Telstra to give Mr Le the briefing letters sent to the proposed IMEs. The directions stated that, if Telstra failed to do so, the Tribunal would list the application for a directions hearing, and it would be required to explain its non-compliance at this directions hearing. Mr Le contends that the Tribunal failed to enforce those directions. The contention appears to be that the briefing letters were relevant to Mr Le’s state of mind and the validity of the reasonableness of his excuse not to attend the IMEs.

14    It appears also to be suggested that, instead of enforcing these directions, the Tribunal member, by “unsolicited intervention” or “invitation”, permitted Telstra during the course of the hearing to change its litigation strategy resulting in a constructive failure to exercise the Tribunal’s jurisdiction. It is claimed that the Tribunal Member said: “I know it’s review, so if you’re changing track, fine”. Mr Le alleges that the Tribunal Member thereby prompted Telstra to change its argument.

Consideration

15    For the following reasons, I am not satisfied that there is a legitimate forensic purpose for the subpoena requests and, accordingly, leave to issue the subpoenas is refused.

16    First, Mr Le’s claims of potential bias because of the existence of ex parte communications is based on mere speculation. On 7 October 2023, Mr Le wrote to Telstra’s solicitors to ask whether there had been any ex parte communications with the Tribunal. By email dated 6 November 2023, Telstra’s solicitor replied that there were two occasions where discussions had taken place with the Tribunal in Mr Le’s absence:

(1)    At a directions hearing on 31 May 2023 which Mr Le failed to attend. Telstra’s solicitor indicated that, on that occasion, the presiding member was Webb M, there was no substantive discussion about the matter because of Mr Le’s non-attendance, and that Webb M advised that he did not consider that the Tribunal had a role in proceedings being suspended under s 57 of the SRC Act, but that it was agreed that the matter would be discussed further once Mr Le was present.

(2)    On 4 August 2023, Telstra’s solicitor contacted the Tribunal after having received an email from the Tribunal that the directions hearing listed for 4 August 2023 had been vacated. Telstra’s solicitor explained in the email to Mr Le on 6 November 2023 that contact was made with the Tribunal to seek a better understanding of where the matter stood procedurally so as to understand what next steps were required from Telstra. Telstra’s solicitor stated to Mr Le in that email that:

My notes indicate that I was told the Tribunal is “not minded to list any further directions hearings” and will “address the Applicant’s request to issue summons in writing” but that they could not give me any further information or timeframes on when that would occur.

17    The email of 6 November 2023 further indicated that other correspondence with the Tribunal was limited to correspondence advising that the solicitors acted for Telstra; an email filing summonses and a request to issue summons forms; emails enclosing access orders for summonsed documents and seeking copies of those documents; emails advising details of medical appointments; and emails providing contact details in advance of directions hearings and telephone conferences.

18    As to the communication on 4 August 2023, Mr Le deposes that:

[t]he official record from the AAT Tribunal Record and Case System confirms that a telephone note exists from [4 August 2023], which states: “The IME appointment issue is raised in passing in Member Webb’s decision and I can see the R’s solicitor raised in the phone note made on 4 August 2023”. This officially confirms that the Respondent’s solicitor contacted the Tribunal to raise the issue of the Independent Medical Examination (IME) appointment.

19    The communication made at a directions hearing on 31 May 2023, in relation to which Mr Le failed to attend, and the balance of the communications identified at [17] above, are unremarkable. I am not satisfied that these communications give rise to a reasonable apprehension of bias.

20    As to the communication on 4 August 2023, I do not have before me a copy of the “official record” referred to by Mr Le or any further context to explain it. However, the content of what is set out by Mr Le is brief and obscure. Precisely what was sought to be conveyed by that note, and for what purpose, is unclear. The pathway from this claimed “official record” to an allegation that McCarthy SM had ex parte communications with Telstra’s solicitors about the purpose of the IMEs is not evident. In my view, it is not sufficient to ground the request for a subpoena.

21    In relation to the Tribunal Member’s observation that an IME report might include an opinion about a degenerative arthritic condition, I am satisfied that there is nothing to this claim that the Tribunal Member was thereby revealing prior knowledge of the matter. Ms Leembruggen deposed that there were references to the possibility of a degenerative arthritic condition in T-Documents that were before the Tribunal before 4 August 2025. Any suggestion of bias on this basis is not founded on a sufficient factual foundation.

22    Secondly, to the extent that Mr Le alleges that the Tribunal erred by making findings and reaching conclusions, including about Mr Le’s state of mind and whether he had a reasonable excuse not to attend an IME, without (a) having the briefing letters in evidence; or (b) having enforced its directions for the production of those letters, those claims, if they have merit, can be pursued on the appeal without the production of the briefing letters themselves. Those grounds do not require production by way of subpoena. Nor does Mr Le’s reply submission that the Tribunal erred by treating the briefing “notices” (which I assume to be a reference to the briefing letters) as “operative and enforceable” despite those documents not being in evidence. Again, if it has merit, that is a submission that can be made without Mr Le having access to the content of the briefing letters.

23    Thirdly, to the extent that Mr Le alleges an error in the Tribunal’s treatment of Telstra’s line of argument during the hearing, that allegation is not assisted by the production of the subject documents. What the Tribunal Member said will be evident from the transcript.

24    For completeness, Mr Le further submitted that:

(1)    denying him access to the material records would prevent him from putting before the Court the full facts, severely prejudicing his ability to resist the summary dismissal application; and

(2)    as a litigant in person, there exists an information asymmetry in the matter.

25    These submissions are misplaced. Mr Le has not made out a sufficient case, to the Court’s satisfaction, for the requested material to be provided by way of subpoena.

Disposition

26    Leave is refused for Mr Le to issue the requested subpoenas.

27    The present three requests are the most recent in a series of over 20 requests made by Mr Le, most of which have been refused by a Registrar. Telstra submitted that, in light of the repeated requests, the present requests should be refused as an abuse of process.

28    Because of the conclusions I have reached, it is not necessary to deal with this submission. I note, however, that Mr Le should be clear that repeated requests for the same or substantially similar orders can constitute an abuse of the Court’s process. Unless there are material changes in circumstances, the Court will not entertain Mr Le’s subpoena requests in substantially or materially similar terms as the requests that have already been refused.

Associate:

Dated:    14 August 2026