Aust and Repatriation Commission

[2004] AATA 1094

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1094

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  A2003/363

VETERANS’ APPEALS DIVISION		)
Re		CHARLES AUST

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr J.W. Constance, Senior Member

Date20 October 2004

PlaceCanberra

Decision   The summons for production of documents dated 12 October 2004 and directed to the Repatriation Commission is revoked.

..............................................

Senior Member

CATCHWORDS

Practice and Procedure – summons – medical records of person not being the applicant – whether Tribunal should revoke summons – summons revoked

Administrative Appeals Tribunal Act 1975 (Cth)

Repatriation Commission v. Deledio (1998) 83 FCR 82

Re Taxation Appeal WT95/13-14 (1996) 22 AAR 505

Alliance Petroleum Australia (NL) and Others v. Australian Gaslight Co (1983) 48 ALR 69

The Commissioner for Railways v. Small (1938) SR (NSW) 564

REASONS FOR DECISION

20 October 2004 Mr J.W. Constance, Senior Member

FACTS

1.      Mr Aust is seeking a review of a decision of the Commission that the condition of malignant neoplasm of the prostate is not related to his operational service.  The application for review is to be heard on 27 October 2004.

2.      On 12 October 2004, at the request of Mr Aust, the Registrar issued a summons to produce documents addressed to the Commission requiring it:

“to produce……all medical reports tendered by the applicant (Ena Mavis Deledio) in her application (sic) against the Repatriation Commission in application (sic) V1996/1111 andV9998/495.”

3. The decision of the Federal Court of Australia, which dealt with Mrs Deledio’s application arising from the death of her late husband, is reported in (1998) 83 FCR 82.

4.      The Commission has applied to have this summons set aside on the grounds that:

(a)the documents being sought are irrelevant to any issue in these proceedings;

(b)the production of the documents would involve an unjustified breach of the privacy of the person to whom the reports related; and that

(c)the production of the documents would set an unfortunate precedent which would raise the concern of other veterans that their medical information held by the Commission may be produced under summons.

5.      Mr Orr, for Mr Aust, argued that as the condition suffered by the late Mr Deledio was the same as that suffered by Mr Aust, there may be information in the reports which would be of assistance in the presentation of his client’s case.  He particularly referred to a report of Dr J R Sullivan which was quoted in part in the Deledio decision.  However, in response to a question from me, Mr Orr indicated that in fact, the reports may be of no assistance to Mr Aust and agreed that the summons was “a fishing expedition” to see whether there was any material which may be of assistance.

6.      For the reasons following the summons should be revoked.

APPLICATION OF THE LAW

7. The Tribunal’s power to revoke a summons arises from its power to regulate its own proceedings given by s. 33 of the Administrative Appeals Tribunal Act 1975 (Cth); Re Taxation Appeal WT95/13-14 (1996) 22 AAR 505.

8.      This power should be exercised carefully, as unlike the power to grant or refuse access to documents produced on summons, the Tribunal does not have the advantage of being able to consider the documents in question before exercising the power.  Each case must be decided on its own facts, and this decision should not be taken to indicate that it would never be appropriate to issue a summons for the production of medical reports relating to a person who is not a party to the proceedings.

9.      There is no evidence before me to show that the documents sought are relevant to the application before the Tribunal.  Whilst there is a suggestion in the Federal Court’s decision that there may be some information of general application in Dr Sullivan’s report, this is not sufficient to show that the report(s) contain relevant material.  However, if lack of relevancy was the only ground for revocation which could be established it would usually be preferable to wait until the documents were produced before making this decision.

10.     I am not satisfied that the Commission has made out a case for revocation based on the privacy of others.  Whilst the Tribunal is always conscious of such concerns, if a document would be of assistance to the Tribunal in reaching a decision there are other means available to ensure that individual privacy is protected.  The confidential nature of a document is not sufficient reason to set aside a summons seeking its production; Alliance Petroleum Australia (NL) and Others v. Australian Gaslight Co (1983) 48 ALR 69 at 76.

11.     I am of the view that the summons should be set aside  on the ground that the Tribunal should not permit its processes to be used in a manner which would be in breach of the common principles under which documentary evidence may be obtained.  In The Commissioner for Railways v. Small (1938) 38 SR (NSW) 564 at 575 Chief Justice Jordan said:

“In the absence of special circumstances, e.g. Griebart v. Morris [1920] 1 K.B. 659, a party is no more entitled to use a subpoena duces tecum than he is a summons for interrogatories, for the purpose of “fishing,” i.e., endeavouring, not to obtain evidence to support his case, but to discover whether he has a case at all……..”.

In this matter Mr Orr properly conceded that he did not know whether there was anything in the reports being sought which would assist Mr Aust’s case at all. In these circumstances I am of the view that the service of a summons to produce the reports is not a proper exercise and therefore the summons should be revoked.  There are no special circumstances which would justify deciding otherwise.

12.     Mr Aust had obtained the consent of the executor of the Estate of the Late Mrs Aust to the release of the reports.  Even so, I remain of the view that the use of a summons in the manner proposed is not appropriate.  It may well be that this consent will enable Mr Aust to obtain the reports by another means.  This is all the more reason not to permit the summons to remain in force.

DECISION

13.      It is the decision of the Tribunal that the summons for production of documents dated 12 October 2004 and directed to the Repatriation Commission is revoked.

I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J.W. Constance

Signed:         .....................................................................................
  Chelsey Bell (Associate)

Date of Hearing  18 October 2004
Date of Decision  20 October 2004
Representative for the Applicant    Mr John Orr
Counsel for the Respondent          Mr Andrew Dillon
Solicitor for the Respondent          Australian Government Solicitor