C v Secretary, NSW Treasury (No 2)

[2002] NSWADT 235

CITATION:	C (No 2) -v- Secretary, NSW Treasury [2002] NSWADT 235
DIVISION:	General Division
PARTIES:	APPLICANT Mr C RESPONDENT Secretary, NSW Treasury
FILE NUMBER:	013081
HEARING DATES:	15/05/2002
SUBMISSIONS CLOSED:	05/29/2002
DATE OF DECISION:	11/19/2002
BEFORE:	Hennessy N - Magistrate (Deputy President)
APPLICATION:	Jurisdiction - Summons - application to set aside
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Evidence Act 1995 Freedom of Information Act 1989
CASES CITED:	Re Leverett and Australian Telecommunications Corp (1985) 8 ALN N135 at N 136 RR v Army (1980) 482 F Supp 770 Crewdson v Central Sydney Area Health Service [2000] NSWADT 184 Re Leverett and Australian Telecommunications Corp (1985) 8 ALN N135 at N 136 and Central Sydney Area Health Service v Crewdson [2001] NSWADTAP 44 revised -14/02/2002 Spautz v Williams (1992) 174 CLR 509 State of Victoria v Australian Building Construction Employees’ and Builders’ Labourers’ Federation (1982) CLR 25 Re Secretary, Department of Social Security and Pluta (1991) 23 ALD 317, 319 Re E Pty Ltd and Commissioner of Taxation (1987) 12 ALD 102 Re Lane and Conservator of Wildlife (1984) 5 ALN N297 Johns & Waygood Ltd v Utah Australia Ltd [1973] VR 70 Watts v Hawke & David Syme & Co Ltd [1976] VR 707 John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351 R v Hurle-Hobbs [1945] KB 165 Spencer Motors Pty Ltd v LNC Industries [1982] NSWLR 921, 926 Browne v Dunn (1893) R 67
REPRESENTATION:	APPLICANT In person RESPONDENT M Allars, barrister
ORDERS:	1. The agency's applications in relation to lack of jurisdiction, abuse of process and contempt of court are dismissed; 2. The registry should issue the summons that Mr C requested be issued to the Industrial Relations Commission; 3. The matter is to be set down to conclude the evidence and hear final submissions from the parties.

1 On 11 April 2001, Mr C applied to the Tribunal for a review of a decision made by the Secretary, NSW Treasury (the agency) to refuse to amend a medical report pursuant to s 44 of the Freedom of Information Act 1989 (FOI Act). The medical report in dispute was prepared by Dr Yolande Lucire and contains sensitive personal information about Mr C. The report concluded that:

Mr C has a “personality disorder which is primarily narcissistic but occasionally paranoid as well.”

2 Mr C maintains that this diagnosis is incorrect and that the report should be amended to delete any reference to that diagnosis.

3 The applicant has not been identified by name in these proceedings at his request. To date, no formal suppression order has been made under s 75 of the Administrative Decisions Tribunal Act 1997 (ADT Act).

4 The matter was part heard on 19 March 2002. Mr C summonsed Ms Lord and Ms Woodland to give evidence at the hearing. Ms Lord is the Executive Director, Human Resources Management, at the agency. Ms Woodland is the Manager of the Treasury Managed Fund Scheme. At that hearing an issue arose as to the scope of cross-examination of those witnesses.

5 Mr C asked Ms Lord questions relating to the agency’s offer, or failure to offer, him a redundancy. The agency requested that the Tribunal disallow further questions on this topic because it raised issues which were the subject of pending proceedings in the Industrial Relations Commission. The agency objected to questions on those issues being put to Ms Lord on the grounds of contempt of court. The agency made the same submissions in relation to examination and cross examination of Ms Woodland as it made with respect to the questions that could justifiably be asked of Ms Lord.

6 The matter was adjourned, part heard. On 15 April 2002, Mr C requested that the Tribunal issue a summons to the Registrar of the Industrial Relations Commission of New South Wales (the Commission). The agency opposed the issuing of that summons and on 15 May 2002, a further hearing took place on that issue.

Issues

7 As a result of submissions by the agency, four preliminary issues arise for consideration, before this matter can be finally determined. These issues are:

· whether the Tribunal has jurisdiction to review the substratum of Dr Lucire’s report, including the jurisdiction to vary her findings of fact or substitute its own findings of fact for those in her report;
· whether the review sought by Mr C is an abuse of process;
· whether the Tribunal would be in contempt of the Industrial Relations Commission if it allowed further examination or cross-examination of the two witnesses identified above; and
· whether the Tribunal should issue a summons for the production of certain documents to the Registrar of the Commission.

8 Each of these issues will be considered in turn.

Jurisdiction
9 Agency’s submission.

Under s 39 of the FOI Act, a person who has obtained access to an agency’s document may apply for the amendment of the agency’s records. Section 44 provides that:

An agency may refuse to amend its records in accordance with an application:
(a) if it is satisfied that its records are not incomplete, incorrect, out of date or misleading in a material respect, or
(b) if it is satisfied that the application contains matter that is incorrect or misleading in a material respect, or
(c) if the procedures for amending its records are prescribed by or under the provisions of a legislative instrument other than this Act, whether or not amendment of those records is subject to a fee or charge.

10 The agency’s first submission about jurisdiction was that when the “record” in question is a professional report, the Tribunal does not have the power to determine the correct or preferable decision in place of the decision made by the decision maker. The Tribunal’s role, according to the agency, is not to exercise the powers, discretions and functions of the author of the report, but to “exercise all of the functions that are conferred or imposed by a relevant enactment on the administrator who made the decision.” (See s 63(2) of the ADT Act.)

11 The agency also submitted that if the Tribunal were to inquire into the motives of Dr Lucire, by allowing evidence to be adduced for the purpose of establishing ill-will or bias, it would misconceive its functions. The basis of this submission was that whether Dr Lucire was “tainted by bias or ill will, incompetence or lack of balance, or necessary experience” is not part of the test which the Tribunal must apply. Although this test was put forward in Re Leverett and Australian Telecommunications Corp (1985) 8 ALN N135 at N 136, it was not the test adopted in RR v Army (1980) 482 F Supp 770. According to the agency, the Tribunal mistakenly attributed that test as being derived from RR v Army in Crewdson v Central Sydney Area Health Service [2000] NSWADT 184.

12 The agency added that there is an express statutory duty in s 55(6) of the Freedom of Information Act 1982 (Cth) not to amend a record of an opinion unless the opinion was based on a mistake of fact or the author was “biased, unqualified to form the opinion or acted improperly in conducting the factual inquiries that led to the formation of the opinion.” According to the agency such a test cannot be implied as a matter of statutory interpretation in the NSW FOI Act. It is no part of the ordinary meaning of the terms “incomplete”, “incorrect”, “out of date” or “misleading in a material respect” in s 44 that the author of the record had certain attributes such as bias, lack of qualifications to form the opinion, or that he or she improperly conducted inquiries.

13 Applicant’s submission. Mr C submitted firstly that a medical report held by an agency forms part of the agency’s records. The Tribunal has the power to review the factual substratum on which Dr Lucire’s opinion was based in order to determine whether that opinion is incomplete, incorrect, out of date or misleading. Mr C agreed that the Tribunal must determine whether the administrator’s decision in refusing to amend the record is the correct decision, not whether the opinion of the professional is the correct decision. According to Mr C, the cases demonstrate that bias and ill-will are relevant to a determination of whether Dr Lucire’s opinion is incomplete, incorrect, out of date or misleading.

14 Mr C also clarified that he was not seeking any obliteration of the record, rather he was requesting that a notation be added stating that Dr Lucire’s findings are incorrect.

15 Tribunal’s decision on jurisdiction. The Tribunal’s role is to review the agency’s decision to refuse to amend its records. The agency came to that decision on the basis that it was satisfied that its records are not incomplete, incorrect, out of date or misleading in a material respect. The Tribunal may exercise all the statutory functions that the FOI Act confers on the administrator making the decision. In doing so, the Tribunal must determine, on the basis of all the evidence, whether the records are incomplete, incorrect, out of date or misleading in a material respect. That determination involves examining Dr Lucire’s report and coming to a view in relation to its content. The Tribunal does not lack jurisdiction to undertake this task.

16 The second “jurisdictional” question raised by the agency, relates to the relevance or otherwise of bias and ill will on the part of the author of the record. That question is essentially a question of law which will be determined in the final decision. There is authority for the proposition that bias and ill-will are relevant to the determination of this issue. (Re Leverett and Australian Telecommunications Corp (1985) 8 ALN N135 at N 136 and Central Sydney Area Health Service v Crewdson [2001] NSWADTAP 44 revised -14/02/2002.) The absence from the NSW FOI Act of specific pre-requisites to amendment, such as that the author of the opinion is biased, does not mean that those pre-requisites are not relevant. It is arguable that the pre-requisites set out in the Commonwealth FOI Act may be used as guidance as to the kinds of circumstances which may be relevant when making a determination under the NSW FOI Act.

17 On the basis of these observations, Mr C should not be refused permission to ask witnesses questions on the subject of the bias or ill will of Dr Lucire on the basis that such evidence would take the Tribunal beyond its jurisdiction.

Abuse of process
18 Agency’s submissions

. According to the agency, the Tribunal has power to strike out an applicant’s claim as an abuse of process when, even if the party has a prima facie case, he or she is merely using the proceedings for an improper purpose. The agency submitted that the relevant test, as set out in Spautz v Williams (1992) 174 CLR 509 at 526, is that if the predominant purpose for bringing the proceedings is their use as a means for obtaining some advantage for which they are not designed, there is an abuse of process.

19 The agency pointed out that the Tribunal has the power pursuant to s 73(5)(h) of the ADT Act, to dismiss proceedings it considers to be “frivolous or vexatious or otherwise misconceived or lacking in substance.”

20 The agency submitted that from Mr C’s conduct of the proceedings in the Tribunal, in particular the examination of Ms Lord, the inference is open that he brought the proceedings under the FOI Act for the predominant purpose of obtaining a collateral advantage. That advantage was said to be that the evidence which would ultimately be presented before the Industrial Relations Commission would be more favourable to him. For that reason, if the Tribunal allowed the examination or cross-examination of Ms Lord to continue, the proceedings will amount to an abuse of the process of the Tribunal.

21 Applicant’s submissions on abuse of process. Mr C pointed out that his purpose in applying to the Tribunal was to have Dr Lucire’s report amended so that her diagnosis would not have an adverse effect on his life, and the lives of his children. In particular, Mr C was concerned that the existence of Dr Lucire’s report will affect his professional career because it raises questions about his capacity to make sound judgements, his credibility and his ability to work with others.

22 According to Mr C, GIO General Ltd has already disclosed the report to a number of parties, including the Department of Corrective Services, the Treasury, the Crown Solicitor’s Office, and the Workcover Authority. It is important to Mr C that Dr Lucire’s report be amended as soon as possible so her opinion does not continue to be disclosed to third parties. Mr C says that the only motivation he has in pursuing his application in the Tribunal is to put the record straight and clear his name. He says he has made that application in good faith.

23 Tribunal’s decision on abuse of process. While I accept the agency’s summary of the law in relation to abuse of process, I am not satisfied there is such an abuse in this case. On the basis of all the evidence, the inference cannot be drawn that Mr C’s predominant purpose in bringing these proceedings is to obtain the collateral advantage of rendering the evidence which would ultimately be presented before the Commissioner more favourable to him. Mr C’s purpose is clearly to have a report amended which he considers to be inaccurate and misleading and to avoid any adverse effect that such a record may have on him in the future.

24 Mr C has a statutory entitlement to bring proceedings under he FOI Act. I am satisfied that he has brought those proceedings in good faith and not for any collateral purpose associated with other proceedings. The examination of Ms Lord went to issues which he legitimately and reasonably considered to be in issue in these proceedings and it is not an abuse of process to allow that examination or cross-examination to continue.

Contempt
25 Agency’s submission on contempt

. Mr C commenced proceedings in the Commission against the agency (his former employer) under s 106 of the Industrial Relations Act 1996 on 4 December 2001. According to the agency, Mr C’s s 106 claim is that the agency acted unfairly under his contract of employment, in relation to the offer of, or the failure to offer, a redundancy. One of the issues arising in the proceedings is whether the agency caused Mr C psychological damage.

26 The agency submitted that s 106 proceedings are conducted by the Commission in “Court Session” as a superior court of record. Section 180 of the Industrial Relations Act1996 creates an offence of contempt of the Commission. According to the agency, unless the Tribunal confines the examination and cross-examination of witnesses it will engage in a contempt of the Industrial Relations Commission.

27 The agency provided authority for this proposition in relation to administrative tribunals and pending criminal proceedings. (See for example, State of Victoria v Australian Building Construction Employees’ and Builders’ Labourers’ Federation (1982) CLR 25 and Re Secretary, Department of Social Security and Pluta (1991) 23 ALD 317, 319.)

28 In relation to civil proceedings, the agency relied mainly on the Administrative Appeals Tribunal (AAT) cases of Re E Pty Ltd and Commissioner of Taxation (1987) 12 ALD 102 and Re Lane and Conservator of Wildlife (1984) 5 ALN N297 and on the Victorian Supreme Court decisions of Johns & Waygood Ltd v Utah Australia Ltd [1973] VR 70 and Watts v Hawke & David Syme & Co Ltd [1976] VR 707.

29 Applicant’s submissions on contempt. According to Mr C he needs to cross examine Ms Lord and Ms Woodland, not only to establish whether either of them influenced or directed Dr Lucire, but also to discredit some of the factual assertions in Dr Lucire’s report. Mr C said that he had a statutory right to pursue his FOI application in the Tribunal and the agency has provided no basis for their assertion that the cross-examination of Ms Lord and Ms Woodland could prejudice or embarrass the proceedings in the Industrial Relations Commission.

30 Tribunal’s decision on contempt. Clearly this Tribunal must not take any action which would put it in contempt of court. The principles of contempt, as far as they relate to pending civil proceedings, are set out in the cases relied on by the agency.

31 In Re E Pty Ltd and Commissioner of Taxation, the respondent sought a direction from the AAT that an appeal against an assessment of taxation should be set down for hearing. The applicant opposed the application saying that two witnesses were the subject of committal proceedings in relation to the affairs of the applicant and they would decline to give evidence until the proceedings against them were completed. It was claimed that as a result of the committal proceedings, the witnesses would be forced to claim privilege against self-incrimination in relation to certain matters before the AAT. Davies J agreed that the matter should not be set down for hearing at that stage. The matters which Davies J saw as relevant to determining the issue in the future were:

· the likelihood of a claim of privilege by the witnesses and its effect on the applicant’s case;
· the respondent’s desire to proceed;
· whether, by proceeding, the Tribunal would be in contempt having regard to the criminal proceedings which are on foot; and
· a successful prosecution of the witnesses might affect whether the application for review proceeded.

32 The issues in Re E Pty Ltd and Commissioner of Taxation arose in the context of committal proceedings. In this case there are no criminal proceedings on the horizon, nor is there any suggestion that either of the witnesses may object to giving evidence on the ground that it may tend to incriminate them. Even if there was such a suggestion, s 73A of the ADT Act provides that s 128 of the Evidence Act 1995 applies where a witness objects to giving evidence on the ground that it may incriminate them. In those circumstances, the Tribunal will advise the party that he or she need not give that evidence, or that if he or she gives evidence, the Tribunal will provide a certificate under s 128 of the Evidence Act 1995 to the effect that the evidence cannot be used against that person.

33 In Johns & Waygood Ltd v Utah Australia Limited, the Executive Government of Victoria appointed a Royal Commission to inquire into the causes of the collapse of the King Street Bridge. Prior to the Royal Commission being established, the plaintiff had instituted civil proceedings against the defendants claiming damages. Scholl J refused an application by the plaintiff for an injunction restraining the Royal Commission from proceeding with the inquiry on the ground that the inquiry would constitute contempt. The basis for that refusal was that the exercise of the Royal Commission’s powers would not result in a real and substantial present danger of interference with the course of justice.

34 In Re Lane and Conservator of Wildlife the AAT considered whether it should proceed to review a decision refusing the applicant a licence to import, grow and cultivate a restricted plant in a case where the court of petty sessions had jurisdiction to order forfeiture of the plants. This jurisdiction was civil but arose where a person had been convicted of the offence of cultivating the restricted plant. Referring to the BLF case, the AAT held at N430, that:

Had I thought that it was necessary to come to a view on that point [of jurisdiction of the court of petty sessions], I may have considered it proper to adjourn the proceedings of the Administrative Tribunal until the court had dealt with the matter before it. An Administrative Tribunal should not act in such a manner as to prejudice the conduct of proceedings which are on foot before a court of law.

35 In Watts v Hawke & David Syme & Co Ltd [1976] VR 707 a journalist who was a plaintiff in a pending libel action, sought an order restraining members of the Judiciary Committee of the Australian Journalists’ Association (the Committee) from proceedings to determine a complaint against him. One of the defendants to the libel action had made a complaint against the journalist shortly prior to the libel action being initiated. The Committee refused the journalist’s application for an adjournment. Kaye J of the Victorian Supreme Court found at p 715, that:

The principles emerging from the reported cases lead me to the conclusion that a contempt of court would be committed if a non-curial tribunal were to investigate and to make findings on matters the same as those in issue in a pending civil action, and if such investigations and findings would create a real and definite tendency to prejudice or to embarrass the fair trial of the action.

36 At p 710 of the decision, Kaye J explained at the policy basis for the contempt rule as being the “recognition that the effective administration of justice depends upon protection of the parties and witnesses from prejudice engendered by publications made or expressions used outside the court and not forming part of legal proceedings.”

37 In the absence of any specific authority, I am not satisfied that the Administrative Decisions Tribunal is in the same position as a Royal Commission, a domestic “non-curial” Tribunal or a federal administrative tribunal in relation to the principles of contempt of court. This Tribunal performs judicial, rather than administrative functions and its decisions are conclusive, (subject only to appeal to the Supreme Court on an error of law) and enforceable.

38 However, assuming that this Tribunal is subject to the provisions of s 180 of the Industrial Relations Act 1996, two questions arise for consideration. Firstly, are the issues under consideration the same as those in issue in a pending civil action? Secondly, by allowing the questioning of the two witnesses to continue, would the Tribunal create a “real and definite tendency to embarrass pending proceedings”? (See John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351 at 372.)

39 It appears on the basis of the evidence that at least one issue under consideration in these proceedings is the same as an issue in a pending civil action before the Commission. The agency identified the issues as those relating to the agency’s offer, or failure to offer, Mr C a redundancy.

40 On the basis of the agency’s written submissions, I am not aware of precisely what the prejudice or embarrassment to the proceedings in the Commission is said to be. There are several possibilities. The possibility that a witness will not want to give evidence because of the risk of self-incrimination has been dealt with above. There is no suggestion that either witness will be deterred from giving evidence before the Commission or that their evidence will be influenced by the fact that they have already given evidence before the Tribunal.

41 Similarly, there is no chance that a judge who may ultimately determine the s 106 claim, would be influenced by any finding of this Tribunal. That judge will come to his or her own conclusions on the basis of the evidence in those proceedings. Indeed s 91 of the Evidence Act 1995 specifically provides that:

(1) Evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding.
(2) Evidence that, under this Part, is not admissible to prove the existence of a fact may not be used to prove that fact even if it is relevant for another purpose.

42 The exceptions to this rule in s 92 of the Evidence Act 1995 do not apply to the circumstances of this case.

43 As far as I am aware, these proceedings have not been reported in the media and there is no suggestion that the answers of the witnesses on cross examination would create public hostility towards any of the parties.

44 My conclusion on the basis of all the evidence and submissions, is that examination or cross examination of Ms Lord and Ms Woodlands about the agency’s offer, or failure to offer, Mr C a redundancy will have no real and definite tendency to embarrass or prejudice pending proceedings in the Commission. Consequently I reject the agency’s submissions that the Tribunal should restrict cross-examination of the two witnesses identified in this case, because to do otherwise would be a contempt of the Commission.

45 The matter will be re-listed for the evidence of Ms Lord and Ms Woodland, to be completed and for the parties to make final submissions.

Summons

46 The fourth issue is whether Mr C’s application for a summons to be issued to the Registrar of the Commission should be granted.

47 On 15 April 2002, Mr C requested that the Tribunal issue a Summons to Produce Documents to the Registrar of the Commission. The Tribunal’s practice in freedom of information matters is to require a party to apply to the Tribunal for permission to issue a summons, so as to avoid putting the recipients of a summons to unwarranted time and expense in either seeking to have a summons set aside, or producing documents which have no relevance to any issue in dispute.

48 The documents that Mr C would be requesting that the Registrar produce pursuant to this summons are:

1. Workers compensation file number 02/A1697744 in the name of (Mr C) of (address) (“the 1992 workers compensation file”)
2. A medical file of Dr Yolande Lucire for Mr C (“the file in relation to Mr C’s appointment with Dr Lucire on 6 January 2000”). (Words in brackets added.)

. The reasons Mr C gave for requesting that the Tribunal issue this summons were that when Mr C asked Dr Lucire at the hearing on 19 March 2002, about the factual basis for her opinion about Mr C, she referred to information that Mr C had allegedly provided to her on 6 January 2000. She also referred to Mr C’s 1992 workers compensation file saying that she saw a document in that file, written by Mr C, in which he made grossly offensive comments about his employer and work colleagues.

50 Mr C submitted that it is relevant to these proceedings to examine his 1992 workers compensation file in order to find out whether there is a document which contains the offensive comments that he allegedly made about his employer and his work colleagues.

51 In relation to Mr C’s request for Dr Lucire’s file, Mr C submitted that Dr Lucire said at the hearing on 19 March 2002, that she had examined his 1992 workers compensation file and material sent to her by the Government Insurance Office (GIO). According to Mr C, none of the material that the agency told him that it had forwarded to Dr Lucire shows that his 1998 workers compensation claim was refused under s 11A of the Workers Compensation Act 1987, yet Dr Lucire said in her report that:

Mr C has repeatedly been told, and it was spelt out again by me, that his claim has been rejected on the basis of s 11 of the Workers Compensation Act because his issues concern his redeployment and provision of benefits in the form of a redundancy.
I told Mr C that in order to fight this case, he would have to demonstrate that his employer’s action were ‘unreasonable’.
I later reviewed his file and found that he was deceiving me here and this was not the case. Mr C has been dealing with s 11(a) (sic) for quite some time and knows very well that the major issue in his case is the reasonableness of his employer’s action.

52 Mr C submitted that it is relevant to these proceeding to see which documents are held on Dr Lucire’s file, as the comments set out above indicate that she examined Mr C’s current workers compensation file as well as the 1992 file. The current file contains, among other documents, a Psychological Stress Assessment Report prepared by Ms Judith Fischer, the medical report prepared by Dr Howard Napper on 15 December 1998, and the legal advice of Mr Tim Doubleday.

53 Agency’s submission on summons and Mr C’s responses. In relation to the 1992 workers compensation file, the agency submitted firstly that the summons is unnecessary because Mr C already has the documents contained in that file. Mr C was given these documents as a result of a request made by him under the FOI Act for “copies of all records relating to [his] affairs held by the Treasury Managed Fund.” Access was granted to certain documents including documents 1 to 61 in the schedule attached to a letter dated 10 April 2001 from Mr Ian Neale. According to the agency, those documents are identical with Mr C’s 1992 worker’s compensation file which is the subject of the application for the summons.

54 According to the agency, it is inappropriate to issue a summons for material that has already been provided to a party under the FOI Act. Furthermore it is an abuse of process to issue a summons where there is an alternative statutory procedure to compel the production of documents. (R v Hurle-Hobbs [1945] KB 165.)

55 Mr C’s response to this submission was that while he was willing to ask the Commission to provide a copy of the documents informally, he would rather not supply the Tribunal with the copy of the 1992 workers compensation file in his possession because he “cannot guarantee that it is a complete copy.”

56 Alternatively, the agency submitted that the issuing of the summons would constitute an impermissible “fishing expedition” by Mr C. According to the agency, the summons seeks copies of all documents in the file in order to establish the negative proposition that a document does not exist, namely a document in which Mr C made offensive comments about his employer and work colleagues. It was the agency’s submission that a summons should identify the document sought with sufficient particularity. (Spencer Motors Pty Ltd v LNC Industries [1982] NSWLR 921, 926.)

57 Mr C’s response to this submission was that since Dr Lucire stated that she based her medical opinion about him on her statement dated 22 December 1998 and on his 1992 workers compensation file, it is imperative that he be able to show the Tribunal that the material Dr Lucire says she saw in the 1992 file does not exist.

58 Finally, the agency submitted that although the Tribunal is not bound by the rules of evidence, Mr C did not comply with the rule in Browne v Dunn (1893) R 67. The basis for this submission was that Mr C apparently did not put to Dr Lucire in cross examination that the letter containing the offensive remarks did not exist. According to the agency, the purpose of the rule in Browne v Dunn is to secure fairness to the witness, and the party calling the witness, by giving that witness the opportunity to comment or give an explanation. The applicant and the agency have completed their evidence, except for the evidence of two witnesses called by Mr C. That evidence was the subject of the objection discussed above. The agency submitted that it should not have to recall Dr Lucire to satisfy the rule in Browne v Dunn.

59 The agency also relied on their submissions set out in writing on 9 April 2002. Those submissions are that the evidence which the applicant now seeks to summons is not relevant to the proper exercise of the Tribunal’s jurisdiction and that it is an abuse of process for Mr C to seek to obtain a collateral advantage in this Tribunal in relation to proceedings in the Industrial Relations Commission. Any attempt by Mr C to agitate in this Tribunal issues relating to his workers compensation claim is a contempt of the Commission.

60 Mr C’s response to this submission is that the 1992 workers compensation file is not relevant to the s 106 proceedings before the Industrial Relations Commission. Those proceedings concern his employment at the agency from December 1996 to December 1999. They do not relate to any events which occurred in 1992. Mr C wishes to have his 1992 workers compensation file to prove that it contains no documents in support of Dr Lucire’s findings that in 1992 he devalued and slandered co-workers, that he is a scornful critic of his employer, that he blamed others for his predicament or that he made his employer liable for personal difficulties and problems.

61 In relation to Dr Lucire’s file, the agency submitted that the documents contained in that file are already before the Tribunal. Those documents are listed in Exhibit “G”, namely documents referred to in a letter from the agency to Mr C dated 25 August 2000. That letter states, in part, that:

GIO has confirmed that a copy of the letter advising of the declinature (sic) of your claim along with other relevant documents were submitted to Dr Lucire at the time of the referral.
The “other relevant documents” have been identified as copies of:
a) The letter sent by Dr Ian Smith to Dr Lucire dated 15 December 1999.
b) Your workers compensation claim form dated 22 December 1998.
c) Psychological Stress Assessment prepared by Judith Fischer, Consultant Psychologist dated 13 January 1999.
d) Report by Dr HJ Napper’s (sic) dated 15 December 1998.

62 In the agency’s submission, that letter lists the contents of Dr Lucire’s file. One possible exception is the applicant’s 1998 worker’s compensation claim form but that is already in the possession of the applicant as a result of his FOI request. However, the agency conceded that no-one on the agency’s behalf had checked the file held at the Commission to confirm that these are the only documents in Dr Lucire’s file.

63 According to Mr C, Dr Lucire referred to two files in her evidence, namely “the file” and “the 1992 file”. She explained in her evidence that the first file was the file that had been sent to her by Dr Smith of the GIO. Mr C said that if that file contained only the documents listed in Exhibit G, as the agency maintains, Dr Lucire would have been unable to find out from them that “Mr C has been dealing with s 11(a) (sic) for quite some time and knows very well that the major issue in his case is the reasonableness of this employer’s actions.” According to Mr C, none of these documents mention s 11A.

64 According to the agency, production of Dr Lucire’s file will not assist the applicant in establishing that she made a factual error. To establish such an error, the Tribunal will need to consider the copy of the letter declining the claim, which is already in evidence as Exhibit G, Dr Lucire’s report and the provisions of the Workers Compensation Act 1987. The agency says that production to the Tribunal of duplicate copies of these documents will neither assist the Tribunal nor advance the applicant’s case.

65 Mr C’s response to these submissions was that Dr Lucire was not able to confirm whether the file she referred to when writing the report in issue contained the documents listed in Exhibit G. According to Mr C, access to the file would enable him to determine exactly what information Dr Lucire had access to when she wrote her report and whether she misunderstood or misrepresented that information.

66 Alternatively, the agency submitted that it is open to the Tribunal to interpret the passage in Dr Lucire’s report as indicating her understanding of the nature of the issues which she was required to consider pursuant to s 11A of the Workers Compensation Act 1987 and letter to her by Dr Ian Smith dated 15 December 1999, and her understanding of the applicant’s understanding of those issues. That is, the quoted passage set out in paragraph 51 above, may be understood as making no assertion of fact by Dr Lucire as to the current status of the applicant’s claim.

67 Mr C said that this explanation cannot possibly explain Dr Lucire’s comments. Mr C said that his submission was that none of the documents listed in Exhibit G mention s 11A of the Workers Compensation Act 1987.

Reasons and decision in relation to summons

68 Under s 84(1) of the ADT Act, a summons may be issued by the Registrar either on the application of a party or at the direction of the Tribunal. The ADT Act does not have a specific power to set aside a summons, nor does it have any inherent jurisdiction to do so. However the Tribunal may set aside a summons by implication on the principle that a grant of power carries with it everything necessary for its exercise (Grassby v R (1989) 168 CLR 1 at 16).

69 This is a case where the agency is opposing the issuing of a summons, rather than making an application that a summons be set aside. However, the grounds on which a summons can be set aside are directly relevant in determining this question. A summons can be set aside on several grounds including:

· where it is not issued for the purpose of obtaining relevant evidence and the witness is unable to give relevant evidence ( Botany Bay Instrumentation and Control Pty Ltd v Stewart [1984] 3 NSWLR 98 at 100); or
· where to require the attendance of a witness would be oppressive ( National Employers' Mutual General Assoc Ltd v Waind and Hill [1978] 1 NSWLR 377). In general, the test as to whether a summons is oppressive is whether production of the documents (or calling of oral evidence) is necessary for disposing fairly of the proceedings.( Arhill Pty Ltd v General Terminal Co Pty Ltd (1990) 23 NSWLR 545.)

70 The agency has made submissions on the approach the Tribunal should take when considering an application to amend a record. The agency submitted that the Tribunal should adopt the restrictive approach of RR v Army (1980) 482 F Supp 770, Re Resch 9 Ald 380 and Re Gordon 25 ALD 355. On the basis of those cases, the application for amendment should fail unless the applicant can provide evidence that the factual substratum of the record is “thoroughly discredited” or that Dr Lucire did not genuinely hold the opinion she expressed in the record.

71 It is not necessary for the purposes of this decision to determine the appropriate approach to be taken in amendment of record cases. Even if the test as proposed by the agency is accepted, I find that Mr C is requesting that the summons be issued for a legitimate forensic purpose. That purpose is to obtain evidence which relates to the factual basis on which Dr Lucire came to her opinion. (See Attorney General for NSW v Stuart (1994) 34 NSWLR 667.) Contrary to the agency’s submission the proposed summons does not constitute an impermissible “fishing expedition” by Mr C, nor does it fail to identify the documents with sufficient particularity.

72 It was agreed by the parties that Mr C has a copy of the 1992 workers compensation file as a result of a request under the FOI Act. One of the agency’s arguments is that it is inappropriate to summons the file when Mr C has a copy and could seek to tender it. The agency says that it is an abuse of process to issue a summons where there is an alternative statutory procedure to compel the production of documents. Although Mr C is happy to tender his copy, he said in his written submissions that he does not know if it is complete.

73 A summons may be issued for documents which are not under the party’s direct control. In my view the ‘rule’ that if there is an alternative statutory procedure to compel the production of a documents, those documents should not be summonsed, does not apply to documents which are subject to the FOI Act. It cannot be the case that if documents are capable of being “produced” under the FOI Act, then a party must rely on that procedure rather on summonsing the documents. Even if the documents have been produced to a party under the FOI Act, the same documents can be the subject of a summons. The original documents are not provided under the FOI Act and, as is the case in these proceedings, there is no guarantee that the documents produced under the FOI Act are a complete copy of the documents summonsed. The FOI Act is not an alternative statutory procedure to compel the production of documents, nor is it an abuse of process to summons documents when a party has access to copies of those documents under the FOI Act.

74 Whether or not Mr C has complied with rule in Browne v Dunn and the impact of any non-compliance, is not directly relevant to the question of whether the summons should be issued. That submission will be dealt with when the matter is finally determined.

75 The submission that the evidence which Mr C seeks to summons is not relevant to the proper exercise of the Tribunal’s jurisdiction and that it is an abuse of process, is rejected. I have found that Mr C is not seeking to obtain a collateral advantage by bringing proceedings in this Tribunal. The purpose in seeking to summons the documents from the Commission is a purpose directly relevant to the conduct of these proceedings. The summonsing of those documents can have no effect on other proceedings in the Commission.

76 My conclusion on the basis of all the submissions is that the summons Mr C had requested be issued, should be issued.