COLIN DUNSTAN and COMCARE Professor RM Creyke, Senior Member

[2009] AATA 843

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 843

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No A 1996/449 &  

GENERAL ADMINISTRATIVE  DIVISION		)               A 2007/23
Re		COLIN DUNSTAN

Applicant

And COMCARE

Respondent

INTERLOCUTORY DECISION

Tribunal Professor RM Creyke, Senior Member

Date30 October 2009

PlaceCanberra

Decision The Tribunal upholds the refusal of the President of the Australian Human Rights Commission to comply with the summons to produce documents issued on 10 August 2009.  

...................[sgd]......................

Professor RM Creyke
  Senior Member

CATCHWORDS

PRACTICE AND PROCEDURE – summons – relevance of documents sought to issues to be decided – Tribunal upholds refusal to comply with summons

Crimes (Administration of Sentences) Act 1999 (NSW)

Cosco Holdings Pty Ltd v Federal Commissioner of Taxation (1997) 37 ATR 432

Re Moore and Military Rehabilitation and Compensation Commission (2006) 90 ALD 417

Re Carpenter and Comcare (2003) 75 ALD 587

Re Shiraz Nominees Pty Ltd and Federal Commissioner of Taxation (2003) 77 ALD 183

Australian Gas Light Co v Australian Competition and Consumer Commission [2003] FCA 1101

Comcare v Maganga (2008) 101 ALD 68

Re Mika Engineering Holdings Pty Ltd and Commissioner of Taxation (2006) 92 ALD 688

Re Bird and Military Rehabilitation and Compensation Commission (2006) 91 ALD 691

Re Radge and Ors and Commissioner of Taxation [2007] AATA 1317

REASONS FOR INTERLOCUTORY DECISION

30 October 2009	Professor RM Creyke, Senior Member
BACKGROUND

1.      On 10 August 2009, upon request from Mr Dunstan, the Tribunal issued a summons requiring the Australian Human Rights Commission to produce all information and communications in relation to Mr Dunstan as specified in an attached schedule.  The schedule to the summons specified:

(1)   Having regard to the email of Shane Williams, Australian Taxation Office, dated 23 December 1998:

(a)      The request for information made by the Australian Human Rights Commission (formerly “HREOC”) referred to in that email.

(b)      The response(s) of the Australian Human Rights Commission received to its request.

(c)       Any further communications between the Australian Human Rights Commission and the Australian Taxation Office, its legal advisors and other State or Commonwealth agencies in connection with or arising out of its request for information.

(d)       Any internal documents related to the making of its request for information, or created in connection with or arising out of the request for information, including any documents related to the purpose for making the request.

(2)  Having regard to the email of Tracey Raymond of the Australian Human Rights Commission dated 24 March 2009 – information not otherwise included in paragraph (1)(c) above:

(a)      Communications received by the Australian Human Rights Commission that resulted in it registering on the ACT and NSW Victim Registers.

(b)       Applications made by the Australian Human Rights Commission to register on the ACT and NSW Victim Registers, and all submissions made by the Australian Human Rights Commission in connection with those registrations.

(c)       Communications received by the Australian Human Rights Commission either as invitations to make submissions, or in response to submissions it made in connection with those registrations.

2. The summons was to produce documents relating to Mr Dunstan’s claim against Comcare for incapacity under section 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth).

3.      The Australian Human Rights Commission opposed the application.  The matter was set down for a hearing on 14 September 2009 on the return of summons.  At that hearing, it became clear that there was a misunderstanding about the period to be covered by the summons. The Australian Human Rights Commission believed that the summons was confined to the period 1 November 1998 to 2 December 1999. That was contrary to Mr Dunstan’s position. The Tribunal adjourned the matter and sought submissions on this issue.

4.      On 16 September 2009, counsel for Comcare wrote to the Tribunal to confirm that following the decision of the Tribunal in November 2008, concerning the jurisdiction of the Tribunal in relation to this matter, ‘the applicant’s claim for ongoing incapacity does fall within the Tribunal’s jurisdiction’. The concession, which the Tribunal finds was properly made, meant that Mr Dunstan could pursue a claim for exacerbation to his depressive condition since 2 December 1999. 

5.      On 25 September 2009, the Australian Human Rights Commission filed its submission in response to the request of the Tribunal.  Mr Dunstan filed his submission in reply on 7 October 2009. Subsequent to the resumed hearing in relation to the summons, Mr Dunstan submitted a further letter dated 22 October.  The letter concerned information about two documents.  Mr Dunstan asserted that the documents cast new light on matters relating to Mr Dunstan’s Federal Court proceedings against the Human Rights and Equal Opportunity in 1997.  The submission of this further information did not cause the Tribunal to change its decision in the matter of the summons against the (now) Australian Human Rights Commission.

ISSUE

6. Mr Dunstan claimed that the listing of the Australian Human Rights Commission on the Victims Register set up under section 256 of the Crimes (Administration of Sentences) Act 1999 (NSW) indicated it had made a submission opposing his release on day or weekend leave. He submitted that this submission influenced the decision to deny his application for the leave and in turn contributed to his depressed state.

EVIDENCE

7.      At a resumed return of summons hearing before the Tribunal on 9 October 2009, Mr Dunstan submitted that the documents he sought related to his claim for compensation for incapacity for depressive illness. In particular he noted the following sequence of events:

-On 26 July 2002, the New South Wales Department of Corrective Services, Goulburn Correctional Centre, provided a confidential psychological Assessment Report to the Pre-Release Leave Committee which recommended that as Mr Dunstan was no longer depressed and presented as a low risk of recidivism, he be released on day leave.

-In the course of a directions hearing before the Federal Court on 2 June 2003, Mr Dunstan advised the Court he had applied for day or weekend leave.

-On 11 June 2003, by letter to the NSW Department of Corrective Services, the Australian Government Solicitor (AGS), acting on behalf of the Australian Taxation Office (ATO), indicated that release of Mr Dunstan would be of concern given the ATO’s ‘duty or care to its staff’ and that AGS expected ‘shortly’ to be instructed to seek to have the ATO registered on the Victims Register.

-Mr Dunstan asserted that in June 2003, no victims were registered on the ACT or NSW Registers.

-Subsequently, according to Mr Dunstan, however, both the ATO and the Australian Human Rights Commission were registered on the Victims Register in the ACT and NSW.

-In December 2003 Mr Dunstan was advised that his request for day or weekend leave was refused.

-Following a freedom of information application by Mr Dunstan in December 2003, he discovered that a request had been made that even if his application for leave was acceded to, he should not be permitted to enter the Australian Capital Territory during that leave.

-Some time in 2004 Mr Dunstan was transferred to Bathurst Gaol.  Mr Dunstan’s evidence was that the location made it more difficult for his wife to visit him and to provide him with his anti-depressant medication and this contributed to a deterioration of his depressive condition.

-On 22 January 2004, counsel for the Commonwealth wrote to Mr Dunstan concerning his application for an extension of time to file documents in relation to a matter before the Federal Court involving the Australian Human Rights Commission.  The letter also noted that on 22 July 2003 AGS advised the NSW Department of Corrective Services that the ATO had decided against making a submission regarding Mr Dunstan’s application for day or weekend leave. In response to allegations in a letter from Mr Dunstan of 9 January 2004, the letter went on to state:

Neither the Commonwealth, nor the Australian Government Solicitor (AGS) has the power nor the inclination to interfere in matters such as your access to rehabilitation programs including day and weekend release, or the policies and processes of the New South Wales (NSW) Department of Corrective Services.

-    Mr Dunstan agreed at the hearing that it was not until March 2009 that he discovered that both the ATO and the Australian Human Rights Commission were listed on the Victims Registers in the ACT and NSW.

8.      Mr Dunstan asserted at the hearing that as a consequence of the delay in approving and ultimately the rejection of his application for day or weekend leave his psychiatric condition deteriorated. Those events included the letter by AGS on behalf of the ATO indicating that the Taxation Office would be concerned if his application for leave was approved, and the listing on the Victims Register of the Australian Human Rights Commission and the ATO.

9.      The evidence on behalf of the Australian Human Rights Commission indicated that the Commission did not have any documents referred to in the first schedule of documents listed in the summons by Mr Dunstan.

10.     The Commission did have several documents that would be covered by the second schedule of documents listed in the summons.  Mr Dunstan indicated that he assumed these documents contained submissions by the Commission opposing his application for leave.  It was these documents which were the subject of the hearing.

LAW

11.     The general principles relating to the issue of subpoenas by a court are applicable to the issue of a summons by the Tribunal.[1] In particular, the information sought must be relevant to the substantive issues of the case.[2]  A summons for the purpose of a ‘fishing expedition’ is not authorised.[3] Nor is it appropriate for a return of summons if the summons serves no legitimate forensic purpose, if the terms of the summons are too general, or if responding to the summons would be oppressive.[4] The summons must also not result in the production of material which would breach the privacy of third parties.[5]

[1] Cosco Holdings Pty Ltd v Federal Commissioner ofTaxation (1997) 37 ATR 432; Re Moore and Military Rehabilitation and Compensation Commission (2006) 90 ALD 417; Re Carpenter and Comcare (2003) 75 ALD 587.

[2] Re Carpenter and Comcare (2003) 75 ALD 587; Re Shiraz Nominees Pty Ltd and Federal Commissioner of Taxation (2003) 77 ALD 183; Australian Gas Light Co v Australian Competition and Consumer Commission [2003] FCA 1101; Comcare v Maganga (2008) 101 ALD 68.

[3] Cosco Holdings Pty Ltd v Federal Commissioner ofTaxation (1997) 37 ATR 432; Re Carpenter and Comcare (2003) 75 ALD 587; Re Mika Engineering Holdings Pty Ltd and Commissioner of Taxation (2006) 92 ALD 688; Re Bird and Military Rehabilitation and Compensation Commission (2006) 91 ALD 691; Re Radge and Ors and Commissioner of Taxation [2007] AATA 1317.

[4] Re Bird and Military Rehabilitation and Compensation Commission (2006) 91 ALD 691; Cosco Holdings Pty Ltd v Federal Commissioner ofTaxation (1997) 37 ATR 432.

[5] Re Bird and Military Rehabilitation and Compensation Commission (2006) 91 ALD 691.

12.     In addition, the documents sought must be ‘sufficient … to ground a suspicion that the party applying … has a good case’.[6] In other words, the person applying must be able to make a prima facie case that the documents are relevant to and will assist the Tribunal in its decision on the substantive claim. Ultimately, the rationale for the summons power is ‘to ensure that the parties, and ultimately the Tribunal, can gain access to all material relevant to the review of the decision’.[7]

[6] WA Pines Pty Ltd vBannerman (1980) 41 FLR 175 at 181 per Brennan J (with whom Bowen CJ agreed).

[7] Re Radge and Ors and Commissioner of Taxation [2007] AATA 1317 at [76].

CONSIDERATION

13.     The Tribunal finds that the Australian Human Rights Commission does have documents which are relevant to the second category of listed documents attached to the summons. The Tribunal did not consider it necessary to view the documents.

14.      Nonetheless, the Tribunal does not accept that the documents which would be produced if the summons was acceded to are of sufficient relevance to Mr Dunstan’s claim for incapacity for depressive illness.  Even if the documents included a submission or submissions on the part of the Australian Human Rights Commission that Mr Dunstan should not be allowed day or weekend leave, it is difficult to conclude that it was these submissions which were the cause of the refusal of Mr Dunstan’s application for leave and ultimately of any aggravation of his depressive condition.

15.     Although it appears from the evidence that the ATO did not make a submission on this issue, there may have been submissions from others which were also taken into account in relation to the final decision.

16.     In any event, under the Crimes (Administration of Sentences) Act 1999 (NSW) any submission of a registered victim about a proposed recommendation, for example, as to leave, is to be considered by a Review Council.[8]  The Review Council comprises between 8 and 14 members, of whom 3 are to be judicially qualified and appointed by the Governor, 2 members are to be officers of the Department appointed by the Commissioner of Corrective Services, and the remainder are persons who reflect the composition of the community at large, and are appointed by the Governor.

[8] Crimes (Administration of Sentences) Act 1999 (NSW) s 195.

17.     It would be surprising if a group of that composition did not have a diversity of views, including in relation to submissions made to it.  Such considerations suggest that the recommendations of the Council are likely to reflect a variety of views, for example, in relation to submissions made to the Council. Furthermore, the principal function of the Review Council is to provide advice and make recommendations to the Commissioner of Corrective Services[9] who has the ultimate authority for the ‘care, control and management of offenders held in custody, subject only to the direction of the Minister.[10] 

[9] Crimes (Administration of Sentences) Act 1999 (NSW) s 197.

[10] Crimes (Administration of Sentences) Act 1999 (NSW) s 232.

18.     The Tribunal finds that the decision-making structure under the Act ensures diversity of views while leaving the final decision to an independent decision-maker, the Commissioner.  It is unlikely, therefore, that the Commissioner or the Review Council would have been unduly influenced in the final decision to refuse Mr Dunstan’s application for leave by a submission from one victim registered on the Victims Register.

19.     In addition, there was no evidence to suggest that the Commissioner’s decision contributed to Mr Dunstan’s depressive disorder.  Mr Dunstan did state that his condition worsened following his transfer to the corrective institution at Bathurst. It is not clear why the transfer decision was made. No evidence was provided on that issue.  Nor, on the evidence, can the transfer necessarily be attributed to any submission which may have been made by the Australian Human Rights Commission. The relationship between the transfer decision and the decision to deny him leave was not established. Nor did Mr Dunstan provide medical evidence to support his assertion that the worsening of his medical condition was a direct result of the Commissioner’s decision either to transfer him or to deny him leave.

20.     The Tribunal, therefore, upholds the refusal by the Australian Human Rights Commission to provide the documents requested under the summons on the ground that no prima facie case has been made out that the documents sought are of sufficient relevance to Mr Dunstan’s substantive claim.

21. Both parties also made submissions about the claim by the Australian Human Rights Commission that under subsection 49(2) of the Australian Human Rights Commission Act 1986 (Cth) the President or an employee of the Commission may not be required to produce to the Tribunal documents acquired by the Commission that relate to the affairs of another person. In light of the Tribunal’s findings about the relevance of the documents sought it has not been necessary for the Tribunal to respond to these submissions.

I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Professor RM Creyke, Senior Member.

Signed:         ................[sgd]................................................................
  Associate

Dates of Return of Summons        
Hearing       14 September & 9 October 2009
Date of Decision  30 October 2009       
Applicant self-represented                          
Solicitor for the Respondent          DLA Phillips Fox       

Counsel for the Australian

Human Rights Commission          Mr G McCarthy