HDCZ and National Disability Insurance Agency - [2022] AATA 359

HDCZ and National Disability Insurance Agency [2022] AATA 359 (17 February 2022)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2021/1836
Re:HDCZ
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Member, D Connolly
Date:17 February 2022
Date of written reasons: 2 March 2022
Place:Sydney

The summons issued on 17 January 2022 is set aside.
...................................[SGD].....................................
Member, D Connolly
CATCHWORDS
PRACTICE AND PROCEDURE – objection to production of summons material – whether summons is an abuse of discretion – whether summons is necessary – summons set aside.
LEGISLATION
Acts Interpretation Act 1901 s 33
Administrative Appeals Tribunal Act 1975 ss 37, 40A, 41, 68
Administrative Appeals Tribunal Regulations 2015 Rule 17
National Disability Insurance Scheme Act 2013
CASES
Cosco Holdings Pty Ltd v Commissioner of Taxation & Anor [1997] FCA 1504
Re Bird and Military Rehabilitation and Compensation Commission (2006) 91 ALD 691; [2006] AATA 109
Re Perpetual Trustee Co (Canberra) Ltd and Commissioner for ACT Revenue(1993) 29 ALD 817
Re Radge and Commissioner of Taxation [2007] AATA 1317
SECONDARY MATERIALS
Nil
REASONS FOR DECISION
Member, D Connolly
2 March 2022
BACKGROUND

The Applicant is a 30-year-old woman who has been diagnosed with Down Syndrome, Oppositional Defiant Disorder, Moderate Intellectual Disability, Moderate Speech Delay, Anxiety and Depression. On 1 December 2020, the statement of supports under her plan was approved pursuant to subsection 33(2) of the National Disability Insurance Scheme Act 2013 (‘NDIS Act’). The Applicant lodged a request for internal review under section 100 of the NDIS Act, seeking numerous supports. On 7 March 2021, the Respondent determined those supports did not satisfy the reasonable and necessary criteria in section 34 of the NDIS Act. The Applicant is now seeking a review of that decision at the Administrative Appeals Tribunal (‘AAT’).
The application for review was lodged on 27 March 2021. At the time, the Applicant was represented by her mother, Ms A. On 14 July 2021, Ms A advised the Tribunal that her friend, Mr B, a distant relative of the Applicant, would be the recipient of all documents and the representative in this case.
On 27 September 2021, the Tribunal directed that the Applicant attend an in-person assessment by Dr Fernando Roldan, clinical psychologist. Dr Roldan assessed the Applicant on 5 October 2021 in accordance with instructions set out in a letter dated 30 September 2021 (the instruction letter). The Applicant attended the assessment with Ms A and an unidentified gentleman, who was presumably Mr B, as the Respondent had previously indicated in their instruction letter that they anticipated he would be attending along with Ms A. Subsequently, at case conferences and by email, Mr B sought information relating to the instruction letter and the assessment. His various submissions indicate he believed he had not been provided with all the information sought. This led to his request for the summons to be issued.
The summons
After the most recent case conference on 10 January 2022 (there have been five), the Applicant’s representative requested that the Conference Registrar issue Ms Miller, the legal representative for the Respondent, with a summons to produce documents, including publicly available information provided by the Respondent in attachments to the instruction letter. In summary, the information requested is as follows:
(a)copy of the information relating to confidential information and data breach notifications;
(b)copy of the AAT’s Guidelines on persons giving expert opinion evidence, including Clause 9;
(c)copy of all formal results and minutes of the meeting between Dr Roldan the Applicant and the Applicant’s representative on 5 October 2021;
(d)copy of NDIS Operational Guidelines – Planning;
(e)copy of NDIS (Supports for Participants) Rules 2013; and
(f)copy of the “extensive NDIS Policy”, referred to in the instruction letter.
On 17 January 2022, the Conference Registrar issued the summons, requiring the Respondent’s legal representative to produce those documents to the AAT, returnable on 2 February 2022. The AAT’s Registry emailed summons listing notices to the parties, advising of the summons to produce documents. However, the email to the Respondent did not include a copy of the summons. Meanwhile, the Applicant’s representative was provided with a signed and sealed copy of the summons and advised that the Applicant must serve the Respondent with the summons to produce documents.
The Respondent’s response to the summons
On 24 January 2022, another legal representative for the Respondent contacted the Registry advising that Ms Miller was on leave and had not yet been served the summons by the Applicant. The legal representative also advised that the Respondent anticipated, once the summons was properly served, that they would be objecting to the summons.
On 27 January 2022, the Registry wrote to the Applicant’s representative advising the Applicant needed to serve the Respondent with the summons to produce documents, as per the instructions given when the Tribunal issued the summons on 17 January 2022.
On 2 February 2022, the Applicant wrote to the Tribunal stating that the legal representative for the Respondent had not complied with the summons and requested a directions hearing. The Tribunal listed the matter for an interlocutory hearing on 17 February 2022.
In response to the listing notice, on 14 February 2022, the Respondent made the following written submissions, providing documentation supporting those submissions and sharelinks (shareable links) (which the Tribunal, for security policy reasons, was not able to access).
The Respondent provided the following chronology of the events that occurred from when the summons was issued:
·On 17 January 2022, the Respondent received notice from the Tribunal that it had issued a summons at the Applicant’s request, which required the Respondent’s legal representative, Ms Miller, to produce documents by 2 February 2022.
·On the same day, the Respondent emailed the Tribunal, requesting a copy of the summons as the Applicant, who is represented by someone without a legal background, had not served it. The request was followed up with phone calls to the Tribunal on 19 and 21 January 2022. A Tribunal case officer advised that it was the Applicant’s responsibility to serve the summons, and would not provide a copy.
·On 24 January 2022, the Respondent emailed the Tribunal, copying the Applicant, advising that it had still not been served with the summons, and in the event that the Respondent was properly served, it was anticipated there would be an objection to its issue.
·The Applicant did not serve the Respondent with the summons prior to the return date. (The Tribunal’s records indicate that on 27 January 2022, the Applicant attempted to serve the Respondent with the summons but sent it to the wrong email address. The Applicant, therefore, did not serve the Respondent with the summons prior to the return date).
·On 2 February 2022, the summons return date, the Respondent received emails from the Applicant’s representative, which enclosed the summons request, requesting the matter be listed for a directions hearing in light of the Respondent’s alleged non-compliance.
·The Respondent advised that the Applicant had previously requested the documents sought in the summons, by email dated 10 January 2022. The Respondent provided information indicating those documents were provided to the Applicant and the Tribunal on 17 January 2022.
·In light of the above, the Respondent submitted that an interlocutory hearing was not required and suggested that the summons should be discharged. The Respondent took issue with the Applicant requesting a summons be issued, rather than relying on the Respondent’s response to the Applicant’s request of 10 January 2022. The Respondent expressed concern that there was nothing to be gained from an interlocutory hearing and sought for it to be vacated.
On 15 February 2022 the Tribunal wrote to the Respondent, copying in the Applicant, advising that the Tribunal had considered the request to vacate the interlocutory hearing on 17 February 2022, taking into account the information indicating the documents requested in the summons had already been provided. It advised, however, that it proposed to continue with the hearing, in part to hear the parties’ view on whether the summons should be set aside. It explained that it may be the case that the Respondent could provide assistance to the Tribunal in clarifying the provision of the material sought, as the Tribunal was not able to access the sharelink provided by the Respondent. The Tribunal explained that it was considering whether it was appropriate to set aside the summons and, if necessary, make directions about the production of information. It indicated that if the Respondent still did not think there was utility in their attendance, the Tribunal would excuse their non-appearance.
The Respondent informed the Tribunal that they would attend the hearing and emailed to the Tribunal the available documents sought, in PDF format.
The Applicant’s submissions regarding the summons
In response, the Applicant’s representative provided a written submission outlining, among other things, why he thought the Tribunal should find the Respondent had not complied with the summons. He set out the background to his request for the summons which relates to an independent assessment by Dr Roldan. He stated he believed Dr Roldan had relied on materials and information attached to the instruction letter, undisclosed by the Respondent to the Applicant. He stated he sought this information in an email to the Respondent and the Tribunal on 24 December 2021. He did not receive a response. He referred to discussions about this issue at a case conference on 10 January 2022 at which the Conference Registrar directed the Applicant to provide further evidence by 31 January 2022. He stated he was unable to prepare that evidence without the information provided to Dr Roldan which he believed had not been disclosed to the Applicant. He again sought any undisclosed information. He stated that, during the case conference, the Respondent indicated the undisclosed material would be dealt with at the hearing. After the case conference, on 10 January 2022, he emailed the Tribunal requesting that the summons to produce documents be issued. He then emailed Ms Miller advising he had requested the Respondent provide the undisclosed information but had not received it.
The Applicant stated that on 17 January 2022, he received an email from the Tribunal, along with the signed and sealed summons attached. He understood that if there was any objection to the summons it must be expressed by 31 January 2022. On the same day, he received an email from the Respondent’s legal representative in which she explained that, due to the size of the documents sought, she was unable to send them as PDFs. She provided a sharelink for the Applicant to access and download the documents, the instruction letter to Dr Roldan and four other documents. The Applicant’s representative questioned whether the instruction letter provided by her was the same as that provided to the Tribunal and the Applicant on 23 December 2021.
The Applicant’s representative stated “there are evidential and inadmissibility issues, the Applicant cannot disclose it now”. The Applicant’s representative declined to expand on this claim at the hearing.
The Applicant’s representative indicated he had asked that the documents be provided directly to him to avoid the delay of the summons process. He questioned whether he could rely on the sharelink for the Respondent’s website as evidence, as the material could be changed from time to time and there was no guarantee those documents were the same as those sent to Dr Roldan, stating he needed to “rely on evidence to make my defence and my statements.”
The Applicant’s representative observed that while the Respondent’s legal representative anticipated an objection to the summons on 24 January 2022, she did not give reasons and did not lodge the objection.
The Applicant’s representative stated that, on 14 February 2022, the Respondent’s legal representative emailed the Applicant and the Tribunal justifying her reasons for not complying with the summons. He disputed her claim to have already provided the documents.
The Applicant’s representative noted that the Tribunal was unable to access the documents via the sharelink and that the Respondent had uploaded the sought documents. However, he questioned why those documents were not provided when he made his request on 24 December 2021.
The Applicant’s representative referred to section 68 of the Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’), providing for the giving of documents, and Rule 17 of the Administrative Appeals Tribunal Regulation 2015 (‘AAT Regulations’), prescribing the manner in which a document is to be given. He referred to the summons and noted that, while the Respondent had emailed the documents to the Tribunal on 15 February 2022, he was not satisfied that those were the same documents provided to Dr Roldan on 30 September 2021. He submitted therefore that the Respondent has failed to comply with the summons, in accordance with section 61 of the AAT Act. He stated his view that the Respondent had breached its obligation to act in good faith.
LEGAL FRAMEWORK
The power of the Tribunal to issue a summons to produce documents is set out in section 40A of the AAT Act, providing as follows:
Power to summon person to give evidence or produce documents
(1) For the purposes of a proceeding before the Tribunal, the President, an authorised member or an officer of the Tribunal may summon a person to do either or both of the following, on the day, and at the time and place, specified in the summons:
(a) appear before the Tribunal to give evidence;
(b) produce any document or other thing specified in the summons.
Note: This section does not apply in relation to proceedings in the Social Services and Child Support Division, as a result of provisions in the enactments that authorise applications for reviews that will be heard in that Division.
(2) The President or an authorised member may refuse a request to summon a person.
(3) A person may, before the day specified in the summons, comply with a summons to produce a document or thing by producing the document or thing at the Registry from which the summons was issued. If the person does so, the person is not required to attend the hearing of the proceeding unless:
(a) the summons or another summons requires the person to appear before the Tribunal; or
(b) the Tribunal directs the person to attend the hearing.
The manner in which documents are to be given is provided for in section 68 of the AAT Act which states as follows:
Giving documents
(1) A document or thing that is required or permitted by this Act or another enactment to be lodged with, or given to, the Tribunal must be lodged or given in accordance with:
(a) any direction under section 18B; or
(b) regulations made under this Act or the other enactment.
(2) A document that is required or permitted by this Act or another enactment to be given to a person for the purposes of a proceeding before the Tribunal must be given to the person in accordance with:
(a) any direction under section 18B; or
(b) regulations made under this Act or the other enactment.
(3) A direction given under section 18B for the purposes of paragraph (1)(a) or (2)(a) must not be inconsistent with regulations in force for the purposes of paragraph (1)(b) or (2)(b).
(4) Subsections (1) and (2) do not apply to the extent to which this Act or another enactment specifies how a document or thing is to be lodged with or given to the Tribunal, or given to a person, for the purposes of a proceeding before the Tribunal.
Rule 17 of the AAT Regulations provides as follows:
Giving documents to a person
(1) For subsection 68(2) of the Act, this section prescribes the manner in which a document is to be given to a person for the purposes of a proceeding before the Tribunal.
Note: This section does not apply to the extent to which the Act or another enactment specifies how a document is to be given to a person for the purposes of a proceeding before the Tribunal (see subsection 68(3) of the Act).
(2) A document is to be given to the person:
(a)if the Tribunal has ordered that the document be given in a specified manner—in accordance with the order; or
(b) in accordance with subsections (3) to (7) as applicable.
Giving documents to a person with address for documents
(3) If a person has an address for documents, a document may be given to the person by:
(a) leaving the document in a sealed envelope addressed to the person at that address; or
(b) sending the document by pre‑paid post addressed to the person at that address; or
(c) sending the document to a DX address, fax number, email address or other electronic address included in the person’s address for documents.
Giving documents to individuals
(4) A document may be given to an individual by:
(a) handing the document to the individual; or
(b) putting the document down in the person’s presence and telling the individual the general nature of the document; or
(c) sending the document by pre‑paid post addressed to the individual to the last known address of the place of residence or business of the individual; or
(d) leaving the document in a sealed envelope addressed to the individual at the last known address of the place of residence or business of the individual.
Giving documents to corporations
(5) A document may be given to a corporation:
(a) by leaving the document in a sealed envelope addressed to the corporation at the head office, a registered office or a principal office of the corporation; or
(b) by sending the document by pre‑paid post addressed to the corporation to the head office, a registered office or a principal office of the corporation; or
(c) if the corporation is a company within the meaning of section 9 of the Corporations Act 2001—in any way allowed by section 109X of that Act; or
(d) in any other way that is allowed under:
(i) a law of the Commonwealth or of the State in which the document is to be given; or
(ii) a Norfolk Island enactment if the document is to be given in Norfolk Island.
Giving documents to government agencies
(6) A document may be given to a government agency by:
(a) sending the document by pre‑paid post addressed to the agency; or
(b) leaving the document in a sealed envelope addressed to the agency at an office of the agency.
Giving documents to unincorporated associations
(7) A document may be given to a person representing an unincorporated association by:
(a) sending the document by pre‑paid post addressed to the association; or
(b) leaving the document in a sealed envelope addressed to the association:
(i) at the association’s principal place of business or principal office; and
(ii) with a person who is apparently an officer of, or in the service of, the association.
There is no power in the AAT Act expressly authorising the setting aside of a summons once issued. However, section 33(3) of the Acts Interpretation Act 1901 provides:
Where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws) the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.
This provision has been interpreted as authorising the Tribunal to set aside a summons.[1]
[1] Re Perpetual Trustee Co (Canberra) Ltd and Commissioner for ACT Revenue (1993) 29 ALD 817; Re Bird and Military Rehabilitation and Compensation Commission (2006) 91 ALD 691; [2006] AATA 109.

It has also been acknowledged that when the Tribunal exercises its powers in relation to the issuing and setting aside of summonses, the principles which apply to the issuing of subpoenas by courts are relevant.[2]
[2] Cosco Holdings Pty Ltd v Commissioner of Taxation & Anor [1997] FCA 1504.
CONSIDERATION
At the hearing, the Respondent’s legal representative confirmed that the documents described at paragraph 4(a), (b), (d), (e) and (f) of these written reasons have been provided to the Tribunal and the Applicant. She confirmed that the Respondent does not have minutes of the meeting between Dr Roldan, the Applicant and the Applicant’s representative on 5 October 2021 (described at paragraph 4(c)).
The Tribunal notes the issued summons required the Respondent’s legal representative to produce those documents to the AAT in accordance with the Applicant’s representative’s request. It notes, however, that the Applicant’s representative has also referred to the Respondent being summonsed. The Tribunal has concluded that, while the summons was issued to Ms Miller as the Respondent’s legal representative, it was effectively seeking documents from the Respondent and not documents personally held by Ms Miller. Accordingly, it considers the summons to have been issued to a party in these proceedings.
At the hearing, the Tribunal raised its concern that the Conference Registrar had issued a summons requesting the Respondent’s legal representative provide documents, including publicly accessible information. It explained that it may be of the view it is not appropriate to use the Tribunal’s power to summons to obtain documents from the parties themselves, particularly when the information is publicly available. It explained that the Tribunal has powers under section 37 of the AAT Act to direct parties to provide information and it may form the view that this is a more appropriate means by which the Tribunal could direct the Respondent to provide information to the Applicant. It explained that it was considering setting aside the summons. It gave the parties an opportunity to comment on its preliminary view that the summons should be set aside. The Respondent indicated that it was in the Tribunal’s hands.
The Applicant’s representative explained that he wanted the documents which had been sent to Dr Roldan. He had asked for these and was sent a sharelink, which he did not believe was adequate for the purposes of providing evidence, or that it complied with the requirements of section 68 of the AAT Act and Rule 17 of the AAT Regulations. He raised his concern about the Respondent’s credibility but declined to expand on this concern. He asked the Tribunal to find that the Respondent had not complied with the summons issued on 17 January 2022.
The Tribunal has taken into account the Applicant’s representative’s submissions indicating he had asked for certain documents, in particular those that were attached to the instruction letter. The Respondent has told the Tribunal that it has provided those documents, save the minutes of the meeting between Dr Roldan, the Applicant and the Applicant’s representative, which it does not have. The Applicant’s representative has indicated he thinks the Respondent is withholding information but, when invited to at the hearing, declined to expand on this claim. The Tribunal is not satisfied the Respondent is withholding information.
The Applicant’s representative has also raised his concern about the provision of the information by sharelink. The Respondent addressed this by emailing PDF files to the Applicant and Tribunal. The Tribunal is satisfied the Respondent has provided the documents available, sought in the summons.
In ReRadge and Commissioner of Taxation [2007] AATA 1317 (‘Re Radge’), Deputy President Forgie said:
[76] The point of the power to issue a summons is to ensure that the parties, and ultimately the Tribunal, can gain access to all material relevant to the review of the decision. If a party already has access to documents, it is questionable whether there is any point in requesting the same documents under a summons….
[78] (G)enerally, I do not consider it appropriate to use the Tribunals’ power to summons documents to obtain documents from the parties themselves. It is a power that should generally be reserved to obtain documents from third parties. The documents will then be available to both parties as well as to the Tribunal. In the case of the decision-maker, relevant documents will generally be produced under s 37 of the AAT Act. If they are not or if it later appears that there are other documents that may be relevant to the review, the Tribunal has power to order their production under s 37(2). That section has effect notwithstanding any rule of law relating to privilege or the public interest in relation to the production of documents, and so is a more extensive power than that available to the Tribunal under the summons power.
The Tribunal agrees with this view. It also notes that since Re Radge, the AAT Act has been amended to include section 38AA, which provides an ongoing requirement for the decision maker to direct that parties lodge relevant documents with the Tribunal.
CONCLUSION
The Tribunal is not satisfied it was appropriate for the Conference Registrar to exercise the discretion in section 40A of the AAT Act to summons Ms Miller, the Respondent’s legal representative, to produce documents. It is also of the view it was not appropriate to use this power to summons publicly accessible information. If the Conference Registrar formed the view that there were documents relevant to the review, held by the Respondent’s legal representative, which had not been made available, the Conference Registrar was entitled to direct the Respondent under section 37 of the AAT Act to produce those documents. This is the preferable discretion. The Tribunal is of the view the Conference Registrar chose the wrong method to require the Respondent to produce further documents.
In these circumstances, the summons should be set aside.
The Tribunal has considered the Applicant’s request that it find the Respondent has not complied with the summons issued on 17 January 2022. As the summons is set aside, the Respondent is not required to comply with it. Accordingly, the Tribunal does not find the Respondent has not complied with the summons.
DECISION
The summons issued on 17 January 2022 is set aside.

I certify that the preceding 38 (thirty-eight) paragraphs are a true copy of the reasons for the decision herein of Member, D Connolly

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Associate
Dated: 2 March 2022

Date(s) of hearing: 17 February 2022

Advocate for the Applicant: Mr B

Solicitors for the Respondent: Ms S Miller, Sparke Helmore

Date(s) of hearing:	17 February 2022
Advocate for the Applicant:	Mr B
Solicitors for the Respondent:	Ms S Miller, Sparke Helmore