PRACTICE AND PROCEDURE – summons – objection to summons – whether summons have the possibility of relevance – fishing expedition – no adjectival relevance – summons set aside

Legislation

Administrative Appeals Tribunal Act 1975; s40A

Administrative Appeals Tribunal Regulation 2015

Safety, Rehabilitation and Compensation Act 1988

Cases

Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN(NSW) 250

Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984] 3 NSWLR 98

Comcare v Maganga [2008] FCA 285; (2008) 47 AAR 487; 101 ALD 68

Compsyd Pty Ltd v Streamline Travel Service Pty Ltd (1987) 10 NSWLR 648

Cosco Holdings Pty Ltd v Commissioner of Taxation [1997] FCA 1504; (1997) 37 ATR 432
Hamilton v Oades (1989) 85 ALR 1
Hunt v Wark (1985) 40 SASR 489
Re Becker and Minister for Immigration and Ethnic Affairs [1977] AATA 12; (1977) 1 ALD 158; 15 ALR 696
Re General Merchandise & Apparel Group Pty Ltd and the Chief Executive Officer of Customs [2009] AATA 988; (2009) 114 ALD 289; 51 AAR 1; 78 ATR 221
Re QT97/35-36 and Commissioner of Taxation [1997] AATA 339; (1997) 37 ATR 1036
Trade Practices Commission v Arnotts Ltd (1989) 88 ALR 90
Re Trade Practices Commission v Kimberley Homes Pty Limited [1989] FCA 262
Waind and Hill v National Employers’ Mutual General Association Ltd [1978] 1 NSWLR 372
Wilson v Minister for Aboriginal and Torres Strait Islander Affairs [1996] HCA 18; (1996) 189 CLR 1
Witness v Marsden [2000] NSWCA 52; (2000) 49 NSWLR 429

REASONS FOR DECISION

Deputy President S A Forgie

Under s 40A of the Administrative Appeals Tribunal Act 1975 (AAT Act) Comcare requested the Tribunal to issue a summons to The Proper Person Medicare Australia (Medicare) to produce:
“A Medicare claims history report and pharmaceutical claims history report detailing all claims and benefits made in relation to Mr David Jones … from 1 January 1984 to present.”

An officer of the Tribunal[1] issued the summons. Mr Jones’ solicitors objected to the summons on the bases that, without an explanation of its specific relevance to the issue in dispute, it is fishing and, in any event, its disclosure is prohibited by s 135A of the National Health Act 1953 (NH Act).[2] His solicitors have conceded that their objection based on s 135A could not succeed.
[1] An “officer of the Tribunal” means the Registrar or a person appointed as an officer under s 24PA: AAT Act; s 3(1).
[2] In summary, s 135A(1) provides that a person shall not, except in the performance of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Jones and Comcare (Compensation)

Details

AGLC: Jones and Comcare (Compensation) [2019] AATA 5407
Case: [2019] AATA 5407
Decision Date: 10 December 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an objection to a summons issued in proceedings between Mr Jones and Comcare. Mr Jones sought to have the summons set aside.

The primary legal issue before the Tribunal was whether the summons had the possibility of relevance to the proceedings, or if it constituted an impermissible "fishing expedition."

Deputy S A Forgie P reasoned that for a summons to be valid, the documents sought must have a demonstrable relevance to the issues in dispute. The Tribunal found that the summons, as issued, lacked any adjectival relevance to the matters before it. Consequently, the summons was set aside.

Orders