Knight and Commonwealth Ombudsman (Freedom of Information)
[2020] AATA 4480
•16 October 2020
Knight and Commonwealth Ombudsman (Freedom of Information) [2020] AATA 4480 (16 October 2020)
Division: FREEDOM OF INFORMATION DIVISION
File Number: 2017/5456 and 2017/6279
Re:Julian Knight
APPLICANT
AndCommonwealth Ombudsman
RESPONDENT
DECISION
Tribunal: Deputy President S A Forgie
Date of decision: 16 October 2020
Place:Melbourne
The Tribunal decides that:
the power given under s 40A of the Administrative Appeals Tribunal Act 1975 cannot be used to summons documents relating to the applicant’s preparation for these proceedings and stored on computers in the possession of the Port Phillip Prison.
……………[sgd]………………….
Deputy President S A Forgie
Catchwords
PRACTICE AND PROCEDURE – summons – request to issue summons – meaning of for the purposes of a proceeding – whether documents have evidentiary value – requested documents relate to research and development of applicant’s case – no evidentiary value – request to issue summons refused
Legislation
Administrative Appeals Tribunal Act 1975; s 37; s 39; s 40A
Freedom of Information Act 1982
Acts Interpretation Act 1901; s 2B
Cases
Comcare v Maganga [2008] FCA 285; (2008) 101 ALD 68; 47 AAR 487
Lakatoi Universal Pty Limited and Ors v Walker and Ors [1998] NSWSC 470
National Employers' Mutual General Association Limited v Waind and Hill [1978] 1 NSWLR 372
South Pacific Hotel Services Inc v Southern Pacific Hotel Corporation Ltd [1984] 1 NSWLR 710; 2 ACLC 483
Trade Practices Commission v Arnotts Limited [1989] FCA 248; (1989) 21 FCR 206; 88 ALR 90
Secondary Materials
Chambers 21st Century Dictionary (1999, reprinted 2004)
REASONS FOR DECISION
Deputy President S A Forgie
Mr Julian Knight is incarcerated in Port Phillip prison. He has lodged two applications for review in the Tribunal but states that he has been unable to gain access to a computer in the possession of the Port Phillip Prison and on which he had stored his case documents and draft submissions. Consequently, he had been unable to comply with a direction to lodge further material in support of his case in the Tribunal. During a directions hearing to consider how the matter could proceed, Mr Knight asked for assistance in obtaining access to the material on the computer. The Tribunal’s summons power was explored as to whether it could be a means of obtaining Mr Knight’s submissions. I have decided that s 40A of the Administrative Appeals Tribunal Act 1975 (AAT Act) does not authorise me to issue a summons to the authorities at the Port Phillip Prison.
BACKGROUND
Mr Julian Knight has applied for review of two decisions made by the Australian Information Commissioner (Information Commissioner) on 31 August 2017[1] (first IC decision) and 4 October 2017[2] (second IC decision) under s 55K of the Freedom of Information Act 1982 (FOI Act). The first IC decision affirmed a decision made by the Secretary of the Attorney-General’s Department (AGD) on 17 October 2016 that three documents, to which Mr Knight had requested access, were partially exempt under s 47F of the FOI Act. The second IC decision varied a decision made by the Commonwealth Ombudsman (Ombudsman) on 4 October 2016 in so far as it found that an envelope was outside the scope of Mr Knight’s request rather than exempt under s 47F. Otherwise, the IC Commissioner affirmed the Ombudsman’s decision. I note that the respondent in both cases is the Ombudsman because he assumed responsibility from the AGD for the functions of the body to whose documents Mr Knight sought access under the FOI Act.
[1] AAT File No. 2017/5456
[2] AAT File No. 2017/6729
On 30 October 2019, I directed that the two applications be heard together and that the respondents lodge documents under s 37 of the AAT Act and, before 11 December 2019, lodge statements of evidence from all witnesses they propose to call at the hearing, all reports, records and any other documents on which they intend to rely at the hearing and a Statement of Facts, Issues and Contentions. I also directed Mr Knight to lodge, by 20 January 2020, statements of evidence from all witnesses they propose to call at the hearing, all reports, records and any other documents on which they intend to rely at the hearing and a Statement of Facts, Issues and Contentions. The Ombudsman could lodge any further material in reply by 10 February 2020.
On 6 January 2020, Mr Knight wrote to the Tribunal advising that he could not comply with the direction. He wrote that he could not do so because, on 21 November 2019, the management at Port Phillip Prison had withdrawn his access to a computer containing his case documents and draft submissions. Mr Knight said that he had made repeated requests that the decision be reversed but without success.
At the directions hearing I held following receipt of Mr Knight’s letter, Mr Knight said that he had had access to a computer for the previous two years. He said that he did not need it for a civil matter but then elaborated that there had been no access to the internet or other legal resources at Port Phillip Prison since a major fire at the prison in 2017. Mr Knight said that he had applied to the Supreme Court for review of that decision but described the progress of his case as “glacial”.
TRIBUNAL’S POWER TO ISSUE A SUMMONS
The power to issue a summons under s 40A(1) of the AAT Act is a discretionary power.[3] In so far as it is relevant, s 40A(1) of the AAT Act provides:
“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: …”
[3] AAT Act; s 40A(3)
CONSIDERATION
Section 40A(1)(b) of the AAT Act authorises the President, an authorised member or an officer of the Tribunal to summon a person to produce any “document or other thing” specified in the summons “for the purposes of a proceeding”. Beginning with the word “document”, the respondents submitted that it is wide enough to encompass those held in digital form. They relied on s 2B of the Acts Interpretation Act 1901 (AI Act), which provides:
“document means any record of information, and includes:
(a)anything on which there is writing; and
(b)anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; and
(c)anything from which sounds, images or writings can be reproduced with or without the aid of anything else; and
(d)a map, plan, drawing or photograph.”
The definitions in s 2B of the AI Act are subject to any contrary intention shown in the relevant enactment. In my view, the AAT Act does not indicate any contrary intention. Indeed, it is drafted in very broad terms to ensure that the power can require the production of “any document or other thing” for the purposes of a proceeding.
The next task is to identify the proceeding in relation to which a person may be summonsed. The term “proceeding” is defined in very wide terms in s 3(1) but, in this case, the relevant meaning is the first: “an application to the Tribunal for review of a decision”.[4] What is meant by a summons being “for the purposes of” that proceeding? “Purpose” is “… the object or aim in doing something … the function for which something is intended …”.[5] If something is “to the purpose”, it is “… relevant; to the point …”.[6] In the context of s 40A(1) and, more generally, in the context of the AAT Act, what will be for the purposes of a proceeding will be what is relevant to that proceeding. That is so if the proceeding is an incidental application such as a proceeding to determine whether the operation or implementation of a decision should be stayed under s 41 or whether an order for confidentiality should be made under s 35. It is equally true if the proceeding is an application to the Tribunal for review of a decision. In each instance, relevance will be determined by the issues that must be determined in the proceeding.
[4] AAT Act; 3(1); paragraph (a)
[5] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers (Chambers)
[6] Chambers
In the case of an application for review of a proceeding, it must be kept in mind that it is a proceeding directed to the review of an administrative decision. Relevance of the material sought to be summonsed will be determined by reference to the issues that must be determined in order for the Tribunal to conduct the review of a particular decision and to decide what decision is, according to law and the evidentiary material, the correct or preferable decision.
This approach is consistent with that taken by Bennett J in Comcare v Maganga[7] (Mananga). Her Honour considered whether the Tribunal had denied Comcare procedural fairness in refusing to give it leave to inspect summonsed documents. One basis on which the Tribunal had refused to give leave was that it had not been shown that the summonsed material was of sufficient relevance because it would not show that Mr Maganga had made an inconsistent statement in giving evidence to the Tribunal. Bennett J said:
“… This is not the correct test. A party seeking to inspect documents does not need to establish, on the basis of probabilities, that the documents will establish anything: Trade Practices Commission v Arnotts (No 2) (1989) 21 FCR 306; 88 ALR 90 per Beaumont J; Telstra Corporation at [47], [52] per Graham J). Rather, the test of relevance is whether the documents relate to the proceedings such that there is a real possibility that they may assist in the resolution of issues in the proceedings: Waind at 384 per Moffitt P; Bailey v Beagle Management Pty Ltd (2001) 105 FCR 136; 182 ALR 264; [2001] FCA 60 at [26].
Further, the test of relevance for the purpose of inspection is not confined to whether the documents in question will or may establish an inconsistent statement by a witness giving evidence in the proceedings or whether the documents themselves will prove a fact in issue. The Court may allow documents to be inspected if they are apparently relevant or are on the subject matter of the litigation (Maronis Holdings Ltd v Nippon Credit Australia Ltd (2000) 18 ACLC 609; [2000] NSWSC 138 at [20] per Bryson J) or if they might be used for a legitimate forensic purpose in cross-examination: Maronis at [18] and [20]; Carter v Hayes SM (1994) 61 SASR 451 at 453, 456-457 per King CJ, Bollen and Mullighan JJ agreeing; R v Spizzirri [2001] 2 QdR 686 at [24] per Pincus JA, White J agreeing. The summonsed documents, prima facie, were relevant to the claimed fourth injury which claim depended, in turn, on Mr Maganga’s credit.”[8]
[7] [2008] FCA 285; (2008) 101 ALD 68; 47 AAR 487
[8] [2008] FCA 285; (2008) 101 ALD 68; 47 AAR 487 at [37]-[38]; 76; 495
Although made in the context of subpoenas in a civil trial, the comments made by Rolfe J in Lakatoi Universal Pty Limited and Ors v Walker and Ors[9] (Lakatoi University case) are equally applicable in the context of summonses in the Tribunal. His Honour said:
“ In determining the question of relevance the Court must bear in mind that the parties are entitled to build up an evidentiary mosaic. Generally that cannot be done, particularly in complicated commercial litigation, by the tender of one piece of evidence or the assertion that only limited material is relevant to the issues involved. Particularly is that so when one must have regard to the desirability of as full a cross-examination as possible, assisted by the availability of documents which will aid that. Both as to issues and the issue of credit the Court should not be astute to find irrelevance at an early stage of the proceedings …”[10]
[9] [1998] NSWSC 470
[10] [1998] NSWSC 470 at 497
Also relevant are the three steps that must be taken issues a subpoena or the Tribunal issues a summons. They were summarised by Moffitt P, with whom Hutley and Glass JJA agreed in National Employers' Mutual General Association Limited v Waind and Hill:[11]
“… [T]here are at least two steps in the procedure of having a third party bring documents to court, and in their use thereafter. Indeed, on a correct view, there are three steps. The first is obeying the subpoena, by the witness bringing the documents to the court and handing them to the judge. This step involves the determination of any objections of the witness to the subpoena, or to the production of the documents to the court pursuant to the subpoena. The second step is the decision of the judge concerning the preliminary use of the documents, which includes whether or not permission should be given to a party or parties to inspect the documents. The third step is the admission into evidence of the document in whole or in part; or the use of it in the process of evidence being put before the court by cross-examination or otherwise. It is the third step which alone provides material upon which ultimate decision in the case rests. In these three steps the stranger and the parties have different rights, and the function of the judge differs.”[12]
[11] [1978] 1 NSWLR 372
[12] [1978] 1 NSWLR 372 at 381
When regard is had to authorities, it is apparent that a summons may be issued for the production of material that may possibly be relevant to the issues that raised by an application for review. As Beaumont J said in Trade Practices Commission v Arnotts Limited,[13] the question becomes whether “… the documentation called for here could possibly throw light on the issues in the main case …”.[14] That is sometimes described in terms of whether the documentation has “adjectival relevance”.[15] What falls withing that category will be decided on a case by case basis. By way of example, it may include material that may have been used in preparing primary evidence such as medical reports or other expert reports that have themselves been summonsed or lodged by the parties and that relate to the issues or that is material that may be used for a legitimate forensic purpose such as cross-examination.
[13] [1989] FCA 248; (1989) 21 FCR 206; 88 ALR 90
[14] [1989] FCA 248; (1989) 21 FCR 206; 88 ALR 90 at 261; 103
[15] [1989] FCA 248; (1989) 21 FCR 206; 88 ALR 90 at 261; 103
I have been unable to find any authority that would permit a subpoena or a summons to be issued for documents that do not have relevance in an evidentiary sense whether that relevance is established in a substantive sense or in an adjectival sense. The documents that Mr Knight seeks are documents that he would wish to rely on in preparing and lodging a Statement of Facts, Issues and Contentions and research he has previously undertaken for the purpose of preparing his submission. Neither, however, is a document having evidentiary value. Although are important to Mr Knight for the purpose of preparing his arguments, I do not think that either can be said to be “for the purposes of a proceeding” within the confines of the summons power conferred by s 40A of the AAT Act.
My conclusion is supported by on the second step described by Moffitt P in the Lakatoi University case. That second step involves consideration of whether or not permission should be given to a party or parties to inspect the documents. That consideration will be carried out against a background of the more general principle that, subject only to confidentiality orders under s 35 of the AAT Act or specific legislative exceptions, the Tribunal must ensure that it must give every party to a proceeding a reasonable opportunity to inspect any documents on which it proposes to make its decision and to make submissions in relation to them.[16] The documents that Mr Knight seeks relate to his own research and the development of the presentation of his own case. It would not be appropriate to require him to disclose them to the Ombudsman.
[16] AAT Act; s 39
In reaching this decision, I note that I have not sought the views of the relevant authorities at the Port Phillip Prison. I have not done so in view of my conclusion that the documents that Mr Knight seeks cannot properly be the subject of a summons. Had I reached a different conclusion, I would have had to give some consideration at least to any issues that might arise for those authorities. That arises from the fact that the power to issue a summons is a discretionary power and I would need to bear in mind principles such as those referred to by Clarke J in South Pacific Hotel Services Inc v Southern Pacific Hotel Corporation Ltd:[17]
“… [T]here is no doubt that a subpoena, particularly one addressed to a stranger, must be couched in terms of reasonable particularity. It may call for the production of such a large number of documents of doubtful possible relevance that it should be regarded as oppressive and an abuse of process: see the example given by Moffitt P in Waind (at 382). If a court is called upon to rule that a subpoena is an abuse of process in this sense, it will need to carry out an exercise of judgment upon the particular facts in each case, including but not limited to the terms of the subpoena, bearing in mind the need to balance the reasonableness of the burden imposed upon the recipient and the invasion of his private rights with the public interest in the due administration of justice and, in particular, that all material relevant to the issues be available to the parties to enable them to advance their respective cases. There is, in every case, a clash between these competing interests and whilst the balancing exercise to which I have referred must be carried out, it is the latter interest which is predominant. If the needs of justice require or could require that a stranger be obliged to carry out a very burdensome task in the collection, transportation and production of a large number of documents, then a subpoena calling upon the stranger to produce those documents will be upheld. …”[18]
[17] [1984] 1 NSWLR 710; 2 ACLC 483
[18] [1984] 1 NSWLR 710; 2 ACLC 483 at 719-720
If I had issued a summons, I note that it was open to the authorities at the Port Phillip Prison to object to the summons. Generally, they would have done so when they produced the documents to the Tribunal. If the objection were on the basis that productions is oppressive, production will not be insisted upon. It will be insisted upon if it is founded on objections such as irrelevance or privilege from production. The Tribunal must hear the objection and decide upon it. In this case, that step has not been reached because I have decided not to issue a summons at all.
DECISION
For the reasons I have given, I have decided that the power under s 40A of the AAT Act cannot be used to summons documents relating to Mr Knight’s preparation for these proceedings and stored on computers in the possession of the Port Phillip Prison.
| I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for the decision herein of Deputy President S A Forgie |
....................[sgd]..................................................
Associate
Dated: 16 November 2020
| Heard: | 10 February 2020 |
| Solicitor for the Applicant: | Self-represented |
| Solicitor for the Respondent: | Ms Christina Graves Minter Ellison |
0
9
0