LSDG and Minister for Immigration and Border Protection (Migration)
[2016] AATA 55
•4 February 2016
LSDG and Minister for Immigration and Border Protection (Migration) [2016] AATA 55 (4 February 2016)
Division
General Division
File Number
2014/6365
Re
LSDG
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Professor Robert Deutsch, Deputy President
Date 4 February 2016 Place Sydney The Tribunal sets aside the summons to appear to give evidence issued to Mr Giorgiutti on 27 April 2015 on the ground that it lacks a legitimate forensic purpose.
.............................[sgd]...........................................
Professor Robert Deutsch, Deputy President
CATCHWORDS
PRACTICE AND PROECEDURE – summons to appear to give evidence – application to have summons set aside – whether summons has legitimate forensic purpose – summonsed evidence must materially assist case – summons set aside
CASES
Alister v R (1984) 154 CLR 404
ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307
REASONS FOR DECISION
Professor Robert Deutsch, Deputy President
4 February 2016
INTRODUCTION
The substantive issue in this case is in regard to the refusal by the Respondent to issue a visa of a particular designated class to the Applicant. The Respondent argues that this was the correct and preferable decision and the Applicant takes the opposite view.
The issues relating to that matter will be ventilated in a hearing to be held in February 2016. In the interim, at the request of the Applicant, on 27 April 2015 the Tribunal issued a summons to appear and give evidence to Mr John Giorgiutti, a former solicitor and legal officer of the NSW Crime Commission (the ‘Commission’). The Respondent, and by leave the Commission, both applied to have the issue of that summons set aside. Both parties and the Commission were afforded the opportunity to provide written and oral submissions in relation to this application.
The only issue for determination by this Tribunal is the interlocutory question of whether that summons should now be set aside or not.
GROUNDS FOR SETTING ASIDE THE SUMMONS
Although not expressed by the parties in this manner, the grounds to set aside the summons in this case appear to be based on three possible arguments:
(a)First, the summons should be set aside as an abuse of process since it lacks a legitimate forensic purpose.
(b)Secondly, the summons should be set aside as compliance with the summons would require Mr Giorgiutti to put himself in a position where he may be in breach of section 80 of the Crime Commission Act 2012 (NSW) (or its predecessor). This arises because the summons seeks to compel Mr Giorgiutti to attend and give evidence in relation to matters pertaining to the processes and procedures of the Commission over a period of some 20 years.
(c)Thirdly, the summons should be set aside because any evidence sought to be adduced by Mr Giorgiutti could not be provided as it is subject to legal professional privilege.
If any of these arguments on their own apply, the summons must be set aside.
DOES THE SUMMONS LACK A LEGITIMATE FORENSIC PURPOSE?
The Applicant seeks to establish the existence of a legitimate forensic purpose based on the view that the summons may assist the Applicant:
(a)to obtain material of value for cross-examination;
(b)by giving evidence relating to the credibility of the Minister’s witnesses;
(c)by giving evidence commenting on the documents created by the Commission.
According to oral submissions made to the Tribunal on 7 May 2015 by Senior Counsel for the Applicant, the purpose of the summons is :
“[F]or Mr Giorgiutti to be able to provide evidence to, and information to us about the processes, procedures in the Crime Commission over all this 20 year period. It’s information-gathering function, what function it takes to ascertain the reliability of such things it may get hold of, what function it has in disseminating that material and, in short, as to the internal operations of the New South Wales Crime Commission as well as what is considered to be the ambit of the restraint on providing information about such things”.
The principles settled at common law in relation to the issue of subpoenas have been consistently applied by this Tribunal in relation to the issue of summons. Consequently, it is necessary for the Applicant to establish that it “is on the cards” (in the sense referred to in Alister v R (1984) 154 CLR 404 at 414 per Gibbs J) that Mr Giorgiutti is likely to give evidence which will materially assist the Applicant’s case: ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307 at [13].
Both in relation to the possibility that Mr Giorgiutti could give evidence which would assist the Applicant in gaining material for cross-examination and which would relate to the credibility of the Minister’s witnesses, the Tribunal considers the issuing of the summons to be broadly of a speculative nature.
The Applicant has not made reference to any specific matters possible avenues of cross-examination that may be unearthed from the evidence Mr Giorgiutti might give. At the least the Tribunal would expect to see some detail as to the exact nature of the lines of cross-examination and an explanation as to the exact way in which the responses might assist.
The Applicant has also not identified any basis that would allow the Tribunal to find that Mr Giorgiutti could give specific relevant evidence as to the credit of the Minister’s proposed witnesses. There are only the most general of statements in the Applicant’s written submissions to the effect that Mr Giorgiutti worked in the same organisation as a number of other relevant witnesses. Beyond that there is no indication as to exactly how the evidence of Mr Giorgiutti might assist in this regard. Again, the Tribunal would expect to be provided with some detail as to the association and how that might assist in having the Applicant challenge the credit of the witnesses in question.
Finally, there is no suggestion that Mr Giorgiutti had any direct or even indirect involvement in the creation of the relevant documents. On the material before me, it is not even clear that Mr Giorgiutti has any knowledge of the existence of these documents.
Thus, the Tribunal concludes that the issue of the summons is speculative in nature and to allow it to stand in these circumstances would be such as to allow the Applicant to persist in a speculative fishing exercise. It is not “on the cards” that Mr Giorgiutti will be or is likely to be able to give evidence which would materially assist the Applicant on an identified material issue.
That is sufficient to dispose of this interlocutory matter. It is not necessary for the Tribunal to consider the other matters raised in this application.
DECISION
The summons to appear to give evidence issued to Mr Giorgiutti on 27 April 2015 is set aside on the ground that it lacks a legitimate forensic purpose.
I certify that the preceding 15 (fifteen) paragraphs are a true copy of the reasons for the decision herein of Professor Robert Deutsch ...........................[sgd].............................................
Associate
Dated 4 February 2016
Dates of hearing 7 and 8 September 2015 Counsel for the Applicant The Hon. G James QC and Mr J King Solicitors for the Applicant Ren Zhou Lawyers Counsel for the Respondent Mr P Knowles Solicitors for the Respondent Australian Government Solicitor Counsel for the NSW Crime Commission Ms N Sharp Solicitors for the NSW Crime Commission NSW Crown Solicitors Office
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