MICHAEL RODSTED and REPATRIATION COMMISSION

[2009] AATA 403

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 403

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S 200400235

VETERANS' APPEALS DIVISION		)
Re		MICHAEL RODSTED

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Deputy President D G Jarvis
Mr S Ellis, AM, Member

Date3 June 2009

PlaceAdelaide

Decision The tribunal decides that it will not require Commodore Mulcare to produce to the tribunal a copy of a report he prepared into an event in relation to a scare charge that occurred in 1969 on HMAS Vendetta.  

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Deputy President

CATCHWORDS

PRACTICE AND PROCEDURE – Summons to produce documents – Ruling by tribunal that it will not direct witness to produce document – tribunal will not permit issue of summons to produce document.

Veterans’ Entitlements Act 1986 (Cth), s 120(1)

Administrative Appeals Tribunal Act 1975 (Cth), s 33

Mt Gibson Manager Pty Ltd v Commissioner of Taxation (1998) 81 FCR 335

REASONS FOR DECISION

3 June 2009   Deputy President D G Jarvis
  Mr S Ellis, AM, Member       

1.      During the hearing of this matter, counsel for the applicant requested the tribunal to direct a witness, Commodore Mulcare, to produce a copy of a report, which the Commodore said he had prepared in relation to an event that occurred in 1969 involving HMAS Vendetta.  The basis of the applicant’s request was that the report would provide evidence of an occasion when a scare charge had not been deployed in accordance with Naval procedures, and that it might give rise to a further line of inquiry into the improper deployment of scare charges.  The tribunal declined the applicant’s request.

2.      Ordinarily it would be inappropriate to provide reasons for a ruling made in the course of a hearing in relation to an issue such as this.  However, in the course of the submissions of counsel for the applicant said that if the respondent did not agree to produce the report, the applicant would issue a summons requiring the production of the report.  The tribunal then further indicated that it would not permit the issue of such a summons.  In these circumstances, and taking into account that the hearing had not concluded, the tribunal intimated that it was prepared to accede to counsel’s request to provide reasons for its ruling before the hearing is scheduled to resume later this month.

3.      The above issue arose from answers by Commodore Mulcare in the course of his cross-examination on 3 April 2008 to the effect that he had heard of a scare charge going off close to the hull of a Daring class ship in the demilitarised zone off Vietnam, and that there might be some vibration if a scare charge were dropped a couple of feet from the hull.

4.      When he was further cross-examined, on 28 May 2009, being the 15^th day of what has become a very protracted hearing, Commodore Mulcare said that the 1969 incident involved HMAS Vendetta, that he had heard rumours about it that he had been unable to substantiate, but then heard from one officer on the Vendetta that the incident had occurred, and he regarded this officer as reliable.  He said that the officer of the watch had “heard at one stage – he had a query at one stage from the engine room after a fairly loud explosion, ‘What the hell was that,’ and he didn’t know, but subsequently it turned out it was scare charge.” (transcript 28.05.09, page 1119, line 6).

5.      After the tribunal indicated that it was not prepared to accede to a request by counsel for the applicant to direct Commodore Mulcare to produce a copy of the report, the tribunal gave counsel for the respondent an opportunity to obtain instructions on whether the respondent was prepared to produce the report.  The tribunal was told that the respondent declined to do so, and that the respondent maintained that the event on the Vendetta and the report were irrelevant to the issues before the tribunal in the present matter.

6. The tribunal is mindful that the applicant’s claim relates to his operational service, and must accordingly be determined by reference to the provisions of s 120(1) of the Veterans’ Entitlements Act 1986 (Cth). Nevertheless, the tribunal’s provisional view is that the 1969 event is potentially of marginal relevance only to the issues before the tribunal, having regard to the fact that the event occurred on a different vessel, in a different location and approximately three years after the occurrence of the scare charge stressor asserted by the applicant.

7.      The tribunal took into account that the production of the report prepared by Commodore Mulcare in relation to the 1969 event might add to the information that Commodore Mulcare has already given about the event in his evidence in the present proceedings, as set out in paragraphs 3 and 4 above.  In considering the applicant’s request to direct Commodore Mulcare to produce the report, it was necessary for the tribunal to balance the utility of receiving some further information about the 1969 event against the potential disadvantages of making the direction sought.  Those disadvantages included: (a) the potential that the completion of Commodore Mulcare’s evidence would have been further delayed by his having to search for and obtain a copy of the report, and then for it to be inspected by both parties; (b) further potential delay to accommodate investigations that either or both parties might wish to carry out into information that might be contained in the report; and (c) the consequential potential further expansion of the evidence and issues in the within proceedings.

8. Under s 33 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) the procedure of the tribunal is within its discretion, and the proceeding is to be conducted with as much expedition as the requirements of relevant legislation, including that Act, and a proper consideration of the matters before the tribunal permit. The tribunal refers to the comments of French J as he then was in Mt Gibson Manager Pty Ltd v Commissioner of Taxation (1998) 81 FCR 335 at 343, where after discussing s 33(1)(c) of the AAT Act, his Honour said that the tribunal was not “required to accept material which, while strictly relevant, is of little or no probative value.” In addition, the tribunal is required to observe the objective referred to in s 2A of the AAT Act, which refers (inelegantly, and amongst other considerations) to a “quick” mechanism for review.

9.      After weighing up the above considerations, the tribunal considered that for the reasons referred to above, the possibility of obtaining additional information in relation to the 1969 event that might supplement the evidence already provided by Commodore Mulcare by requiring the production of the report should not be pursued, having regard to the marginal relevance of the event, and because any possible benefit of obtaining such additional information was outweighed by the disadvantages referred above.  The tribunal accordingly decided that it was not appropriate to accede to the applicant’s request.

10.     The tribunal is also mindful of issues of confidentiality, and further, if the 1969 report related to proceedings in this tribunal, the implied undertaking (that would apply to the respondent) not to disclose information or material obtained in those proceedings in other proceedings, and not to use it for a collateral purpose.  The tribunal considered that the further complexities raised by these further potential issues did not warrant the obtaining of any further information about the 1969 event that might be revealed by the contents of the report.

11.     As mentioned above, counsel for the applicant also said that the applicant would issue a summons for the production of the report into the 1969 event if the respondent refused to produce it, and the tribunal intimated that it would not permit this.  The tribunal’s reasons for this intimation are the same as the reasons that led to the tribunal declining to require Commodore Mulcare to produce a copy of the report into the 1969 event.  It would be inappropriate to allow a summons to be issued for the production of a specified document where that would have the effect of circumventing a ruling previously made by the tribunal to the effect that it was not prepared to direct a witness to produce the document in question to the tribunal.  If the applicant seeks to issue such a summons at this stage of the proceedings, the tribunal will direct the Registrar not to issue it.

I certify that the 11 preceding paragraphs are a true
copy of the reasons for the decision herein of
Deputy President D G Jarvis and Mr S Ellis, AM, Member

Signed:         .....................................................................................
           L. Staker  Associate

Date/s of Hearing  1, 2 and 3 April 2008

7 and 8 July 2008

21 August 2008

16 September 2008

4, 5, 6 and 7 November 2008

17 November 2008

25 and 26 May 2009

27 and 28 May 2009

Date of Decision  3 June 2009
Counsel for the Applicant         Mr M Roberts
Solicitor for the Applicant          Tindall Gask Bentley
Counsel for the Respondent     Mr G Camilos
Solicitor for the Respondent     Australian Government Solicitor