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.

..............................................
Deputy President

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

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.

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Details

Case: [2009] AATA 403
Decision Date: 3 June 2009

CaseChat Overview and Summary

The case of Michael Rodsted and Repatriation Commission involved a dispute where the Repatriation Commission sought the production of documents from Commodore Mulcare. The Administrative Appeals Tribunal (AAT) was tasked with deciding whether it would order the production of these documents. The primary legal issue before the AAT was whether it had the authority to issue a summons under section 120(1) of the Veterans' Entitlements Act 1986 (Cth) to compel the production of documents by a witness, Commodore Mulcare, who was not a party to the proceedings. The AAT had to consider its jurisdiction and the proper procedure to follow in such a situation.

The AAT examined its own powers under section 33 of the Administrative Appeals Tribunal Act 1975 (Cth) and referenced the case of Mt Gibson Manager Pty Ltd v Commissioner of Taxation, where the Federal Court discussed the extent of tribunal powers. The AAT concluded that while it had the authority to require a party to produce documents, it did not have the power to issue a summons to a non-party witness to produce documents. Therefore, the tribunal decided that it would not direct Commodore Mulcare to produce the report in question. The AAT found that the appropriate course of action was to allow the parties to address the issue of the report's relevance and admissibility through the standard procedural avenues available to them.

In light of this decision, the AAT ruled that it would not compel Commodore Mulcare to produce the report he had prepared regarding the event on HMAS Vendetta in 1969. The tribunal emphasised that its role was to ensure fairness and proper procedure in the proceedings and that compelling a non-party witness to produce documents was outside its jurisdiction. The tribunal's decision was based on a careful interpretation of its powers and the applicable legislation.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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