MOUAT and TELSTRA CORPORATION LIMITED
[2011] AATA 267
•21 April 2011
PRACTICE AND PROCEDURE – SUMMONS – allowances for expenses or fees – payable only for a person summoned to give evidence in the proceeding – none payable to a person summoned to produce documents.
WORDS AND PHRASES – WITNESS – person called to give evidence in the proceeding.
Amey v Long (1808) 9 East 473; 103 ER 653
Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984] 3 NSWLR 98
Commissioner for Railways v Small (1938) 38 SR (NSW) 564
Cosco Holdings Pty Ltd v Commissioner for Taxation & Anor [1997] FCA 1504; (1997) 37 ATR 432
Davis v Dale (1830) 1 Mood & M 514
Griffith v Ricketts (1849) 7 Hare 299
Lee v Angas (1866) LR 2 Eq 59
Mandic v Phillis [2005] FCA 1279; 225 ALR 760
National Employers’ Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372
National Employers’ Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372
O’Born v Commissioner for Government Transport (1959) 77 WN(NSW) 81
Pharm-a-Care Laboratories Pty Ltd v Commonwealth of Australia [2009] FCA 1203
Re Cosco and Commissioner for Taxation 18 September 1997; QT97/35 and QT97/36
Re Trade Practices Commission v Kimberley Homes Pty Limited [1989] FCA 262
Rush v Smith (1834) 1 Cr M & R 94
Summers v Moseley (1834) 2 Cr & M 477
Taylor v Dixon Advisory Limited & Ors [2010] ACTSC 161
Trade Practices Commission v Arnotts Limited (No 2) (1989) 21 FCR 306; 88 ALR 90
Treasurer of the Commonwealth of Australia v Canwest Global Communications Corp [1997] FCA 578
Administrative Appeals Tribunal Act 1975, ss 3(1), 33, 33(1A), (2), (2A) and (3), 40(1A), (1B) and (1E), 61 and 67
Administrative Appeals Tribunal Regulations 1976, rr 15(a) and 16, Schedule 1, Forms 7, 8 and 9 and Schedule 2
Federal Court Rules, Order 27 Rule 11
Black’s Law Dictionary with pronunciations, 5th edition, 1989, West Publishing Company, St Paul
Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
Corpus Juris Secundum, vol 97
H Glass (ed) Seminars on Evidence, 1970
DECISION AND REASONS FOR DECISION [2011] AATA 267
ADMINISTRATIVE APPEALS TRIBUNAL )
) 2010/4458
GENERAL ADMINISTRATIVE DIVISION )
Re:MARK MOUAT
Applicant
And:TELSTRA CORPORATION LIMITED
Respondent
DECISION
Tribunal: Deputy President S A Forgie
Place: Melbourne
Date: 21 April 2011
Decision:A person summoned to produce books, documents or things under a summons issued under s 40(1A)(c) of the Administrative Appeals Tribunal Act 1975 is not entitled to be paid any allowances for expenses or fees.
S A Forgie
Deputy President
REASONS FOR DECISION
Recently, a medical practice mistakenly sent a bundle of documents to the applicant’s solicitors, rather than the Tribunal, in response to a summons that had been served upon it. The solicitors properly sent the documents on to the Tribunal so that they could be considered and leave given to the parties to inspect them as appropriate. Among the documents was an invoice from the medical practice for $50 for “Copies of medical records and Postage”. The invoice was addressed to the solicitors and included a note:
“Pre-payment is require [sic] before releasing the medical reports and records. Thank you.”
The solicitors marked the invoice as received on 23 March 2011 and so a week before the summons was returnable in the Tribunal on 30 March 2011. They sent the invoice to the Tribunal with the remainder of the documents on 6 April 2011.
Although a summons to produce books, documents or things does not mention costs, fees or cost recovery, I can understand that a person served with it may, in some instances, want to be reimbursed for the effort and time spent in locating and collating the material asked for. Although the task may be small in some instances, it may well be considerable in others. Whether small or large, the task requires the person complying with the summons to check the documents against the description of the documents sought.[1] Despite that, there is no provision for reimbursement of any sort for those required to produce documents. Neither the applicant’s solicitors nor the Tribunal is responsible for the payment of the medical practice’s costs.
[1] In some instances, the person summoned may want to object to the summons but I am not concerned with a case of that sort here. See, for example, Re Cosco and Commissioner for Taxation 18 September 1997; QT97/35 and QT97/36 and Cosco Holdings Pty Ltd v Commissioner for Taxation & Anor [1997] FCA 1504; (1997) 37 ATR 432 per Spender J
POWER TO SUMMONS
Section 40(1A) provides that:
“… for the purposes of the hearing of a proceeding before the Tribunal, the member presiding at the hearing, the Registrar, a District Registrar or a Deputy Registrar may summon a person to appear before the Tribunal at that hearing:
(a)to give evidence; or
(b)to give evidence and produce any books, documents or things in the possession, custody or control of the person or persons named in the summons that are mentioned in the summons; or
(c)to produce any books, documents or things in the possession custody or control of the person or persons named in the summons that are mentioned in the summons.”
Section 40(1B) provides that a summons may require production at a directions hearing rather than at a hearing of a proceeding before the Tribunal.
There are, therefore, three types of summons seeking three different types of evidence. One is to give evidence, one to produce written material and things and the third to do both. Unless a person named in a summons is also required to give evidence or the Tribunal directs to the contrary, a person named in a summons to produce a book, document or thing may produce it at the Registry from which the summons was issued before the date specified in the summons.[2] Production at the Registry in those circumstances is regarded as compliance with the summons.
[2] AAT Act, s 40(1E)
FORM OF SUMMONS
Whichever summons is appropriate for the circumstances, it must follow the form that has been prescribed for that particular type of summons. That is the requirement of r 15(a) of the Administrative Appeals Tribunal Regulations 1976 (Regulations). The forms are Forms 7, 8 and 9 of Schedule 1 to the Regulations.
OBLIGATION TO COMPLY WITH SUMMONS
The power to issue a summons is one thing and the obligation to comply with it another. Section 61 of the AAT Act makes clear that a person summoned must comply with the summons. It provides:
“(1) A person is guilty of an offence if:
(a)the person is given, as prescribed, a summons under this Act to appear as a witness before the Tribunal; and
(b)the person:
(i)fails to attend as required by the summons; or
(ii)fails to appear and report from day to day unless excused, or released from further attendance, by a member.
Penalty: 30 units or imprisonment for 6 months, or both.
(2)Subsection (1) does not apply if the person has a reasonable excuse.
(3)A person is guilty of an offence if:
(a)the person is given, as prescribed, a summons under this Act to produce a book, document or thing; and
(b)the person fails to comply with the summons.
Penalty: 30 penalty units or imprisonment for 6 months, or both.
(4)Subsection (3) does not apply if the person has a reasonable excuse.”
PROVISIONS OF AAT ACT AND REGULATIONS REGARDING EXPENSES OF PERSON SUMMONED
Section 67 of the AAT Act provides for the payment of allowances for expenses and fees to a person summoned under that legislation:
“(1) A person summoned under this Act is entitled to be paid fees, and allowances for expenses, fixed by or in accordance with the regulations in respect of his or her compliance with the summons.
(2) Subject to subsection (3), the fees and allowance shall be paid:
(a)in a case where the witness was summoned at the request of a party - by that party; and
(b)in any other case - by the Commonwealth.
(3) The Tribunal may, in its discretion, order that the fees and allowances of a person referred to in paragraph (2)(a) shall be paid, in whole or in part, by the Commonwealth.”
Relying on the power given by s 67(1), r 16 of the Regulations has been made. It provides:
“A person summoned to appear as a witness before the Tribunal shall be paid such fees, and allowances for expenses, in respect of his attendance, in accordance with Schedule 2, as determined by the Tribunal or by a presidential member.”
Consistently with r 16, Schedule 2 sets out amounts that must be paid to a “person summoned to appear as a witness”.
WHAT IS A WITNESS?
The ordinary meanings of the word “witness”, when used as a noun, include the following which are relevant in this context:
“… 1 someone who sees, and can therefore give a direct account of, an event or occurrence, etc 2 someone who gives evidence in a court of law. …”[3]
Those meanings are to be distinguished from that of attesting the genuineness of the signature of another or, as in the case of attesting a will, as a person who was present at the time the will was signed and who may testify as to the events at the time.
[3] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers. See also Black’s Law Dictionary with pronunciations, 5th edition, 1989, West Publishing Company, St Paul
With this meaning in mind, a person summoned to give evidence in the Tribunal under s 40(1A)(a) of the AAT Act and, in so far as a person is required to give evidence, a person summoned under s 40(1A)(b) would be a witness. The more difficult question is whether a person summoned to produce books, documents or things under s 40(1A)(c) or, in so far as it relates to their production, under
s 40(1A)(b), is a witness. In order to answer that question, I have gone back to the common law to see how the courts have answered that question in related contexts.
MAY A PERSON SUMMONED TO PRODUCE DOCUMENTS BE REGARDED AS A WITNESS?
Principles relating to a subpoena duces tecum at common law
At common law, the equivalent of a summons to produce books, documents or things is a subpoena duces tecum or a subpoena to produce. In Trade Practices Commission v Arnotts Limited (No 2)[4] (Arnotts), Beaumont J canvassed a number of authorities considering the extent to which the person producing material on a subpoena duces tecum might be questioned by the parties. They are among the authorities for the following propositions:
[4] (1989) 21 FCR 306; 88 ALR 90
(1)Rights of strangers to proceedings may be invaded for proper conduct of litigation
“… in the exercise of the power in relation to the subpoena, the invasion of the rights of a third party have been jealously guarded. It is accepted that the documents should not go beyond the judge against the objection of the owner, unless there is a valid reason to do so. It is clear that it can only be legitimate to do so, so far as it is necessary for proper conduct of the litigation. It is difficult to see why to do that which is ‘requisite for the purpose of justice’ should be restricted by some arbitrary limit. Of course, the concept of what is requisite for the purpose of justice, and how the compromise between the requirements of justice between litigants and the rights of a stranger should be met, may change and, indeed, be different now from the concepts of last century, just as concepts as to what is appropriate between parties has changed in favour of fuller disclosure of relevant matters.”[5]
[5] Summers v Moseley (1834) 2 Cr & M 477 per Bayley B cited in National Employers’ Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372 at 383-384 per Moffitt P with whom Hutley and Glass JJA concurred; Arnotts (1989) 21 FCR 306; 88 ALR 90 at 312; 98. See also Cosco Holdings Pty Ltd v Commissioner for Taxation & Anor [1997] FCA 1504; (1997) 37 ATR 432
“… Does the material have an apparent relevance to the issues in the principal proceedings, ie, is adjectival, as distinct from substantive relevance established? Does the subpoena have a legitimate forensic purpose to this extent? This involves a consideration of the matter from the standpoint of … [the party at whose request the subpoena was issued].”
…
The test of adjectival relevance is satisfied if the material has apparent relevance. In my opinion, the documentation called for here could possibly throw light on the issues in the main case. In my opinion, adjectival relevance is established.”[6]
[6] Arnotts (1989) 21 FCR 306; 88 ALR 90 at [passage not reported in (1989) 21 FCR 306]; 103 The question of adjectival relevance may be accompanied by a second question: is the subpoena seriously and unfairly burdensome or prejudicial. That is a matter looked at from the point of view of the person required to comply with the subpoena: Arnotts (1989) 21 FCR 306; 88 ALR 90 at [passage not reported in (1989) 21 FCR 306]; 103 and see below at [11(3)]
“Notwithstanding the use of the word ‘possibly’ in this paragraph, in my opinion, that word is not used in any speculative sense. I take his Honour’s conclusion expressed in that paragraph as an acquiescence to the correctness of the submission that the material sought could reasonably be expected to throw light on some of the issues in the principal proceedings. It is not a question of looking at the documents to see if the documents might permit a case to be made.
…
Discovery should be controlled, and may be limited to documents relevant to particular issues, but it is a valuable weapon in the armoury of justice. The real objection which, in some cases, justifies discovery being limited to particular issues is the objection of oppression.
…”[7]
[7] Cosco Holdings Pty Ltd v Commissioner for Taxation & Anor [1997] FCA 1504; (1997) 37 ATR 432 at 439-440 per Spender J. His Honour drew on the principles stated in a judgement by the Full Court of the Federal Court in Treasurer of the Commonwealth of Australia v Canwest Global Communications Corp [1997] FCA 578, Beaumont, Burchett and Emmett JJ in a different context being that of discovery:(2)Person served with subpoena obliged to comply but may object
Where a person has been served with a subpoena duces tecum, he or she must produce the material to the court[8] but may object to doing so.[9]
[8] Amey v Long (1808) 9 East 473; 103 ER 653 at 485-486; 658 per Lord Ellenborough CJ; Arnotts (1989) 21 FCR 306; 88 ALR 90 at 307; 94
[9] Davis v Dale (1830) 1 Mood & M 514 at 515 per Tindal CJ; Arnotts (1989) 21 FCR 306; 88 ALR 90 at 307-308; 94
(3) Grounds of objection
“ It is a well-accepted rule that a subpoena may be set aside as oppressive and as an abuse of the process of the court if it requires the production of documents which are manifestly irrelevant to the issues between the parties. …”[10]
[10] Re Trade Practices Commission v Kimberley Homes Pty Limited [1989] FCA 262 at [11]
“… a reference to the authorities makes it tolerably plain that the court will exercise its undoubted jurisdiction to set aside a subpoena in a variety of cases, as, for example:
1.unless the subpoena was issued for the purpose of a pending trial, hearing or application …
2.where to require the attendance of a witness would be oppressive …
3.where the subpoena had not been issued bona fide for the purpose of obtaining relevant evidence and the witness to whom the subpoena had been addressed was unable to give relevant evidence …
4.where the subpoena has been used for the purpose of obtaining discovery or further discovery against a party …
5.where the subpoena has been used for the purpose of obtaining discovery against a third party…
6.where to require a party to comply with a subpoena to produce documents would be oppressive …
7.where the subpoena has been issued for a purpose which is impermissible, as, for example, “fishing” ...”[11]
[11] Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984] 3 NSWLR 98 at 100-101; citations omitted and see also Mandic v Phillis [2005] FCA 1279; 225 ALR 760 at [33]; 771 to 772 per Conti J and Pharm-a-Care Laboratories Pty Ltd v Commonwealth of Australia [2009] FCA 1203 at [20] per Flick J.
(4)Parties may not question, examine or cross-examine person producing material as a witness in the case
Neither party is entitled to examine the person.[12]
[12] Davis v Dale (1830) 1 Mood & M 514 at 515 per Tindal CJ; Arnotts (1989) 21 FCR 306; 88 ALR 90 at 307-308; 94
“… where you call a witness under a subpoena duces tecum, and he produces the required documents, which he is bound to do at his peril, and you do not examine him, but identify the documents by other witnesses, the person producing the documents is not subject to cross-examination.”[13]
[13] Rush v Smith (1834) 1 Cr M & R 94 at 95 per Alderson B; Arnotts (1989) 21 FCR 306; 88 ALR 90 at 308; 94 and see also Perry v Gibson (1834) 1 Ad & E 48 at 48 per Lord Denman CJ; Arnotts (1989) 21 FCR 306; 88 ALR 90 at 95
The party at whose request a subpoena duces tecum has been issued cannot have the person producing the material “…sworn in such a way as to make a witness in the case, when it may often happen that he is a mere depository, and knows nothing of the documents of which he has custody. …”[14]
[14] Summers v Moseley (1834) 2 Cr & M 477 at 489 per Bayley B; Arnotts (1989) 21 FCR 306; 88 ALR 90 at 308; 94
Even when a summons requires a person both to produce documents and to give evidence, that person cannot be examined generally on the merits of the case when merely being called upon to produce documents. “… [I]t has also been held that calling a witness, appearing in response to a subpoena duces tecum, to testify is not essential, … even though the writ also contains an ad testificandum clause, … and that the party at whose instance the subpoena issues may require the production of the papers without introducing the witness generally …”.[15]
[15] Corpus Juris Secundum, vol 97 at [25] cited in Arnotts (1989) 21 FCR 306; 88 ALR 90 at 313-314; 99-100
(5)Power to require documents to be produced confers incidental powers on Judge presiding in the case
“… Power to order production of a document to the court … might reasonably be inferred to carry with it the incidental power to take ancillary steps to ensure the court’s order being complied with. There seems to be no reason why the court should not have a discretion to ask of the person required to produce documents questions for this purpose, either informally or on oath. …”[16]
[16] H Glass (ed) Seminars on Evidence, 1970 at 10-11; Moffitt J cited in Arnotts (1989) 21 FCR 306; 88 ALR 90 at 312; 98
(6) Limits on questioning by the Judge
“… A person served with a subpoena duces tecum to produce a document at the hearing of the case, may, at such a hearing, be called upon his subpoena, and asked whether he produces the document, and if he declines to produce it, why he so declines or other like questions confined to the mere purpose of production. …”[17] The person is bound to answer the questions without being sworn.[18]
[17] Arnotts (1989) 21 FCR 306; 88 ALR 90 at 309; 95 citing Griffith v Ricketts (1849) 7 Hare 299 at 302-303 and see also Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 574 per Jordan CJ
[18] Lee v Angas (1866) LR 2 Eq 59 at 63-63 per Sir W Page Wood VC citing Griffith v Ricketts; Arnotts (1989) 21 FCR 306; 88 ALR 90 at 310; 96
“… If he states that he objects to produce them, he should be sworn and the grounds of his objection stated on oath so that the court may judge their sufficiency ….”[19] It is for the court to judge the sufficiency of any objection for the person produces the document to the court and not to the parties.[20]
[19] Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 574 per Jordan CJ; Arnotts (1989) 21 FCR 306; 88 ALR 90 at 310; 96
[20] O’Born v Commissioner for Government Transport (1959) 77 WN(NSW) 81 at 83 per Street CJ, Clancy and Walsh JJ; Arnotts (1989) 21 FCR 306; 88 ALR 90 at 310-311; 96-97
The Judge would tailor questions bearing in mind the privilege that the person would have not to incriminate him or her self and that non-compliance with a subpoena is a contempt of court with penal consequences.[21]
“… questions could not extend to establishing proof that the person was in contempt of court, nor could they be of the search and inquiry type such as to the person’s knowledge as to the location of documents not in his present possession or control, or as to the nature of other documents in his possession not within the scope of the subpoena, or as to his system of books or the like, so that this material could be used to search for other evidence or to enable a different subpoena to be framed.”[22]
(7)Questions asked of person producing material not evidence in case
“Questions asked of a stranger, whether informal or on oath and whether relating to a claim of privilege or otherwise, do not constitute evidence in the trial. Such inquiry is a function exercised on the responsibility of the judge and is merely ancillary to the trial. Probably the person should be sworn, not ad testificandum but to make true answer to all such questions as the court should demand of him …”[23]
[21] H Glass (ed) Seminars on Evidence, 1970 at 10-11; Moffitt J cited in Arnotts (1989) 21 FCR 306; 88 ALR 90 at 312-313; 98-99
[22] H Glass (ed) Seminars on Evidence, 1970 at 10-11; Moffitt J cited in Arnotts (1989) 21 FCR 306; 88 ALR 90 at 313; 99
[23] H Glass (ed) Seminars on Evidence, 1970 at 10-11; Moffitt J cited in Arnotts (1989) 21 FCR 306; 88 ALR 90 at 313; 99
Common law principles relevant in defining Tribunal’s powers regarding a summons
The common law principles relating to a subpoena duces tecum have been relied on in interpreting the powers of the Tribunal under the AAT Act[24] and of other tribunals given the power to summons documents and other material.[25] They are necessarily circumscribed by the specific provisions conferring that power.
[24] Cosco Holdings Pty Ltd v Commissioner for Taxation & Anor [1997] FCA 1504; (1997) 37 ATR 432 per Spender J
[25] R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 29 ALR 289 at 303
In the case of the Tribunal, the qualification imposed on the Tribunal’s exercise of the power accords with the principles developed by the courts in relation to a subpoena. The limitation is found in ss 40(1A) and (1B), which I have set out above, and specifically in the words: “for the purposes of the hearing of a proceeding before the Tribunal … [the identified persons] may summon a person to appear before the Tribunal at that hearing …” or at a directions hearing to give evidence and so forth (emphasis added). The word “proceeding” is defined in s 3(1) of the AAT Act to include various applications identified in that provision. Also identified is a matter referred to the Tribunal for inquiry and/or review under the AAT Act or any other Act and an incidental application to the Tribunal made in the course of, or in connection with, an application or proposed application or matter otherwise referred to in s 3(1). Two examples of incidental applications would be an application to extend the time within which to lodge an application for review of a decision and an application to be joined as a party to a proceeding. Putting aside a directions hearing for the moment, the basis on which a summons is issued is the same as the basis on which a subpoena is issued. Both are issued only for the proper conduct of the hearing of the particular matter before the court or the Tribunal.
A directions hearing is not a “proceeding” as that term is defined in
s 3(1) of the AAT Act but the return of a summons at a directions hearing[26] before the hearing of an application for review – and so before the hearing of a proceeding – is a much more convenient forum than at the hearing itself. It enables the parties to examine and consider the returned material well before any hearing and gives the Tribunal the flexibility to organise its business without necessarily constituting a Tribunal for the hearing of a proceeding that might never come to fruition.[26] s 40(1B) of the AAT Act
Even with the contrivance of the directions hearing, the provisions of
s 40 relating to summonses remain consistent with the principles that apply to subpoenas in the courts. A directions hearing is necessarily held “in relation to a proceeding” for that is the only basis on which it is authorised by s 33(1A) of the AAT Act. Given its place in s 33 overall, the purpose of a directions hearing must be to consider “the procedure to be followed at or in connection with the hearing of a proceeding before the Tribunal”. That is the language of ss 33(2A) and (3), which set out examples of the sorts of directions that the Tribunal may give and may vary or revoke and of s 33(2), which sets out those who may give directions. It follows that a summons issued by the Tribunal must be for the purposes of the hearing of a proceeding that is before the Tribunal.
There is, therefore, a direct correlation between the powers of a court to issue a subpoena duces tecum and the power of the Tribunal to issue a summons for the production of books, documents or things. Both must serve a purpose of the litigation or of the hearing of a proceeding. The expression of that purpose is differently expressed with its being required to have adjectival relevance in a court and being for the purposes of the hearing of a proceeding before the Tribunal in the other. In practice, there will be no difference of substance between the two. It is clear from the principles adopted by Spender J in Cosco Holdings Pty Ltd v Commissioner for Taxation & Anor that the courts will apply the principles relating to subpoenas in the courts to summonses in the Tribunal.
Purpose for which evidence given by a person summoned to produce books etc
Applying those principles, it is clear that a person who is summoned to produce books, documents or things for the purposes of the hearing of a proceeding is not summoned to give evidence for the purposes of the hearing of the proceeding. Any evidence that the person gives will be directed to, and limited to, the obligations imposed upon that person by the summons. Consequently, it is apparent from the authorities to which I have referred in [11] above, that the person will be limited to addressing and being questioned about matters such as whether or not the document is produced and if not, why not. As part of the second matter, the person may wish to object to being required to comply with the summons. That may lead to the need to address other matters relating to the summons and the documents sought and are of the kind set out in [11(3)] above.
The fact that the documents summoned must have some adjectival relevance to the issues to be resolved at the hearing of the application does not make the evidence given by a person summoned to produce that document relevant to the hearing of that application. The evidence remains relevant to the issue of whether that person must comply with the summons and whether that person has complied with it. If a document is ultimately produced on a summons, it will only become evidence in the hearing of the proceeding if one party or the other proves that document through a person called to give evidence in that hearing, tenders it and the document is admitted as evidence by the Tribunal. The person who proves the document may be the party producing it on a summons but, if that is the case, he or she will have been served with a summons under s 40(1A)(b) and so of the second type and not simply with a summons of the third type under s 40(1A)(c) requiring only production of books, documents or things.
Is a person summoned to produce books etc a witness?
The question I have posed must be answered in the negative. Section 40(1A) draws a clear distinction between a summons requiring a person to give evidence for the purposes of the hearing of a proceeding and requiring the person to produce books, documents or things for that same purpose. That distinction seems to be continued in Schedule 2 to the Regulations where reference is made only to a “person summoned to appear as a witness” and so only to a person summoned to give evidence. For the reasons I have given, any evidence that the person gives in relation to a summons for production is not evidence for the purposes of the hearing of a proceeding before the Tribunal. Therefore, he or she is not summoned to give evidence within the meaning of ss 40(1A) or (1B) and so is not a witness for the purposes of Schedule 2.
As no provision is made in Schedule 2 to the Regulations for allowances for expenses and fees to be paid to a person producing books, documents or things on a summons directed only to their production, none is payable to such a person. In coming to this conclusion, I am mindful that there are occasions on which the cost that a person may be put to in complying with a summons to produce books and the like is not insignificant. Parliament, however, has not chosen to provide for them in this Tribunal[27] and compliance with such a summons, though essential in enabling the Tribunal to undertake its statutory duties, remains an unpaid task and part of the summoned person’s duty to comply with the law.[28]
[27] The situation is different in the courts where provision is made in their Rules e.g. Federal Court Rules, Order 27 Rule 11:[28] This is consistent with the position at common law: Taylor v Dixon Advisory Limited & Ors [2010] ACTSC 161 at [32]-[33] per Refshauge J
I certify that the twenty preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,
Signed: .......................................................................
Leah Berardi, Associate
Date of Decision 21 April 2011
Solicitor for Applicant Ryan Carlisle Thomas
Solicitor for the Respondent Sparke Helmore
“A modern statement of the principle, which has been repeatedly followed, is that made by Brennan J (with whom Bowen CJ agreed) in W.A. Pynes Pty Ltd v Bannerman (1980) 41 FLR 175 at 181, where what is required to obtain a discovery order in a doubtful case was expressed as follows:
sufficient is shown to ground a suspicion that the party applying for discovery has a good case proof of which is likely to be aided by discovery.”
(1) The Court may order the issuing party to pay the amount of any reasonable loss or incurred in complying with the subpoena.
(2) If an order is made under subrule (1), the Court must fix the amount or direct that it be fixed in accordance with the Court’s usual procedure in relation to costs.
(3) An amount fixed under this rule is separate from and in addition to:
(a) any conduct money paid to the addressee; and
(b) any witness expenses payable to the addressee.”
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