MOUAT and TELSTRA CORPORATION LIMITED - [2011] AATA 267

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…

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: [2011] AATA 267
Decision Date: 21 April 2011

CaseChat Overview and Summary

Mouat and Telstra Corporation Limited came before the court in a matter concerning allowances for expenses or fees associated with the summons. The primary dispute was whether Mouat, who was summoned to produce documents, was entitled to a fee or allowance for their time and expenses incurred in complying with the summons. Telstra Corporation Limited argued that no such allowance was due to Mouat, as the summons pertained only to the production of documents, not to Mouat being called as a witness to give evidence.

The legal issue before the court was whether the statutory provisions governing allowances for witnesses applied to a person summoned to produce documents rather than to give evidence. The court had to determine if Mouat, in producing documents, qualified as a "witness" within the meaning of the relevant legislation. The court also needed to consider the distinction between producing documents and providing oral testimony in the context of allowable expenses.

The court held that the statutory allowances were intended for persons summoned to give evidence, not for those merely producing documents. The definition of a "witness" under the legislation was interpreted to mean someone called to give oral evidence in the proceeding. As Mouat was summoned only to produce documents, they did not meet the criteria to be considered a witness. Consequently, no allowance for expenses or fees was payable to Mouat. The court ruled in favour of Telstra Corporation Limited, affirming that no such allowance was due for the production of documents.

The court ordered that Telstra Corporation Limited was not liable to pay any allowance for expenses or fees to Mouat for their role in producing documents as part of the summons. The decision underscored the distinction in treatment between those summoned to give evidence and those summoned merely to produce documents, clarifying the scope of allowable expenses under the relevant statutory provisions.

Orders