NJCX and Comcare (Compensation)
[2023] AATA 2677
•22 August 2023
NJCX and Comcare (Compensation) [2023] AATA 2677 (22 August 2023)
Division:GENERAL DIVISION
File Number(s): 2020/6640
Re:NJCX
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Mr S. Webb, Member
Date:22 August 2023
Place:Canberra
Objections upheld. Summons application refused. Liberty to revise and narrow application.
................[Sgd]...................................................
Mr S. Webb, Member
Catchwords
PRACTICE AND PROCEDURE – review of decision refusing compensation claim in respect of alleged injury – psychological ailment – application for summons – objections – relevance – scope – discretion – Tribunal objectives – proximity to substantive hearing – broad scope not justified by legitimate forensic purpose – objections upheld – discretion not exercised – application refused
Legislation
Administrative Appeals Tribunal Act 1975 ss 2A, 33, 39, 40A
Safety, Rehabilitation and Compensation Act 1988 ss 4, 5A, 5B, 14
Cases
Abrahams v Comcare [2006] FCA 1829
BrisConnections Finance Pty Ltd (Receiver and Manager Appointed) v Arup Pty Ltd [2016] FCA 906
Comcare v Maganga [2008] FCA 285
Comcare v Muir [2016] FCA 346
Hunt v Wark (1985) 40 SASR 489
Kennedy v Comcare [2014] FCA 82
Lakatoi Universal Pty Limited and Ors v Walker and Ors [1998] NSWSC 479
Szabo v Comcare [2012] FCAFC 129
Trade Practices Commission v Arnotts Ltd & Ors [1989] FCA 248
Wong v Sklavos [2014] FCAFC 120
Wonson v Comcare [2020] FCAFC 76
REASONS FOR DECISION
Mr S. Webb, Member
22 August 2023
NJCX claimed compensation in respect of an alleged injury in her employment by the Australian Rail Track Corporation (ARTC). Comcare decided to refuse her claim. This decision was affirmed on reconsideration. NJCX lodged an application for review of the decision by the Tribunal.
In the course of the resulting proceedings, NJCX applied to summons records of the ARTC. A summons was sealed and issued. The summons was served on the ARTC shortly before the date for production. ARTC applied for an extension of time to comply with the summons, pending resolution of issues relating to the time and cost of compliance. Negotiations ensued between NJCX and the ARTC. Months passed without resolution of the compliance issues. The matter was referred to me and I heard the parties and the ARTC in an interlocutory hearing. In the result, the summons was vacated and NJCX was provided an opportunity to make a fresh summons application with revised terms.
NJCX provided proposed terms of a summons application to the Tribunal, the Respondent and the ARTC. The Respondent and the ARTC objected to the terms of the application. It is these matters, alone, which are the subject of this interlocutory decision.
Facts
On 7 May 2018, NJCX was offered and accepted employment by the ARTC.[1] The contract of employment was subject to a 6 month probationary period.
[1] T7.
On 18 October 2018, NJCX’s employment was terminated, within the probationary period.[2]
[2] T13.
On 28 April 2020, NJCX lodged a claim for compensation in respect of an alleged psychological injury for which medical treatment was first sought on 22 October 2018 from Dr Ian Jeffery.[3] The claim included the following terms:
[3] T3.
21. What tasks were you doing when you were injured?
I was doing my daily work related activities/ responsibilities as
Major Tenders Manager at ARTC within Procurement and
Contracts department, I used to work in offices located in Broadmeadow
22. What happened and how were you injured?
I was under the pressure of inappropriate behaviours from an
office colleague ([Colleague]) during multiple months of
my employment at ARTC (it started mid-June) although the issue
was reported to the supervising manager ([Supervising Manager]) but
nothing has been done/changed. …
23. When did you first notice your symptoms/injury?
Date: 10 / 07 /2018 Time: (approx) 10 am[4]
[4] Ibid folio 9.
On 16 July 2020, Comcare decided to refuse the claim.[5] Comcare was satisfied NJCX suffered from an aggravation of pre-existing depression as a result of reasonable administrative action undertaken in a reasonable manner in respect of NJCX’s employment under s 5A(1) of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) and the aggravation was not an ‘injury’ for which liability could be accepted under s 14 of the SRC Act.
[5] T43.
On 16 August 2020, NJCX requested reconsideration of this determination.[6]
[6] T46.
On 17 September 2020, Comcare issued a reconsideration decision affirming the initial determination.[7]
[7] T51.
On 26 October 2020, NJCX lodged an application for review of the reconsideration decision by the Tribunal.[8]
[8] T1.
On 5 August 2022, the application was listed for a hearing on 18 to 20 October 2022.
On 17 September 2022, NJCX lodged an application for the Tribunal to summons documents from the Supervising Manager employed by the ARTC:
1. All emails inclusive of all attachments (received by [Supervising Manager], cc-ed to [Supervising Manager] and sent by [Supervising Manager]) between 1st of April 2018 (start of the recruitment process for the Tender Manager Position within Procurement & Contracts) and 31st October 2018 ([NJCX]'s dismissal and information to employees regarding changes to Major Tenders Team) including minimum one of the WORDS listed below; and including minimum one of the PEOPLE listed below as addressed to, sent from or cc-ed. WORDS: Tender Manager, Major Tender Manager, Procurement Manager, NERL, [NJCX], Category Panels, Panels, Category Panel, Panel, Category Strategy, Procurement Strategy, PTP PEOPLE: [11 individuals][9]
2. Full disclosure of the Procurement & Contracts Employee Engagement Survey results (Published in September 2018) inclusive of all staff commentaries which were delivered to [Supervising Manager].
3. Full disclosure of [NJCX]the "Employee Training Records" from the Learning Management System provided to support her in the Major Tender Manager role (accordingly to statements made by [Supervising Manager]).
4. [Supervising Manager] Professional Resume with full disclosure of employment history and responsibilities and Degrees and other professional qualifications received up to date.
[9] The identity of the named individuals is not presently relevant.
On 21 September 2022, a summons in the terms requested was sealed and issued.
On 13 October 2022, the hearing listed on 18 to 20 October 2022 was vacated.
On 21 October 2022, documents were produced in compliance with the summons. I understand the documents ran to many hundreds of pages and were compiled in 17 bundles.
On 4 November 2022, the application was again listed for a hearing, set down for 8 and 9 March 2023.
On 30 January 2023, NJCX applied to the Tribunal for the following materials to be summonsed from the ARTC:
• Whole administrative processes and procedures applicable and in place at ARTC in April-May 2018 (nota bene in Procurement & Contracts Department) regarding Recruitment of new candidates for permanent positions at ARTC (nota bene details regarding people who make a selection, number of people if defined, selection notes and justification if any required).
• Whole administrative processes and procedures applicable and in place at ARTC in 2018 (nota bene in Procurement & Contracts Department) regarding Employees Performance Management (inclusive of: the processes and procedures to be applied in regard to performance issues identification, their management and monitoring) and the Termination process in place in 2018.
• All records of recruitment, performance management and termination of NJCX as an ARTC employee in the Major Tender Manager role within the Procurement & Contracts Department between May 2018 and October 2018. This inclusive of documentation of recruitment, training, performance management (issues identified, their management and monitoring) and documentation regarding termination.
• Full disclosure of NJCX the "Employee Training Records" from the Learning Management System provided to support her in the Major Tender Manager Role.
• Detailed records of training provided to NJCX which allowed familiarisation with the scope of the Major Tender Manager Role (applicable for majority of her role regarding 4D processes and related procurement procedures listed in VI of Procurement Manual, details of commonwealth requirements applicable to that role, details regarding panels processes and procedures).
• Procurement & Contracts Department Organisation Charts as of May 2019 and, as of October 2020 with indication of positions filled and which are vacant, excluding names of employees.
• Details about budget allocation of Major Tender Manager position budget within the company in 2018 and in 2019 (which department budget financed Major Tender Manager position in 2018 and were this budget has been allocated after NJCXs’ termination including departments/BUs budget part and the title of the position that budget was allocated to and located department/BU).
• Whole record regarding administrative procedures and processes, roles and responsibilities and performance objectives of a Senior Manager level employee (specifically referring to General Manager Procurement & Contracts if any specific requirements apply) applicable and in place in 2018 in regard to safe workplace environment (nota bene reported inappropriate behaviours eg.: bulling, marginalisation in a workplace and similar).
• Full disclosure of the Procurement & Contracts Employee Engagement Survey results (Published in September 2018) inclusive of all staff commentaries from Procurement & Contracts Department stuff.
[Errors in original]
On 21 February 2023, the Tribunal sealed and issued a summons in the terms requested.
On 28 February 2023, the hearing listed on 8 and 9 March 2023 was vacated and relisted on 2 and 3 August 2023.
On 13 March 2023, the ARTC applied for an extension of time to comply with the summons which had been served on 9 March 2023, pending resolution of cost of compliance issues with NJCX.
On 14 March 2023, the Respondent requested vacation of the hearing on 2 and 3 August 2023 due to the unavailability of counsel. With NJCX’s concurrence, the listed hearing was vacated and, on 2 May 2023, the application was relisted for a hearing on 18 and 19 October 2023.
On 11 August 2023, the matter was listed for an interlocutory hearing before me. Having heard the parties and the ARTC, I vacated the summons sealed on 21 February 2023 and issued directions, allowing NJCX to reconsider whether to press an application for the Tribunal to summons materials from the ARTC and, if so, to revise and narrow the scope of the application in discussion with the ARTC and the Respondent.
On 16 August 2023, NJCX provided terms of a proposed application for the Tribunal to summons the following materials from the ARTC:
- Budget Source for financing Major Tender Manager position within ARTC
1.1 Details regarding the source of the budget provided to Procurement & Contracts Department (P&C) for the Major Tender Manager role as of 1st of July 2018. This inclusive of the name of the department who provided the budget (e.g.: Interstate Network, Hunter Valley, etc.) and the % of the budget out of 100% of funds financing the Major Tender manager role; and
1.2 Details regarding the Major Tender Manager budget relocation after NJCXs’ termination including the name of the department (e.g.: Interstate Network, Hunter Valley, etc.) and the title of the role which felt under that budget on 1st of January 2023 and at 1st of July 2019 (e.g.: Procurement Manager, Interstate Network).
2.Administrative processes and procedures applied to NJCX regarding Employee Performance Management including dates and performance improvement plan (e.g.: details as per NJCX performance issues identification, performance issues improvement objectives, performance issues management, and monitoring).
3.All ARTCs’ records related to recruitment, performance management and termination of NJCX as an ARTC employee in the Major Tender Manager role within the Procurement & Contracts Department. This between April 2018 (recruitment process) through to October 2018 (termination).
4.Full disclosure of the NJCXs’ "Employee Training Records" from the Learning Management System at ARTC provided to support NJCX in the Major Tender Manager Role.
The terms had not been agreed with the ARTC or the Respondent.
On 16 August 2023, the ARTC responded to NJCX’s proposed terms:
ARTC has no objection to items 2-4 of the proposed scope of your summons. However, ARTC also notes that the majority of the material covered by the scope of this summons is likely to have been disclosed in response to the summons served on [Supervising Manager]. In the event that a new summons is issued, to ensure that ARTC is complying with its legal obligations ARTC will be required to carry out fresh searches for relevant documents and it cannot simply rely on those earlier searches. We flag this as a consideration for you, given previous discussions about the expenses to be incurred by you in connection with compliance with any summons, as you may wish to reconsider the scope of the summons for efficiency reasons.
With respect to item 1 of the proposed summons, ARTC objects to this on grounds of relevance. As noted by Member Webb at the directions on Friday 11 August 2023, the key questions before the Tribunal relate to the cause of your illness or injury and whether it falls within the exception at Section 5A(1) of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) being an injury suffered as a result of reasonable administrative action taken in a reasonable manner in respect of your employment. The budget allocation of any role at ARTC is simply not relevant to any of the issues before the Tribunal.
Later that day, on 16 August 2023, the Respondent objected to item 1 in NJCX’s proposed terms on similar relevance grounds.
NJCX provided the following reasons in support of the proposed terms and lodged an application for the Tribunal to issue a summons in the terms proposed:
As per points 2-4
The intention of these points is for ARTC to provide information about recruitment, performance management and termination administrative processes and procedures applied nota bene by the Human Resources Department to the applicants’ case between April and November 2019. This refers to:
· The recruitment process and procedure as documented regarding among others the applicants’ evaluation as a candidate and its skillset and experience match to the role requirements,
· The performance evaluation and management process and procedure as documented regarding how the applicants’ performance (as ARTCs’ employee) was measured vs. objectives, how it was managed, how issues were identified and addressed, did the improvement occurred, etc.)
· The termination process and procedure as documented regarding non-performance of the applicant, who made a termination decision, when, what are exact reasons of termination (issues, underperformance versus objectives, etc.). I expect that majority of the answer should come from ARTCs’ HR department to reflect the application of administrative procedures and track of it as per the applicants’ case.
As per point 1.
Unfortunately, I am not in alignment, this point is numbered one not by mistake. It is definitively not a ‘fishing expedition’ and I would appreciate a bit more of respect in Ms Johnsons' propos while she was not present at ARTC at that time; and she doesn't know. I feel that such statements are not correct and degrading.
I can comment on the relevancy of this point to the applicant can. The Section 5A (1) of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) being an injury suffered as a result of (1) reasonable administrative action (2) taken in a reasonable manner (3) in respect of your employment.
· Applicants’ injury first manifested before the termination date and was not as a result (1) of termination. However, the termination has further aggravated the state of health of the applicant and directly and indirectly caused consequential harm lasting multiple months following the October 2018.
· The termination was not a reasonable administrative action (2). Applicant states that there was no issue with applicants’ performance until about one week before termination (at least that was never brought to applicants’ attention). That excluding the instance of [Supervising Manager’s] discontentment about applicants’ questions during the internal auditors meeting, what was expressed once, soon after that meeting, and has never been mentioned again).
· The Major Tender Manager budget re-allocation was already decided at the time of termination of the applicant and that due to internal politics and internal fights for power, rather than applicants’ nonperformance. However that was not announced officially at that time (otherwise the alleged ‘nonperformance’ would need to be called ‘redundancy’ what contradicts that the action was taken in a reasonable manner (3)).
Considering that the applicant didn’t understand the reason for the termination which allegedly was due to her non-performance. She felt like a ‘collateral damage’ of ARTCs’ internal battles and politics. Thus the allocation and re-distribution of the budget have had a material impact on existence of the applicants’ position, her termination and the 'manner' and raisonablness of this termination. Thus the question is relevant.
[errors and emphasis in original]
NJCX’s application for issue of a summons in the terms proposed is to be determined under s 40A(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AATAct). In the present circumstances, there are 2 key issues to determine. Firstly, whether the discretion conferred by s 40A(1) should be exercised, and if so, secondly, whether the objections raised by the ARTC and the Respondent should be upheld.
Principles
The principles to be applied when dealing with the discretion conferred by s 40A(1) and objections of the kind the ARTC and the Respondent have made are well established.
In a case of the present kind, the scope of the Tribunal’s review is framed by the matters before previous decision makers arising from NJCX’s claim for compensation. Consequently, in order to determine the scope of its jurisdiction, the Tribunal must properly comprehend the details and substance of the claim and determine its scope. [10] A broad, generous and practical interpretation of the claim is to be adopted,[11] bearing in mind the purpose of the notice of claim is to enable Comcare to determine whether the claim should be met.[12] In a case of the present kind, it is apposite to reiterate the caution against opportunistic reformulation of a claim Flick J discussed in Muir:
30. … Nor does it promote good administration and the proper resolution of claims for compensation to encourage a course whereby claimants may opportunistically (for example) seek to re-characterise a claim as one other than that in fact made in order to avoid the consequence of findings already made, or which may be made, that would exclude any entitlement to compensation (such as findings that an injury resulted from “reasonable administrative action taken in a reasonable manner”).
[10] Kennedy v Comcare [2014] FCA 82 at [45].
[11] Comcare v Muir [2016] FCA 346 (Muir) at [30].
[12] Abrahams v Comcare [2006] FCA 1829 at [18].
The substantive elements of NJCX’s claim are set out in paragraph [6], above. Consistent with the claim, in submissions made on 16 August 2023, NJCX asserts the claimed injury first manifested before the termination of NJCX’s employment and it was not a result of the termination.
As can be seen, the claim is in respect of a psychological ailment which allegedly resulted from workplace circumstances which began in mid-June 2018, the symptoms of which were first noticed on 10 July 2018 and related medical treatment was first obtained on 22 October 2018. The statutory questions arising from the claim are whether:
(a) the ailment NJCX suffered is a ‘disease’ for the purposes of s 5B of the SRC Act, being an ‘ailment’ to which her employment contributed to a significant degree; and if so;
(b) the ‘disease’ is a result of reasonable administration undertaken in a reasonable manner in respect of her employment for the purposes of s 5A of the SRC Act, such that it is excluded as an ‘injury’.
The circumstances in which symptoms of the ailment under claim were allegedly first experienced or aggravated, including when this is said to have happened, assist a proper understanding of the claim as made and the Tribunal’s jurisdiction. Once the claim and the Tribunal’s jurisdiction are clarified, factual findings are required for the purposes of s 5A(1) and 5B of the SRC Act, including when NJCX suffered symptoms which crossed the threshold of normal functioning and behaviour and met the definition of ailment under s 4(1). The statutory question posed by s 5B(1), whether the employment contributed to the ailment to a degree that is substantially more than material, requires all relevant matters, including but not limited to those set out in s 5B(2), to be taken into account. Quite clearly, in the context of employment circumstances spanning a period of months, it will be necessary to determine if particular alleged events or circumstances in the employment occurred and contributed to the ailment to a significant degree. Noting the observations of the Full Court in Wonson v Comcare [13], the question of when the thresholds of ‘ailment’ and ‘disease’ are met under s 5B(1) has a particularly sharp point when considering the exclusionary proviso in s 5A(1). The exclusion turns on a factual question whether the ‘disease’ under s 5B(1) has been suffered as a result of reasonable administrative action undertaken in a reasonable manner in respect of the employee’s employment. Where the threshold of ‘disease’ is met on the basis of particular employment events or circumstances at a point in time and, subsequently, reasonable administrative action is taken in a reasonable manner in respect of the employee’s employment, two questions arise. There is a factual question whether the ‘disease’ was suffered as a result of the taking of the administrative action; and there is a legal question whether, in those circumstances, the exclusion in s 5A(1) then applies.
[13] [2020] FCAFC 76 at [53]-[62].
It is necessary to observe immediately, the occurrence of an ailment under claim is not to be confused with the deemed date of an injury under s 7(4) of the SRC Act, which is only to be determined only once an ‘injury’ is found to exist. When a claimant’s alleged symptoms meet the definition of an ailment, or the aggravation of an ailment, if at all, is a factual matter to be determined by reference to relevant medical evidence. It is relevant for the purposes of s 5B(1) when determining if the ailment under claim was significantly contributed to by the employment circumstances alleged in the claim and meets the threshold for a ‘disease’.
These are matters of fact and degree which may bear upon a claimant’s entitlement to compensation consequent to a claim. Caution must be applied when adopting a broad construction of a claim beyond its express terms. There is no authority to accept or reject liability to pay compensation in respect of an alleged injury which has not been claimed.[14] While in some cases, particularly where a psychological injury has been claimed, it might be difficult to draw a dividing line between a claim and an injury being asserted, the dispute in this case over the injury NJCX claimed has a different character which turns on the exclusionary effect of administrative action taken in respect of NJCX’s employment. In such circumstances, it is not to the point whether the administrative action is within the terms of the claim as a contributory cause. The exclusion in s 5A(1) is not subject to the terms of a claim, rather it operates where a ‘disease’ is a result of particular administrative action which meets the terms of the exclusionary proviso.
[14] Szabo v Comcare [2012] FCAFC 129.
NJCX’s claim is in respect of an alleged injury in the form of a psychological ailment which arose in response to the pressure of inappropriate behaviours from an office colleague in the period from mid-June 2018 to 10 July 2018. In the claim and the request for reconsideration of the determination refusing the claim, NJCX did not expressly assert the claimed injury was a result of employment termination on 18 October 2012. Rather, Comcare refused the claim by primary determination and in the reconsideration decision on the grounds that the psychological ailment NJCX claimed as an injury was, in part at least, a result of the termination of NJCX’s employment: an administrative action allegedly within the terms of the exclusion in s 5A(1). In the course of these proceedings, this issue has assumed some significance, not least in a statement NJCX provided on 4 July 2022.
In order to address these matters, the Tribunal will be required to make relevant factual findings in a logically probative manner on relevant materials placed before it. It is for the parties to place relevant materials before the Tribunal and to adduce relevant evidence in the proceedings in accordance with their respective obligations under s 33(1AA) and (1AB) of the AAT Act.
It is in this context, NJCX applied for the Tribunal to summons materials from the ARTC.
The Tribunal’s summons power is set out in s 40A(1) of the AAT Act:
(1) For the purposes of a proceeding before the Tribunal, the President, an authorised member or an officer of the Tribunal may summon a person to do either or both of the following, on the day, and at the time and place, specified in the summons:
(a) appear before the Tribunal to give evidence;
(b) produce any document or other thing specified in the summons.
As can be seen, the power to summon is discretionary. The discretion is broad and not subject to express limits, but is nevertheless to be understood in the statutory context under which the power is conferred. It is for the purposes of the proceedings. Clearly, matters of utility and relevance arise, but not exclusively. Issues of reasonableness and appropriateness in the circumstances are also relevant considerations.
Under s 39(1) of the AAT Act, the Tribunal must ensure each party to a proceeding is given a reasonable opportunity to present their case. Accordingly, each party should have a reasonable opportunity to prepare their case on the basis of an evidentiary mosaic constructed from materials of relevance to which access has been granted for the purposes of the proceedings.[15] The provision of a reasonable opportunity is not an open-ended opportunity, however. The Tribunal must proceed in a manner which is fair and reasonable for all parties to the proceedings, and in doing so it must have regard to the objectives set out in s 2A of the AAT Act:
In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that:
(a) is accessible; and
(b) is fair, just, economical, informal and quick; and
(c) is proportionate to the importance and complexity of the matter; and
(d) promotes public trust and confidence in the decision‑making of the Tribunal.
[15] Lakatoi Universal Pty Limited and Ors v Walker and Ors [1998] NSWSC 470 at 497.
When considering issues of relevance in the context of an application to summons materials in proceedings, the Tribunal must decide whether the materials are of apparent or adjectival relevance in the preparation of a case.[16] This involves two considerations:
(a)whether there is a real possibility that the documents could reasonably be expected to throw light on some of the issues in the principal proceedings[17] and may assist in the resolution of the issues in the proceedings;[18] and
(b)whether there is reason to suppose that the documents will be capable of being used as evidence or for a legitimate forensic purpose in cross-examination,[19] such that, when viewed realistically, the documents sought have a bearing on an issue which is not unreal, fanciful or speculative and are reasonably likely to add in some way to the relevant evidence in the case, or that it be “on the cards” that the documents sought will materially assist the party at whose request the summons has been issued.[20]
[16] BrisConnections Finance Pty Ltd (Receiver and Manager Appointed) v Arup Pty Ltd [2016] FCA 906 at [25].
[17] Trade Practices Commission v Arnotts Ltd & Ors [1989] FCA 248 at [41].
[18] Comcare v Maganga [2008] FCA 285 at [37].
[19] Hunt v Wark (1985) 40 SASR 489 per King CJ at 493.
[20] Wong v Sklavos [2014] FCAFC 120 at [12].
These are relevant matters to consider when deciding if the discretionary summons power should be exercised.
Objections
With regard to item 1 in NJCX’s application for summons, I am not persuaded records of the budget financing for the Major Tender Manager position before and after NJCX’s termination of employment on 18 October 2018, and any relocation of funding or the position thereafter, is of adjectival relevance to the matters to be decided in these proceedings. Whether or not a decision was taken to abolish or to relocate the position or its funding does no go to the statutory question posed by the exclusionary proviso in s 5A(1) in the particular circumstances.
The question whether termination of NJCX’s employment in the particular circumstances is reasonable administrative action is to be determined with reference to the particular administrative action, namely the termination letter set out in T13 and the reasons set out therein and in T12 for the taking of the action, and the standard and probationary terms and conditions of NJCX’s employment set out in T7. The stated reasons for the termination action, rightly or wrongly, are in respect of failure to meet work performance expectations during the probationary period.
NJCX’s allegation the termination action was the result of budget funding decisions or internal politics and internal fights for power, rather than applicants’ non-performance is not supported by any material or cogent reasoning, beyond conjecture. To that extent, I am satisfied this aspect of the summons application may properly be described as an attempt to trawl for material in the hope it exists.
For these reasons, the objections raised by the ARTC and the Respondent to item 1 in NJCX’s summons application are upheld.
Discretion
I am satisfied it is not appropriate to exercise the discretion to issue a summons in the broad terms of NJCX’s application so late in the proceedings, shortly before the listed hearing.
Even though NJCX is not legally represented, NJCX has been capable of successfully calling upon the Tribunal’s summons power to gain access to materials of adjectival relevance to the matters to be decided. A large volume of such material has been summonsed and produced by NJCX’s former ARTC Supervising Manager. Some of this material is within the scope of the present application for the Tribunal to summons records from ARTC. I accept ARTC’s assertion about the extent of the probable duplication and the time and costs which will be incurred searching again for such materials if the summons application is granted.
Item 4 in NJCX’s summons application duplicates item 3 in the summons sealed in respect of the Supervising Manager.
Item 3 in NJCX’s summons application refers to all records held by the ARTC in respect of NJCX’s recruitment and termination, as well as performance management. I am not satisfied there is a real possibility records of NJCX’s recruitment and termination are relevant to the matters to be decided by the Tribunal or that calling for production of such records serves a legitimate forensic purpose in the proceedings.
That said, I accept the call for production of materials relating to performance management of NJCX as covered in items 1 and 2 of the summons application might have relevance to the matters to be decided in the proceedings.
It is for this reason, and in consideration of NJCX’s status as a self-representing applicant without legal support, I am prepared to consider a further revised application for summons of such materials from the ARTC. Consequently, a period of 7 days will be allowed for NJCX to inform the Tribunal if a further revised application for summons is pressed and, if so, for such an application to be made, including a date for production which has been agreed with the ARTC.
Decision
Objections upheld. Summons application refused. Liberty to revise and narrow application.
I certify that the preceding 54 (fifty-four) paragraphs are a true copy of the reasons for the decision herein of
..............................[Sgd]..........................................
Associate
Dated: 22 August 2023
Date of hearing: | 11 August 2023 |
Date final submissions received: | 16 August 2023 |
Applicant: | In person |
Counsel for the Respondent: | Ms A Bortone |
Solicitors for the Respondent: | Ms S Johnson, HBA Legal |
Solicitors for the Other Party: | Ms N McMahon, McCullough Robertson |
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