Pacific International College Pty Ltd and Secretary, Department of Education and Training

[2015] AATA 547

Pacific International College Pty Ltd and Secretary, Department of Education and Training [2015] AATA 547 (29 June 2015)

Division	GENERAL DIVISION
File Number	2014/5797; 5799; 5800; 5802
Re	Pacific International College Pty Ltd
APPLICANT
And	Secretary, Department of Education and Training
RESPONDENT

DECISION

Tribunal	Professor R Deutsch, Deputy President
Date	29 June 2015
Date of written reasons	28 July 2015
Place	Sydney

The Summons issued on 12 May 2015 to the proper officer of Pacific International College is revoked.

.................................[sgd].......................................

Professor R Deutsch, Deputy President

CATCHWORDS

PRACTICE AND PROCEDURE – Summons to Produce Documents – application for summons to be set aside in full – randomly selected categories of material – general fishing expedition – summons revoked

LEGISLATION

Administrative Appeals Tribunal Act 1975 s 40(1A)

CASES

Cosco Holdings Pty Ltd v Commissioner of Taxation (1997) 37 ATR 432

Re General Merchandise and Apparel Group Pty Ltd v Chief Executive Officer of Customs [2007] AATA 1139

Botany Bay Instrumentation & Control Pty Limited v Stewart (1984) 3 NSWLR 98

REASONS FOR DECISION

Professor R Deutsch, Deputy President

28 July 2015

INTRODUCTION

1. A Summons to Produce Documents (the Summons) was issued by the Tribunal on 12 May 2015 at the request of the Respondent in these proceedings. The Summons was issued to the proper officer of Pacific International College.

2. The recipient of the Summons objected to the Summons and made an application to the Tribunal to have the Summons set aside in whole.

3. Having reviewed the matter, I decided to set aside the summons and gave an oral decision on 29 June 2015.

4. The Respondent has requested written reasons which I now provide.

   THE SUMMONS

5. The Summons called for the production of:

   “the following books, documents or things:

   ALL THE DOCUMENTS DESCRIBED ON THE LIST OF DOCUMENTS ANNEXED TO THIS SUMMONS AND IDENTIFIED AS ANNEXURE “A””.

6. Annexure A provided as follows:

   “The Applicant is summonsed to produce the following documents relating to qualifications and units of competency across its Scope of Registration or proposed Scope of Registration”.

7. There then followed a list of seven components as follows:

   ·“AUR30612 Certificate III in Light Vehicle Mechanical Technology

   ·AUR50112 Diploma of Automotive Management

   ·CHC 30113 Certificate III in Early Childhood Education and Care

   ·CHC50113 Diploma of Early Childhood Education and Care

   ·BSB60215 Advanced Diploma of Business

   ·22251V1C Certificate II in EAL (Access)

   ·22258VIC Certificate IV in EAL (Further Study)”.

8. Under each component, there was a further listing of the documents and copies of materials requested and there was commonality as to what was required under each component. Each component required the production of:

   ·Documents detailing the Applicants strategy/ies for training and assessment in the qualification including:

   odocuments detailing the amount of training time to be provided by the Applicant and how this was determined; and

   odocuments describing the nature and type of industry consultation that has been conducted by the Applicant.

   ·Copies of the following:

   othe qualifications on current industry experience of those trainers and assessors who will be delivering the training and assessment in this qualification;

   othose documents detailing the nature of the student support services the Applicant has available on site or elsewhere to meet the needs of its students;

   othose documents detailing the learning resources that the applicant has available on site or elsewhere to meet the educational needs of its students;

   othose documents detailing the facilities and equipment the Applicant has available on site or elsewhere to deliver training in this qualification.

9. In addition in respect of a further eight units the summons called for the production of “A complete suite of assessment materials, including any documents providing guidance for learners and for assessors”.

   CONSIDERATION

10. Under section 40(1A) of the Administrative Appeals Tribunal Act 1975, as it stood at the date of the oral decision on 29 June 2015 (the Act was amended on 1 July 2015), the Tribunal had the power to summons a person to produce books, documents or things in their possession. It also had power to set aside such a summons.

11. The general principles relating to the issue of subpoenas by a court are also applicable to the issue of a summons by the Tribunal: Cosco Holdings Pty Ltd v Commissioner of Taxation (1997) 37 ATR 432; Re General Merchandise and Apparel Group Pty Ltd v Chief Executive Officer of Customs [2007] AATA 1139, at [203] - [236].

12. From what I understand of the Respondent’s submissions, it appears that the units identified above were largely randomly selected by the Respondent for consideration.

13. Taking into account the randomness of the selection and the breadth of the documents that are being sought, I can only conclude that the Respondent is here engaging in what can best be described as a “general fishing expedition” without targeting any specifically relevant information which is in the possession of the Applicant.

14. In this, I rely largely on the decision of Deputy President Forgie in General Merchandise and Apparel Group, and also specifically on the decision in Botany Bay Instrumentation & Control Pty Limited v Stewart (1984) 3 NSWLR 98 where Powell J listed the circumstances in which a subpoena can be set aside. That list includes a situation where the subpoena has been issued for a purpose which is impermissible as, for example, being part of a fishing expedition.

15. It is, in my view, inappropriate in proceedings of this nature to have a summons issued which is largely speculative in nature, seeking general information about seven seemingly randomly selected certificate and diploma courses.

16. This amounts to what could best be described as the Respondent looking for a case, rather than the Respondent looking for material which might support a case which the Respondent has already identified. It is that later objective which in my view is best served by the issue of a summons. The former is nothing more than a fishing exercise dressed up as a summons request.

    DECISION

17. Accordingly, the Summons issued on 12 May 2015 to the proper officer of Pacific International College is revoked.

I certify that the preceding 17 (seventeen) paragraphs are a true copy of the reasons for the decision herein of Professor R Deutsch, Deputy President

................................[sgd]........................................

Associate

Dated 28 July 2015

Dates of hearing	26 and 29 June 2015
Counsel for the Applicant	Ms C Currie
Solicitors for the Applicant	Denison Toyer
Solicitors for the Respondent	In house