Panayiotides and Australian Securities and Investments Commission

[2018] AATA 2383

Panayiotides and Australian Securities and Investments Commission [2018] AATA 2383 (19 July 2018)

Division:                  TAXATION & COMMERCIAL DIVISION

File Number:           2017/1977

Re:Andrew Panayiotides

APPLICANT

AndAustralian Securities and Investments Commission

RESPONDENT

DECISION

Tribunal:Deputy President B W Rayment

Date:19 July 2018

Place:Sydney

If the persons named in the summonses locate documents in their possession which fall within the description contained in the summonses, or obtain them from an agent if that can be done without expense, I direct that they should be located prior to the hearing date which will be fixed for these proceedings, and that they should be produced to the Tribunal for its examination. No access will be given to documents so produced until further order.

.....................................[SGD]...................................

Deputy President B W Rayment

Catchwords

PRACTICE AND PROCEDURE – production and inspection – summons to produce documents – objected to on the grounds that the documents sought were manifestly irrelevant, too broad, oppressive and caused the summonsed parties stress and difficulty – whether the respondent can seek to set aside the summonses – respondent allowed to apply to set aside summons – whether the summons required summonsed parties to seek documents from agents to answer the summons and discussions concerning any expenses incurred – summonsed party directed to produce documents in their possession or obtained without expense from an agent, but without access to any person until further order

Legislation

Administration Appeals Tribunal Act 1975 (Cth), Compilation No. 40 dated 18 June 2015, s 40(1A)
Administration Appeals Tribunal Act 1975 (Cth), Compilation No. 46 dated 11 May 2018,
s 40A(1)(b)

Corporations Act 2001 (Cth), ss 946A, 961B, 961G, 961H, 961J

Cases

Botany Bay Instrumentation & Control Pty Ltd and anor v Stewart and anor [1984] 3 NSWLR 98
Comcare v Maganga [2008] FCA 285
Fried v National Australia Bank [2000] FCA 911
Re ACI International (1986) 11 ACLR 240
Steele and Comcare (Compensation) [2018] AATA 481

Trade Practices Commission v Kimberley Homes Pty Ltd (unreported, Federal Court, 19 July 1989)

REASONS FOR DECISION

Deputy President B W Rayment

19 July 2018

1. On 4 April 2017, Mr Panayiotides applied to the Tribunal to review the decision of a delegate of Australian Securities and Investments Commission (ASIC) to make an order banning him from providing any financial services permanently.

2. ASIC has asserted in its Statement of Facts, Issues and Contentions filed in these proceedings inter alia, that the applicant was not a person of good fame or character and that he contravened or failed to comply with sections 946A, 961B, 961G and 961J of the Corporations Act 2001 (Cth) (the Act).

3. The applicant has caused to be issued summonses to produce against two former clients of his who are referred to in ASIC’s Statement of Facts, Issues and Contentions, and the clients in question have objected to the summonses. I set down the questions arising as proceedings to set aside the summonses, and ASIC and the applicant were represented by counsel and the two persons to whom the summonses were addressed represented themselves.

4. The summonses sought from each of the former clients, Ms McKenzie and Ms Stubberfield, the following documents:

   1.A copy of:

   (a)all financial statements, income tax returns and a statement of assets and liabilities for the years 2009-2016 in respect of:

   (i)     your personal assets and income held or earned in your own name or in another person’s name for your benefit;

   (ii)    Your Self-Managed Superannuation Fund(s).

5. Mr Fitzgerald QC who appeared for ASIC moved to set aside the summonses on behalf of ASIC and if that should be impermissible, ASIC supported the objections of the two persons summonsed and offered additional grounds on which the order could be made. He submitted first that the documents sought were manifestly irrelevant. He characterised the issue in the case as to whether, when the applicant was employed by Morgan Stanley, he was in breach of the Act by advising the individual clients in question to enter into very risky strategies between January 2013 and May 2015. He submitted that the summonses called for documents going well beyond the issues arising in the case, both as to the period involved and as to the nature of the documents sought. He submitted that the terms of the summonses were far too broad and oppressive. He submitted that sufficient trading details appeared from the s 37 documents.

6. A question arose during submissions as to whether the summonses required the persons summonsed to go to agents such as accountants to answer the summons, on the basis that it required production of documents within the possession or power of the persons summonsed. The summonses issued did not expressly so provide.

7. Discovery rules in courts typically provide for the listing and production of documents in the power of a party, which would include documents held by agents such as accountants. A discovery order is directed at a party, as distinct from a witness or third party. The use of a summons in the Tribunal or a subpoena in a court to call for discovery against a third party is impermissible. There is nothing about the terms of the summonses issued in this case to refer to documents in the possession or power of the persons summonsed, but it is arguable that former section 40(1A) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act),[1] when that section was in force, meant that a summons issued while that section was in force should be so construed. The power to issue a summons for production until the passage of Act No 60 of 2015, is a power to issue a summons requiring the production of “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”.

   [1] Administration Appeals Tribunal Act 1975 (Cth), Compilation No. 40 dated 18 June 2015.

8. At the present time, the relevant power is contained in s 40A(1)(b) of the AAT Act,[2] which confers power to issue a summons for the production of “any document or other thing specified in the summons”, an expression which is different to that used in former s 40(1A).

   [2] Administration Appeals Tribunal Act 1975 (Cth), Compilation No. 46 dated 11 May 2018.

9. Whether the usual from of summons requires the person to whom it is addressed, to go to agents to ask them to produce documents is not immediately apparent.

10. If the right construction of the summonses would require the persons named to incur expense by obtaining documents from an agent, and especially if the person named in the summons is not a party, it may be that the Tribunal would excuse the person named in the summonses from the obligation to comply with it, if the person who causes the summons to be issued declines to pay any expense incurred in obtaining a copy of the documents from the agents.

11. On the other hand, if the documents can be produced by an agent electronically, and without expense, it would be a reasonable response to the summons to go to an agent. The same would be true if the person who has caused the summons to be issued meets any expense incurred.

    SUBMISSIONS

12. Mr Fitzgerald QC submitted that the summonses were oppressive and referred to the need for the summonses to be for the purpose of the proceedings. He submitted that the summonses called for the production of documents which were manifestly irrelevant.

13. He also submitted that the attempts made on behalf of the applicant’s representatives to enforce the summonses were heavy handed and cast in threatening terms.

14. In answer to my question as to whether material going to the financial circumstances of each client might not be material to the breach of duty alleged against the applicant, Mr Fitzgerald submitted that in the present case, the risk profile of each client was what was most important rather than whether any individual transaction resulted in a profit or a loss. If the advice was risky, he submitted, then whether it resulted in a profit or a loss was beside the point.

15. Ms Stubberfield made reference to the significant impost that a search for the documents in question would impose upon her and referred to stress and personal difficulty which the proceedings were causing her, having to re-live painful matters from her past.

16. She and Ms McKenzie referred mainly to matters that could be relevant on the final hearing of the proceedings rather than to the matters directly relevant to the present application.

17. Ms McKenzie, and I took Ms Stubberfield as well, to submit that their private financial affairs were irrelevant to the case.

18. It is clear that each of the persons summonsed experienced upset that the summonses called for a host of information which they regarded as private matters and each submitted that the burden of locating the documents was substantial.

19. The relevant parts of the applicant’s written submission were as follows:

    8.First, the summonsed documents are relevant[3]^,[4] to the Tribunal's determination of the correct or preferable decision in this case. They will tend to prove the witnesses' income and losses resulting from options and other investments, which goes to several issues:

    [3] On a dispute about inspection of summonsed documents, the test of relevance is whether "there is a real possibility that [the documents]... may assist in the resolution of issues in the proceedings Comcare v Maganga [2008] FCA 285 (Bennett J) at [37] citing Waind v Hill & National Employees Mutual General Association [1978] 1 NSWLR 372 (M off it P).

    [4] ASIC Contentions at paragraph 93.

    a.the "client's relevant circumstances" within the meaning of s961B of the Corporations Act 2001(Cth) (Act);

    b.the question of advice appropriateness under s961G of the Act;

    c.the correctness of disclosures by the witnesses to Morgan Stanley regarding their level of experience in derivates and other trading on the relevant account opening forms;

    d.Ms Stubberfield's evidence that she told the applicant that "she knew nothing about shares/options trading" in 2011;³

    e.quantum of trading losses and gains over the period of time that the witnesses traded with both Morgan Stanley and previously with Shaw and Partners, both of which are relevant to:

    i.      findings of contravention; and

    ii.     the gravity of any proven contraventions in the penalty phase of the hearing; and

    f.the correctness of ASIC's contentions regarding the quantum of the witnesses' losses in paragraphs 89 and 103 and of its Statement of Facts Issues and Contentions.

    9.Second, the Tribunal is obliged to ensure that each party is given a reasonable opportunity to present their case. Specifically, the Tribunal must accord the parties procedural fairness. The requirement to accord procedural fairness includes a requirement to allow a party to test the evidence of a witness.[5] ASIC has put the quantum of trading losses as an issue in this case. The applicant is entitled to test what is asserted by ASIC in paragraphs 89 and 103 and of its Statement of Facts Issues and Contentions.

    10.Third, if the witnesses are concerned about personal information in the documents being disclosed, they can take comfort in the Harman-type implied undertaking that applies:

    Part 5.3(c), General Practice Direction Riven under section 18B of the Administrative Appeals Tribunal Act 1975.

    [5] Comcare v Maganga [2008] FCA 285 {Bennett J} at [39].

20. Paragraphs 89 and 103 of ASIC’s Statement of Facts, Issues and Contentions were as follows:

    89.Ms McKenzie estimates that her trading fund lost over $1,000,000 as a result of the applicant’s advice during the time she was trading with the applicant.

    …

    103.Ms Stubberfield says that while she does not know how much money she lost while being advised by the applicant, she believes she started with $12,000 and $86,000 in the trading accounts, and received additional money from other trading activities into those accounts, but that the larger (superannuation) account was wiped out and she had to draw down on her mortgage to cover trading losses in the account.

21. Mr Cozens of counsel, who appeared for the applicant, submitted that the financial circumstances of the individual clients were “centrally important” to the case.

22. Mr Cozens submitted that one of the purposes of the summons is to ascertain what losses were suffered by the clients, and submitted that the quantum of such losses does not appear from the voluminous s 37 documents.

23. He also referred to paragraph 37 and 38 of ASIC’s Statement of Facts, Issues and Contentions which are as follows:

    37.As a provider of financial product advice and personal advice, the applicant was subject to the following financial services laws in connection with his advice:

    (a)he was required to act in the best interests of his clients (s 961B(1));

    (b)he would satisfy that duty to act in the clients’ best interests if he could prove that he had done each of the things in s 916B(2), including relevantly that:

    (i)     he had identified the clients’ objectives, financial situations and needs that were disclosed to him by the clients through instructions (s 961B(2)(a));

    (ii)    he had identified the objectives, financial situation and needs of the clients that would reasonably be considered as relevant to advice sought on that subject matter (the clients’ ‘relevant circumstances’) (s 961B(2)(b)(ii)); and

    (iii)    he had based all judgments in advising the clients on those relevant circumstances (s 961B(2)(f));

    (c)he was required to only provide the advice to his clients if it would be reasonable to conclude that the advice was appropriate to the clients, having satisfied his duty under s961B to act in the best interests of the clients (s 961G); and

    (d)if he knew, or reasonably ought to have known, that there was a conflict of interest between the interests of his clients and his own interests, he was required to give priority to the clients’ interests when giving the advice (s 961 J(1)).

    38.ASIC contends that the applicant’s advice and conduct in relation to each of Mr Stanley, Ms McKenzie and Ms Stubberfield between January 2013 and March 2015 breached these obligations. In particular, as a result of the applicant’s advice and conduct, each of these clients’ portfolios were exposed predominantly to cash-covered short (sold) ETO positions, which:

    (a)was inappropriate and risky when considering the clients’ relevant circumstances;

    (b)caused the clients to lose large proportions of their invested funds, including substantial losses from their superannuation funds; and

    (c)caused the clients to incur cash losses in meeting margin calls.

24. Mr Cozens submitted that the documents called for by the summonses also were relevant to the “risk appetite” of the individual clients, since, as I understood it, they would reveal matters going to that possible issue.

25. As to the time period in the summonses, Mr Cozens submitted that Ms McKenzie’s trading period with the applicant began in 2001. Ms Stubberfield traded from 2011, but made a representation as to her earlier experience to which the documents called for may relate.

26. Mr Cozens also submitted that ASIC had no standing to seek to set aside the summonses, and noted that the application by ASIC was made without notice. The application was listed to enable the applicant to meet an application to set aside the summonses, and I do not think that the fact that ASIC became an applicant for that relief occasioned prejudice. As to the ability of ASIC to be an applicant for relief, Mr Fitzgerald referred me to the decision of Powell J in Botany Bay Instrumentation & Control Pty Ltd and anor v Stewartand anor [1984] 3 NSWLR 98 at 101-102, which is to the effect that a party to proceedings has standing to apply for a subpoena addressed to a third party to be set aside. That decision is consistent with the decision of Hill J in Trade Practices Commission v Kimberley Homes Pty Ltd (unreported, Federal Court, 19 July 1989) to which Weinberg J referred to in Fried v National Australia Bank [2000] FCA 911 at [16] (‘Fried’), and inconsistent with the decision of Beach J in Re ACI International (1986) 11 ACLR 240, which expressly disapproved the judgment of Powell J. Weinberg J, for his part, indicated at [19] a preference for the decisions of Powell J and Hill J although he did not need to reach a firm view about the question.

27. I am prepared to follow the decision of Powell J and Hill J. The AAT Act confers a wide power to make directions, which is capable of use to arrive at a similar result to the exercise by a court of its inherent power to prevent an abuse of process. In any event, the persons summonsed are in effect, applicants to set aside the summonses, and it was convenient to hear the submissions of Mr Fitzgerald in support of that application, since the persons named in the summonses were not represented.

    DISCUSSION

28. I will next seek to deal with the issues arising on the application to set aside the summonses. I take the recent decision of Deputy President Boyle in Steele and Comcare (Compensation) [2018] AATA 481 to be a good summary of the established general principles.

29. An appropriate starting point is whether the documents sought have relevance in the sense that their production may assist in the resolution of the issues arising from the review. I have set out in [19] above, the two ASIC allegations which refer to matters relevant to losses estimated to have been suffered by the witnesses. Mr Fitzgerald’s submission that whether the transactions resulted in profits or losses was not a critical matter going to the breach of a financial services law. Mr Cozens submitted that the applicant wished to have access to the tax returns to ascertain how the persons named in the summonses treated the transactions in the returns and submitted that the s 37 documents left that matter uncertain. His submission was that the way in which the witnesses’ tax returns were expressed might cast light on the losses they actually incurred.

30. Mr Fitzgerald’s submission gives little weight to the fact that ASIC’s Statement of Facts, Issues and Contentions includes allegations relating to the estimates given by the witnesses of losses which they incurred. He did not seek to withdraw the allegations as irrelevant. Perhaps they are said to be relevant to sanction rather than the question of contravention. Their significance, if any, must lie in the fact of the losses rather than the witnesses’ estimates of the losses. On the other hand, the reach of Mr Cozens’ submission does not cover more than the tax returns for years when the applicant worked for Morgan Stanley, and the correctness of the suggestion that the s 37 documents do not make losses apparent, will depend on matters to which I was not taken on the applications, and which will depend on the contents of the voluminous s 37 documents which will be referred to at the hearing. The tax returns may well claim carry-forward losses, depending on how they have been prepared.

31. They would, however, not be the best evidence of the losses in question. They might not assist at all. The persons summonsed are third parties and the information appearing in the returns is naturally sensitive and confidential. One possible solution is to ask the persons summonsed to collect the tax returns, and produce them to the Tribunal. Whether it is appropriate to give the applicant leave to inspect them could then be decided during the hearing depending on how the hearing develops.

32. As to the period of time nominated in the summonses, Mr Cozens’ submission that it was to be justified because representations were allegedly made, according to Mr Panayiotides, by one of the persons summonsed as to her relative inexperience in the market. Such a purpose of the summons in the case of that person is suggestive of fishing. It was not submitted on behalf of Mr Panayiotides that he suspected on reasonable grounds that the documents summonsed would falsify what was apparently said to him by the witness. Weinberg J set aside a subpoena issued in similar circumstances in Fried. At [29] and [30] his Honour said:

    29 It is not appropriate, in my view, for a Court to permit a subpoena to stand which does little more than trawl for documents which may be used to impugn the credit of a particular witness. This is particularly so when the documents sought have nothing to do with any of the issues in dispute in the proceeding. The Court must be alert to ensure that any subpoena which is issued has a legitimate forensic purpose. That purpose must be identifiable, and likely to facilitate the conduct of the proceeding, not merely to oppress a party or witness.

    30 The explanation given as to the purpose for which the documents identified in the subpoena were sought was altogether too vague and unsatisfactory to persuade me of its legitimacy. It is not a legitimate use of a subpoena to have the specified documents produced in a speculative attempt to identify whether the documents might, ultimately, be of some evidential value. It was for these reasons that I ordered that the subpoena be set aside.

1. Mr Cozens submitted that the summonses go to a critical aspect of the case made by ASIC against his client, which is the allegation that he was in breach of s 961B of the Act. He submitted that the financial situation of each client was at the heart of contravention of that section.

2. Section 961B provides as follows:

   961B  Provider must act in the best interests of the client

   (1)The provider must act in the best interests of the client in relation to the advice.

   (2)The provider satisfies the duty in subsection (1), if the provider proves that the provider has done each of the following:

   (a)identified the objectives, financial situation and needs of the client that were disclosed to the provider by the client through instructions;

   (b)identified:

   (i)     the subject matter of the advice that has been sought by the client (whether explicitly or implicitly); and

   (ii)    the objectives, financial situation and needs of the client that would reasonably be considered as relevant to advice sought on that subject matter (the client’s relevant circumstances);

   (c)where it was reasonably apparent that information relating to the client’s relevant circumstances was incomplete or inaccurate, made reasonable inquiries to obtain complete and accurate information;

   (d)assessed whether the provider has the expertise required to provide the client advice on the subject matter sought and, if not, declined to provide the advice;

   (e)if, in considering the subject matter of the advice sought, it would be reasonable to consider recommending a financial product:

   (i)     conducted a reasonable investigation into the financial products that might achieve those of the objectives and meet those of the needs of the client that would reasonably be considered as relevant to advice on that subject matter; and

   (ii)    assessed the information gathered in the investigation;

   (f)based all judgements in advising the client on the client’s relevant circumstances;

   (g)taken any other step that, at the time the advice is provided, would reasonably be regarded as being in the best interests of the client, given the client’s relevant circumstances.

   Note:   The matters that must be proved under subsection (2) relate to the subject matter of the advice sought by the client and the circumstances of the client relevant to that subject matter (the client’s relevant circumstances). That subject matter and the client’s relevant circumstances may be broad or narrow, and so the subsection anticipates that a client may seek scaled advice and that the inquiries made by the provider will be tailored to the advice sought.

   Advice given by Australian ADIs—best interests duty satisfied if certain steps are taken

   (3)If:

   (a)the provider is:

   (i)an agent or employee of an Australian ADI; or

   (ii)otherwise acting by arrangement with an Australian ADI under the name of the Australian ADI; and

   (b)the subject matter of the advice sought by the client relates only to the following:

   (i)a basic banking product;

   (ii)a general insurance product;

   (iii)consumer credit insurance;

   (iv)a combination of any of those products;

   the provider satisfies the duty in subsection (1) in relation to the advice given in relation to the basic banking product and the general insurance product if the provider takes the steps mentioned in paragraphs (2)(a), (b) and (c).

   General insurance products—best interests duty satisfied if certain steps are taken

   (4)To the extent that the subject matter of the advice sought by the client is a general insurance product, the provider satisfies the duty in subsection (1) if the provider takes the steps mentioned in paragraphs (2)(a), (b) and (c).

   Regulations

   (5)The regulations may prescribe:

   (a)a step, in addition to or substitution for the steps mentioned in subsection (2), that the provider must, in prescribed circumstances, prove that the provider has taken, to satisfy the duty in subsection (1); or

   (b)that the provider is not required, in prescribed circumstances, to prove that the provider has taken a step mentioned in subsection (2), to satisfy the duty in subsection (1); or

   (c)circumstances in which the duty in subsection (1) does not apply.

3. The individual who is to provide the advice is referred to as the provider in the section. He or she is required to identify the objectives, financial situation and needs of the client “that were disclosed to the provider by the client through instructions”. The disclosure to the provider by the client is what is critical for the purpose of s 961B(2). If the instructions are wrong, then the provider will not err by relying upon the instructions in the ordinary case, subject to what appears from s 961H. The finder of fact should not ask himself, what were the actual financial circumstances of the client, but what did the client disclose those circumstances to be.

4. Section 961G of the Act provides as follows:

   961G  Resulting advice must be appropriate to the client

   The provider must only provide the advice to the client if it would be reasonable to conclude that the advice is appropriate to the client, had the provider satisfied the duty under section 961B to act in the best interests of the client.

   Note: A responsible licensee or an authorised representative may contravene a civil penalty provision if a provider fails to comply with this section (see sections 961K and 961Q). The provider may be subject to a banning order (see section 920A).

5. Again, that section requires the provider to satisfy the duty under s 961B, which focuses on the disclosure of the client to the provider, rather than the actual financial situation and actual needs of the client.

6. Section 961H of the Act requires, in limited circumstances, what the provider should do, if there is a suspicion that the disclosure made by the client is incorrect. That section provides:

   961H  Resulting advice still based on incomplete or inaccurate information

   (1)If it is reasonably apparent that information relating to the objectives, financial situation and needs of the client on which the advice is based is incomplete or inaccurate, the provider must, in accordance with subsections (2) and (3), warn the client that:

   (a)the advice is, or may be, based on incomplete or inaccurate information relating to the client’s relevant personal circumstances; and

   (b)because of that, the client should, before acting on the advice, consider the appropriateness of the advice, having regard to the client’s objectives, financial situation and needs.

   (2)The warning must be given to the client at the same time as the advice is provided and, subject to subsection (3), by the same means as the advice is provided.

   (3)If a Statement of Advice is the means by which the advice is provided, or is given to the client at the same time as the advice is provided, the warning may be given by including it in the Statement of Advice.

   Note: The Statement of Advice must at least contain a record of the warning (see paragraphs 947B(2)(f) and 947C(2)(g)).

   (4)If 2 or more individuals provide the advice and one of those individuals provides a warning in accordance with this section, the other individuals are taken to have complied with this section.

   (5)Nothing in this section affects the duty of the provider under section 961B to make reasonable inquiries to obtain complete and accurate information.

   Note: A responsible licensee or an authorised representative may contravene a civil penalty provision if a provider fails to comply with this section (see sections 961K and 961Q). The provider may be subject to a banning order (see section 920A).

7. That section is engaged only if it is reasonably apparent that information relating to the objectives, financial situation and needs of the client on which the advice is based is incomplete or inaccurate. The duty then is still not a duty to find out the actual objectives, financial situation and needs of the client, but rather to give a warning to the client.

8. ASIC’s Statement of Facts, Issues and Contentions does not allege any contravention of s 961H.

9. Paragraph 91 of the document alleges that the advice to Ms McKenzie was inappropriate having regard to her relevant financial circumstances that were known to the applicant by virtue of their long association and the matters disclosed in her account application document including certain matters (emphasis supplied).

10. A similar allegation is made regarding Ms Stubberfield in paragraph 105 of the document.

11. While paragraphs 91 and 105 refer to matters known to the applicant by various means, including by virtue of their long association, it is not apparent to me that the actual circumstances of the persons summoned, as distinct from what they gave the applicant to understand, are properly made the subject of a summons to produce.

12. The applicant’s Statement of Facts, Issues and Contentions does not plead to allegations made in the ASIC document in detail. However, one allegation it makes is contained in paragraphs 8 and 9, namely that “the portfolios and positions of… Ms McKenzie and Ms Stubberfield were already extant as at January 2013 – when [they] transferred their accounts from Shaw to Morgan Stanley”, and that these portfolios and positions were relevant circumstances within the meaning of s 961B.

13. I take this to be an assertion that the open positions transferred to Morgan Stanley by the clients were part of the financial situation of each disclosed by the clients to the applicant. That assertion similarly does not show that the documents for which the summonses call are relevant to the issues in these proceedings.

14. I therefore reject the submission of Mr Cozens that the terms of s 961B of the Act show the relevance of the financial circumstances of the persons summoned, and justify the issue of the summonses.

15. I have set out in [19] above, paragraphs 8, 9 and 10 of the applicant’s written submissions in support of the summonses. I accept what is submitted in paragraphs 9 and 10 of those submissions. Paragraph 9 has the support of the decision of Bennett J in Comcare v Maganga [2008] FCA 285, a decision given on appeal from the Tribunal.

16. It is the contents of paragraph 8 (b), (c) and (d) of the applicant’s submissions, together with what I have written in [31] above which have caused me to doubt that it is appropriate that the summonses should be set aside.

    DECISION

17. If the persons named in the summonses locate documents in their possession which fall within the description contained in the summonses, or obtain them without expense from an agent, I direct that they should be located prior to the hearing date which will be fixed for these proceedings, and that they should be produced to the Tribunal for its examination. I will be better placed to determine whether access should be given to the applicant and its advisers during the hearing itself. If I consider that the need to give procedural fairness to the applicant requires that access be given to the documents or some of them, then such access will be able to be provided as the exigencies of the hearing require. Otherwise no access will be given. Since no access will be given to any person until further order, I have decided not to make any order having the effect of varying the wide reach of the summonses. Nor will the summonses be set aside having regard to the direction I have made.

I certify that the preceding 49 (forty-nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment

........................................................................

Associate

Dated: 19 July 2018

Date of hearing:

27 June 2018

Counsel for the Applicant:

Mr N Cozens

Solicitors for the Applicant:

Mr H Denton, P & B Lawyers

Counsel for the Respondent:

Mr G Fitzgerald

Solicitors for the Respondent:

Ms E Lee, ASIC