Pantazopoulos and Military Rehabilitation and Compensation Commission
[2011] AATA 101
•16 February 2011
CATCHWORDS – PRACTICE AND PROCEDURE – summons procedures – standard order for inspection of documents – issues arising from standard order – principally no provision in order for an objection to be heard and determined - power of Tribunal to issue summonses – incidental power to hold a hearing in considering issues relating to a summons.
Cosco Holdings Pty Ltd v Commissioner of Taxation [1997] FCA 1504
Dorajay Pty Ltd v Aristocrat Leisure Ltd [2005] FCA 588
Re General Merchandise and Apparel Group P/L and Chief Executive Officer of Customs [2009] AATA 988; (2009) 51 AAR 1; 114 ALD 289
Spatialinfo Pty Ltd v Telstra Corporation Ltd [2005] FCS 455
Waind and Hill v National Employers’ Mutual General Association Ltd [1978] 1 NSWLR 372
Administrative Appeals Tribunal Act 1975 ss 33, 33(1)(a), 40(1A)-(1D), 61
DECISION AND REASONS FOR DECISION [2011] AATA 101
ADMINISTRATIVE APPEALS TRIBUNAL )
) 2010/4656
GENERAL ADMINISTRATIVE DIVISION )
Re:KOULE PANTAZOPOULOS
Applicant
And:MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal: Deputy President S A Forgie
Place: Melbourne
Date: 16 February 2011
Decision:The Tribunal:
1.declines to sign the standard order for the inspection of documents set out in the Tribunal’s Summons Procedures; and
2.instead makes the decision set out in [8] of these Reasons for Decision.
S A Forgie
Deputy President
REASONS FOR DECISION
These reasons explain why I declined to sign an order in the form of a standard order to inspect documents produced to the Tribunal in response to three summonses. The form of a standard order is provided for in Chapter 6 of the Tribunal’s Registry Procedures Manual, which is entitled “Summons Procedures”. It is also referred to in a document entitled “Summons to Produce Documents Procedures”.[1] The second is, I understand, a summary of the first and sent to those firms of legal practitioners engaged in a pilot programme relating to summons procedures. The information in the two documents is consistent and, unless I specify otherwise, I will refer to the procedures they set out in the summary and refer to it as the summons procedures. I gave leave to the parties to inspect the documents and set out the order in which they may do so.
BACKGROUND
At the request of the parties, summonses were issued to various persons. Each required that the person to whom it was addressed produce to the Tribunal the documents described on the face of the summons. Production was required on or before 9 February 2011. As required by the summons procedures, the Case Service Officer wrote to the solicitors for each of the parties advising them of the summonses issued at the request of the other and of the return date. The letters, dated 14 and 18 January 2011,[2] read in part:
“On the summons return date, or upon receiving the documents, the Tribunal will normally make a standard inspection order which gives the applicant immediate access to any documents produced and thereafter gives the respondent access 7 days later.
Accordingly, you are not required to attend at the Tribunal on the summons return date.
…
However, if you object to the issue of the summons or a standard inspection order, please contact the Tribunal within 7 days of the date of this letter.”
[2] A further letter to the same effect is dated 28 January 2011. Nothing turns on the dates of the letters.
When the time for the return of summons arrived on 9 February 2011, I was presented with an order by a Case Service Officer in Registry and asked to sign it in accordance with the summons procedures. The order was in the form of a standard order generated from the Tribunal’s computerised case management system; TRACS. It read:
“1. Pursuant to subsection 40(1D) of the Administrative Appeals Tribunal Act 1975, the parties are given leave to inspect documents under summons in accordance with the following schedule:
Party with leave to inspect documents Documents produced by (date produced) Party’s leave to inspect documents commences Koule Panatazopoulos Lifecare Physiotherapy (08/02/2011) 9 February 2011 Koule Panatazopoulos Mr Craig Timms & the Practice Manager
(01/02/2011)9 February 2011 Military Rehabilitation and Compensation Commission Lifecare Physiotherapy (08/02/2011) 16 February 2011 Military Rehabilitation and Compensation Commission Mr Craig Timms & the Practice Manager
(01/02/2011)16 February 2011
2.Notwithstanding paragraph 1:
(a)A party whose leave to inspect documents commences earlier than another party’s leave to inspect those documents, may object to that other party inspecting some or all of those documents.
(b)An objection must be made in writing, must include reasons for the objection and must be given to the Tribunal and to the other party.
(c)If the Tribunal receives such an objection before the other party’s leave to inspect the documents commences, these orders, insofar as they give leave to the other party to inspect the documents which are the subject of the objection, are suspended until further order.
(d)Parties may apply to the Tribunal for re-instatement or variation of the orders which have been suspended, or for new orders giving leave to inspect the documents.”
ISSUES ARISING FROM STANDARD ORDER
At the time I had to decide whether to make an order in these terms, the summons procedures were not in my mind. I saw only the problems with the standard order that I was expected to sign. Apart from formatting and other problems that I will not dwell upon, my principal difficulty with the standard order lies in the fact that it makes no provision for an objection to be heard and determined. Instead, it suspends the inspection order and puts the onus on the other party or parties to apply for re-instatement or variation of the inspection order. Given the fact that the standard order sets the order in which the parties may inspect the summonsed documents, lodgement of the objection ends the inspection process for those later in the chain of inspection regardless of whether that objection has any sound basis at all. Suspension will only come to an end, if it does so at all, at the instigation of a party or of the parties later in the inspection chain.
This is contrary to what has, in the past, been the Tribunal’s normal practice i.e. to hold a hearing to hear the objection. In the past, that hearing has been convened quickly and informally. The party making the objection must put forward grounds for doing so. The other party or parties may respond. Generally, the material in the documents themselves and the issues raised by the decision under review will be enough for the Tribunal to decide the matter. That makes logical sense for the material in the documents and reasons for objecting will be known by the party objecting. The other party or parties may guess at them at times or they may not for they will not be the persons who have formulated the objection and presumably have some knowledge of the information, or the sort of information, which is in the documents and to which they are objecting. That is why they respond and are not put in a position of trying to make out a ground for resisting the objection.
The standard order does away with the traditional order. That it does away with tradition is not a problem but that it seems to overlook the logic that underpinned that tradition is. By providing that the effect of an objection to inspection is a suspension of the operation of the rest of the order, the standard order leaves itself open to be used as a tool by the unscrupulous party earlier in the chain of inspection than another. Certainly, reasons have to be given but the order does not contemplate that the Tribunal will take any step to hear and determine the objection. Instead, it is left to a party or to the parties later in the chain of inspection to seek the reinstatement or a variation of the standard order. That is the party which will not have seen the documents and can only guess at their contents.
While I would not wish to suggest that the firms representing the parties in this case would act otherwise than with the utmost professionalism and propriety, the form of the order leaves the summons process open to abuse by a party or representative who does not act with the expected professionalism and propriety.
In an attempt to solve these problems, I declined to make the standard order and, instead, made the following order:
Provided the Applicant does not object to the Respondent’s inspecting the documents, the parties are given leave to inspect documents produced under summons (the summonsed documents) in accordance with the following schedule:
Party with leave to inspect documents Documents produced by (date produced) Party’s leave to inspect documents commences Koule Panatazopoulos Lifecare Physiotherapy (08/02/2011) 9 February 2011 Koule Panatazopoulos Mr Craig Timms & the Practice Manager
(01/02/2011)9 February 2011 Military Rehabilitation and Compensation Commission Lifecare Physiotherapy (08/02/2011) 16 February 2011 Military Rehabilitation and Compensation Commission Mr Craig Timms & the Practice Manager
(01/02/2011)16 February 2011
2.If the Applicant objects to the Respondent’s inspecting documents the Respondent’s leave to inspect the documents on and from 16 February 2011 is set aside until the objection is determined by the Tribunal.
S A Forgie
Deputy President
NOTES:
A.A party who is given leave to inspect the summonsed documents at a time earlier than another party is given leave may object to that other party or those other parties’ inspecting some or all of those documents.
B.Unless the Tribunal makes an order permitting an objection to be made orally, an objection must:
(i) be in writing;
(ii) set out the party’s reasons for objection; and
(iii)be lodged with the Tribunal; and
a copy must be given to the other party or parties in the matter.
C. On lodgement of an objection, the Tribunal will make orders:
(i)giving the other party or parties an opportunity to make submissions regarding the grounds on which the objection is made (and so the reasons for making it); and
(ii)setting a time at which both or all parties may make any further submissions or put any further arguments they wish to put regarding the objection;
D.The Tribunal will then:
(i)consider the objection;
(ii)decide whether to allow or disallow the objection in whole or in part;
(iii)either:
·refuse to give leave to the other party or parties to inspect all or some of the summonsed documents to which the Applicant has objected; or
·permit the Respondent to inspect all or some of the summonsed documents to which the Applicant has objected; and
(iv)if its decision requires it, set a new timetable according to which leave to inspect is given to the other party or parties.”
EXAMPLES OF AREAS OF CONCERN WITH THE SUMMONS PROCEDURES
After making the order, I looked again at the summons procedures. They were the subject of a pilot programme for a two month period from 4 October 2010. As that two month period has well and truly passed and they are still being followed by the Registry, I can only assume that the summons procedures are now the Tribunal’s procedures relating to the summonses. I note that objections are dealt with in the following passage:
“When an objection is lodged, the inspection orders relating to the documents that were the subject of the objection are suspended.
This means that the non-objecting party/parties will not be granted access to inspect the documents that are the subject of the objection until the objection is dealt with and the suspension is lifted or new orders are made. The inspection orders remain in force for all documents which are not the subject to the objection, and the parties can still inspect those documents in accordance with the inspection orders made.
If a party wishes to inspect documents for which inspection orders are suspended, the party can apply to the Tribunal in writing to have the orders re-instated or new orders made. Such an application will be referred to a Member to deal with at a telephone directions hearing. The Member may make an order upholding the objection or re-instating the inspection. You will be advised of the time and date of the hearing.”[3]
[3] See also Registry Procedures Manual at [6.1.9]
The contents of this passage are reflected in the second paragraph of the standard order but it raises a further problem that does not appear in the standard order. It states that the inspection order is suspended in relation to the documents that are the subject of an objection. The consequence is that the non-objecting party or parties will not be able to inspect those documents “until the objection is dealt with”. That suggests that the Tribunal will follow the traditional course and deal with the objection. That suggestion is contrary to the statement to the effect that the non-objecting party may apply to have the orders reinstated or new orders made. That statement does not suggest that the objection will be dealt with.
I would also note that the passage refers to the application for reinstatement’s being dealt with at a directions hearing. This is consistent with the statement earlier in the summons procedures that a directions hearing may be held when an objection is made to the issue of a summons as opposed to an objection to inspection of documents already produced on summons. That appears in the following passage:
“A party can object to a summons being issued, for example because the information sought in the summons is not relevant to the issues before the Tribunal. A person who has been summoned to produce documents can also object to the summons, because it is, for example, oppressive or too onerous (in terms of costs, time or effort) for the person to comply with it. There may also be confidentiality, client legal privilege or public interest reasons for objecting to a summons.
The objection should be made in writing.
The objection will be referred to a Tribunal Member. The Member may ask the parties to indicate their views about the objection. In that case, a copy of the objection will be sent to the parties. If all parties agree in writing that the summons should be revoked or set aside, the Tribunal Member may decide to revoke it or set it aside without holding a hearing.
The member may require the parties to attend a directions hearing to deal with the objection. If the person summoned has objected, that person may also be required to attend the hearing.
Sometimes a party or a person summoned may request a variation of the summons. For example, this may be for an extension of time to comply with the summons, or a request to limit the scope of the summons. Such a request will be forwarded to a Tribunal Member to decide, in consultation with the parties, whether the variation is appropriate. You will be notified of the variation request.
Any issues that cannot be resolved may need to be dealt with by a Tribunal Member at a directions hearing. You will be notified of the time and date of the hearing.”[4]
[4] See also Registry Procedures Manual at [6.1.5]
In neither case is a directions hearing the appropriate venue. I note that [6.1.5] of the Registry Procedures Manual correctly refers to the need to consider an objection to a summons or a variation of a summons at a return of summons and makes no reference to a directions hearing. Paragraph [6.1.9] of the same document, though, does refer to objections to inspection being considered at a directions hearing.
A directions hearing is convened using the power under s 33 of the Administrative Appeals Tribunal Act 1975 (AAT Act). That section provides, in so far as it is relevant:
“In a proceeding before the Tribunal:
(a)the procedure of the Tribunal is, subject to this Act and the regulations and to any other enactment, within the discretion of the Tribunal;
(b)…
(c)…”
An objection to the issue of a summons or an objection to a party’s inspecting documents produced is not about the Tribunal’s procedures but about the exercise of the Tribunal’s power to issue a summons, to require or not require compliance with it and to authorise or not authorise inspection. These are powers given by ss 40(1A) to (1D) of the AAT Act. The power to hold a hearing to consider issues relating to a summons is a power that is incidental to the power given by ss 40(1A) to (1D). It does not arise from the general power given under s 33(1)(a).
Although not directly relevant to the matter I had to consider, I note that I have difficulties with the passage of the summons procedures headed “Objections to a summons or requesting a variation”. As a general comment, I note that it confuses an objection to the issue of a summons and an objection by the person to whom a summons is issued. The same confusion appears in [6.1.5] of the Registry Procedures Manual and yet they are separate matters.
It seems to me that the passage forgets that a summons is issued at the request of a party to a person who is not a party. Whether the summons is issued or not issued is a matter between the party making the request and the Tribunal. Underpinning the decision as to whether or not a summons should be issued is the question whether the documents or evidence identified in the summons may be relevant to the issues to be resolved by the Tribunal in reviewing the decision that is the subject of an application for review. If the request for a summons is referred to a member who wants submissions on the matter from the party requesting the summons, notice of that would be given to the other party. It would not be given to the stranger to the proceedings to whom the summons, if issued, will be addressed.
Setting aside a summons that has already been issued is a different matter. Once issued, a person is guilty of an offence if he or she does not, without reasonable excuse, comply with the summons.[5] In the case of a subpoena, and a summons is no different, three steps follow the service of a summons:
“The first is obeying the subpoena, by the witness bringing the documents to the court and handing them to the judge. This step involves the determination of any objections of the witness to the subpoena, or to the production of the documents to the court pursuant to the subpoena. The second step is the decision of the judge concerning the preliminary use of the documents, which includes whether or not permission should be given to a party or parties to inspect the documents. The third step is the admission into evidence of the document in whole or in part; or the use of it in the process of evidence being put before the court by cross-examination or otherwise. It is the third step which alone provides material upon which ultimate decision in the case rests. In these three steps the stranger and the parties have different rights, and the function of the judge differs.”[6]
[5] AAT Act, s 61
[6] Waind and Hill v National Employers’ Mutual General Association Ltd [1978] 1 NSWLR 372 at 381 per Moffit P
The summons procedures acknowledge that the person to whom the summons is issued may object to it but it does not seem to understand the different rights and roles of the parties and of that person who is a stranger to the matter. They seem to assume that an objection made by a person served with a summons may be decided in the absence of that person. The assumption appears in the passage in which it is said that a request for a variation “… will be forwarded to a Tribunal Member to decide, in consultation with the parties, whether the variation is appropriate.” The passage is consistent with a similar passage in [6.1.5] of the Registry Procedures Manual. That may be the practical course adopted in the situation in which the party at whose request the summons was issued no longer seeks the information but it will not be when that is not the situation. The Tribunal has an obligation to decide the objection on the grounds put forward by the stranger to the proceedings being asked to produce documents or attend as a witness. It will do so on the basis of the principles set out in cases such as Cosco Holdings Pty Ltd v Commissioner for Taxation[7] by Spender J. It is a matter to be decided between the stranger and the Tribunal. The parties may be given notice of the objection and given the opportunity to attend. Contrary to what is said in the summons procedures, it is not the case that the “The Member may require the parties to attend a directions hearing. If the person summoned has objected, that person may also be required to attend the hearing.” (emphasis added).
[7] [1997] FCA 1504
A party may have sufficient standing to ask the Tribunal to set aside a summons issued to a stranger to the proceeding. That is a matter to be decided after giving the parties and the stranger the opportunity to make submissions.
The summons procedures present other difficulties. They do not explain why, for example, an objection could be made to a summons on the basis of confidentiality. Stone J considered confidentiality in Dorajay Pty Ltd v Aristocrat Leisure Ltd[8] when she said that “… the confidentiality of documents sought by subpoena is a relative but not determinative issue in considering if a subpoena should be set aside …”.[9] She cited two authorities, one of which was Spatialinfo Pty Ltd v Telstra Corporation Ltd,[10] in which Sundberg J said:
“… [I]n determining whether a subpoena operates oppressively, it is appropriate to take into account a confidentiality claiwm. In Apache Northwest Pty Ltd v Western Power Corporation (1998) 19 WAR 350 at 380-381 the Full Court of the Supreme Court of Western Australia said: ‘... although, standing alone, confidentiality is not a ground for refusing to issue, or for setting aside, a subpoena, it is a factor which is to be taken into account, together with those tests for oppression which are determined by reference to the breadth of the subpoena, the definition of documents involved and the type and degree of burden placed upon those to whom the subpoena is addressed.’ The Court also referred to the existence of mechanisms for preserving confidentiality.”[11]
[8] [2005] FCA 588 at [34]
[9] [2005] FCA 588 at [36]
[10] [2005] FCA 455
[11] [2005] FCA 455 at [51]
I have only touched on some of the difficulties presented by the summons procedures given my understanding of the law relating to the power given to the Tribunal under ss 40(1A) to (1D) of the AAT Act.[12]
[12] Some of my understanding is set out in Re General Merchandise and Apparel Group P/l and Chief Executive Officer of Customs [2009] AATA 988; (2009) 51 AAR 1; 114 ALD 289 at [203]-[262]; 71-88; 354-370
I certify that the twenty one preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,
Signed: .......................................................................
Leah Berardi, Associate
Return Date of 9 February 2011
Summonsed Documents
Date of Decision 16 February 2011
Solicitor for the Applicant Mr Damian Lynch
Maurice Blackburn Lawyers
Solicitor for the Respondent Ms Shelley Johnson
Sparke Helmore
A small number of organisations/agencies representing applicant and respondents in the Tribunal’s compensation jurisdiction have been asked to participate in the pilot in each registry.
…
The applications to be included in the pilot will be applications where each of the parties is represented by one of these organisations/agencies.”
This is a document that could be expected to be made available for inspection by the public (and so perhaps could be expected to be found on the Tribunal’s website) for it is a document “… provided by the agency for the use of, or … used by, the agency or its officers in making decisions or recommendations, under or for the purposes of an enactment …” being the Administrative Appeals Tribunal Act 1975: Freedom of Information Act 1982, s 9(1).
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