Pelovski and National Disability Insurance Agency
[2022] AATA 5276
•16 December 2022
Pelovski and National Disability Insurance Agency [2022] AATA 5276 (16 December 2022)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2021/8051
Re:Zoran Pelovski
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Senior Member P Goward
Date:16 December 2022
Place:Sydney
The Tribunal refuses the Applicant’s application to revoke the 25 summonses in issue.
The Tribunal makes ancillary orders under s 40A of the AAT Act to extend the time for each third party’s time to comply with the summonses by an additional four weeks from the time of this determination.
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Senior Member P Goward
CATCHWORDS
PRACTICE AND PROCEDURE – application for the revocation of summons – twenty-five requests for summons – request for summons not in correct form – relevance of summons – whether the requests are a fishing expedition – whether the requested summons would have apparent relevance to the issue to be determined – application refused.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 40A
National Disability Insurance Scheme Act 2013 (Cth) s 33, 100
CASES
Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250
Comcare v Maganga (2008) 101 ALD 68
General Merchandise & Apparel Group Pty Ltd and Chief Executor of Customs (2009) 114 ALD 289
Hunt and Wark (1985) 40 SASR 489
Phillips and Inspector-General in Bankruptcy [2011] AATA 432
Re Pantazopoulos and Military Rehabilitation and Compensation Commission (2011) 121 ALD 148
SECONDARY MATERIALS
Administrative Appeals Tribunal Regulation 2015
REASONS FOR DECISION
Senior Member P Goward
16 December 2022
INTRODUCTION
The Applicant, Zoran Pelovski, has impairments resulting from paranoid schizophrenia and has been a participant of the National Disability Insurance Scheme (‘NDIS’) since 14 December 2018.
The Respondent approved a state of participant supports (SOPS) in the Applicant’s plan, which commenced on 21 September 2021 (the original decision). That plan adopted the same supports as the Applicant’s previous plan but changed the management of core supports ($568,219.80 over 24 months) from plan-managed to Agency-managed. The Applicant requested an internal review of that decision, which on 27 September 2021 subsequently affirmed the original decision pursuant to s 100 (6) of the National Disability Insurance Scheme Act 2013 (Cth) (‘the NDIS Act) (the decision under review).
The Applicant applied to the Tribunal for review of the internal review decision on 25 October, 2021. In particular, that the Applicant’s plan be returned to plan-managed under s 33(2)(d).
The Applicant’s plan and correspondence nominee, and personal representative in these proceedings and unregistered care provider is Ms Antoneta Krzeva. The Tribunal understands Ms Krzeva started to pay herself to provide supports from 11 January 2019. She is the Applicant’s enduring power of attorney, his ongoing primary informal support and also a long standing family friend of the same background and religion. The Applicant lives between his home and hers.
On 31 October 2022, the Respondent requested that the Tribunal issue summons by filing a completed request to issue summons form along with draft summonses for 25 separate third parties.
On 2 November 2022, the Tribunal issued the requested summonses. The Tribunal notified the parties of this, and of the opportunity to object to the summonses issued or to a party obtaining access to records returned.
On 3 November 2022, the Applicant objected to the Tribunal’s issue of the summonses. The matter was listed for interlocutory hearing. The Tribunal notes that the Respondent has yet to serve any of the issued summons on the relevant third parties.
The parties have requested the Tribunal determine the interlocutory summons issue on the papers. At the outset the Tribunal wishes to record its acknowledgement of the deep commitment and care Ms Krzeva has obviously provided to the Applicant over a very large part of his life and well before any considerations of payment were made
As the issue to be determined is confined to whether the Respondent’s requests for summons should be issued by the Tribunal, it is not necessary for the Tribunal to canvas the substantive matters of the decision under review referenced by the Applicant in their written submissions in any more detail. Further, the Applicant’s references that “the Respondent has…provided no probative evidence to support their assertion [of] unreasonable risk”; the outcomes of any s 48 reviews; the motivations of the Respondent in requesting summons and the length of time the current matter has been on foot are noted as background by the Tribunal.
RELEVANT LAW AND CASE LAW - REFUSAL OF SUMMONS
The Tribunal has the power to issue summonses under s 40A of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). A summons may be issued by “the President, an authorised member or an officer of the Tribunal”. The President or an authorised member may refuse a request to summon a person. This is not disputed by the parties in submissions.
ISSUES
The Applicant has identified two substantive issues of law which they claim are in dispute:
(a)a request for summons be made in the approved form, pursuant to Part 4 of the Administrative Appeals Tribunal Regulation 2015 (the AAT Regulations). Aspects of the approved form identified by the Applicant as in dispute relate to the number of requests on the one form and “the relevance of the evidence or documents being sought to the issue and importance …to the case”; and
(b)whether Section 40A of the AAT Act requires the request for summons be served on another party to the proceeding.
The Tribunal, taking into account the Applicant’s submissions on the issues at hand, needs to determine the following:
(a)whether the requests for summons were made correctly, with the reasons for the 25 requests contained on the one form;
(b)whether the request for summons should have been served on the Applicant and other alleged abuses of process;
(c)whether the summons should be revoked
CONTENTIONS
Issue 1- the correct form of summons
The Applicant submits that the AAT Regulation requires that a request to issue summons pursuant toss 40A of the Act should be made in the approved form (available on the Tribunal’s website). The Applicant contends that this requires that the Respondent:
complete this form for each summons you want the AAT to issue” (Emphasis added).
…By including twenty-five summons requests on the one form the Respondent would appear to have failed at the first hurdle.
Reg 11 of the AAT Regulation states that:
Form of summons
A summons referred to in section 40A of the Act must be in the approved form.
The Respondent submits that the Regulation refers to the summons themselves, and not the request to issue summons that accompanies them. The Respondent further contends that the summons:
…were in the approved forms. The Applicant makes no complaint about that. Even if, for the sake of argument, the Applicant were right, there is nothing in the Regulations or the Act which would suggest that the alleged non-compliance with r 11 of the Regulations, in requesting the summons, would invalidate the Tribunal’s exercise of power under s 40A of the AAT Act to issue the summonses. Indeed, the Applicant does not expressly suggest the summonses were invalidly issued.
More generally, the Agency notes that the single request form for the numerous summonses was in fact helpful and consistent with s 2A, 33(1), (1AB) of the AAT Act.
Conclusion
In keeping with general practice regarding requests to issue summons, the Tribunal notes that the inclusion of twenty-five summons on the one form enables the more expeditious management of this summons than 25 separate forms would do and assists the Tribunal. The Tribunal does not find that the Respondent’s failure to meet the technical and literal requirement about the number of forms to be submitted should be grounds for revoking the summons. This is especially so when the Applicant has made no submissions that the content of the form was inconsistent with the form’s requirements. Additionally, the failure to file a summons in the correct form does not ultimately prevent the issuing of the summons, and in these circumstances, requiring the Respondent to refile in the correct form is likely to delay the matter further.
Finding
The Tribunal finds that the request to issue summons was filed in the approved form, and use of one form, rather than twenty five separate forms, is not sufficient grounds for refusing a request for summons.
Issue 2: Whether the request for summons should have been served on the Applicant, and other abuses of process.
The Applicant contends in an email to the Tribunal dated 3 November 2022:
This listing notice is invalid because of abuse of process. … The Respondent did not copy in the Applicant as required denying them procedural fairness. Unilateral communications from the Respondent seeking an order without informing the Applicant is manifestly wrong… In addition to the above there is a requirement for the Respondent to provide reasons for requesting these summonses which have not been provided to the Applicant. It is difficult to object when the reasons are not known.
The Tribunal notes that these contentions were not pursued in any detail in the Applicant’s submissions, saving the general reference to lack of compliance with Part 4 of the AAT Regulation. However, for completion they are dealt with here.
The Respondent submits that:
Section 40A of the AAT Act does not require the request for summons be served on another party to the proceeding…Nor does the Tribunal’s request for summons form...After the summons is issued, the other parties to the application are notified by the Tribunal. Any party may then object to the issued summons and apply for it to be varied or revoked.
The Respondent further contends that “an opposing party also has the right to objection to another party’s inspection of documents produced on the return of the summons” with reference to Deputy President Forgie’s decision in Re Pantazopoulos and Military Rehabilitation and Compensation Commission (2011) 121 ALD 148, and that “[i]n the usual case, a subpoena is issued [by the Tribunal] without question” as per Deputy President Forgie in Phillips and Inspector-General in Bankruptcy [2011] AATA 432.
The Respondent, while unclear whether the Applicant wished to continue to press the issue of unilateral communication with the Tribunal, submitted the following:
There has been no unilateral communication with Member Smith or his chambers. The Agency emailed its request for the issue of summons to the Tribunal’s registry. A request for the issue of a summons is in the nature of a written application. There has never been any rule of practice that opposing parties must be “copied” to the filing of court documents, like applications, in registries. Opposing parties are, however, often copied to an email filing a document by way of service. But an opposing party can be served separately. In any event, as outlined above, the Agency was not required to notify or serve the request to issue summons on the Applicant.
In their written submissions, the Respondent also addresses the Applicant’s assertion in their email dated 3 November 2022 that the request to issue summons in this matter has “long past”. While it is unclear from the Applicant’s submissions that they wish to press this argument, the Tribunal will briefly address it. As noted correctly by the Respondent, the Tribunal has made no such direction or order limiting the parties’ right to request the issue of summonses. Further, the request for the approval to issue these summonses was made in October, with a returnable date in late November. The substantive hearing in this matter is listed to occur in early February, and notably had not yet been set down for hearing at the time of the request. The issuing of the summons, at that time, did not deny the Applicant procedural fairness in preparing their case. While there has admittedly been delay in having the issues regarding the summonses being determined, it has not been on the part of the Respondent.
The Applicant has also contended that the granting of the summons will cause the hearing to be extended to four days, which would disadvantage the Applicant. The Tribunal considers that to be a hypothetical consideration at this stage and in any case the extension of a hearing is a common enough occurrence in the Australian legal system and reflects the importance of providing a decision maker with all relevant evidence to ensure the parties to a matter receive justice. In that sense, it is entirely in accordance with due process.
Conclusion
The Tribunal agrees that the issuing of summonses in this matter is consistent with the practice of the Tribunal and with general practice in Australian courts. It is a power Australian judicial bodies exercise ex-parte. The Applicant in this case might well have concerns about the potential abuse of summons, but those concerns can be dealt with as part of objecting to a summons, as has occurred in this case. Further, that the Respondent has requested the issue of summons in accordance with Tribunal requirements, which do not require the request for summons to be served on the Applicant. The Respondent has also denied direct communication with the Member’s chambers to the exclusion of the Applicant.
FINDING
The Tribunal finds that the manner in which the Respondent has requested the issuing of summons has not breached usual practice, ethical standards or the requirements of the AAT Act, and that the Applicant has not been denied procedural fairness as a consequence. The Tribunal finds that this not a reason for the Tribunal to revoke the summons.
Issue 3: Whether the summons should be revoked
The Applicant has contended that the summons in question are designed to ‘fish’ for evidence not privy to the decision maker at the time of the reviewable decision, and as such are of little consequence for the case at hand.
The Applicant states their objection to the summonses to be on the following grounds:
(a)‘Fish’ for evidence not privy to the decision maker at the time of the Internal Review and of little consequence to the case at hand.
(b)Unnecessarily obfuscate the issues to be considered by drowning the Member in documents unrelated to the matter at hand.
(c)Cause the Applicant to be without Pro Bono Counsel by unnecessarily extending the Hearing to four days knowing that Counsel is only available for three days.
The issue of relevance is central to the Tribunal’s consideration of any request for the issue of summons. There is much case law on the issue, and as King CJ in Hunt v Wark (1985) 40 SASR 489 stated , “There must be some reason to suppose that the documents sought will be capable of being used”.
Deputy President Forgie in Pantazopolous expanded on relevance thus:
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.
The centrality of relevance to the Tribunal’s decision to approve the issue of a summons does not mean there must be a high bar to meet. Deputy President Forgie, in General Merchandise & Apparel Group Pty Ltd and Chief Executor of Customs (2009) 114 ALD 289 sets the bar to approving the issue of a summons as “could reasonably be expected to throw light on some of the issues in the principal proceedings...It is not a question of looking at the documents to see if the documents might permit a case to be made.”
Bennet J in Comcare v Maganga (2008) 101 ALD 68, in considering summons requests, also determines relevance by whether there is a real possibility they may assist in resolving the issues:
…the test of relevance for the purpose of inspection is not confined to whether the documents in question will or may establish an inconsistent statement by a witness giving evidence in the proceedings or whether the documents themselves will prove a fact in issue. The court may allow documents to be inspected if they are apparently relevant or are on the subject matter of the litigation … or if they might be used for a legitimate forensic purpose in cross-examination.
The Applicant’s reference to the Respondent’s fishing for evidence is addressed by the Respondent as applied by Owen J in Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250 (‘John Fairfax’) in this way:
A “fishing expedition”, in the sense in which the phrase has been used in the law, means, as I understand it, that a person who has no evidence that fish of a particular kind are in a pool desires to be at liberty to drag it for the purpose of finding out whether there are any there or not.
The Respondent extends the fishing analogy in John Fairfax to this case, in which the Respondent opines:
…the Applicant has indicated that there are fish in the pool. The Agency is dragging the net to catch them. A fishing expedition is only where there is no evidence of any fish. The summonses are not based on mere speculation that the persons named have relevant material. There are reasons to think the documents sought exist and are capable of being used for the purposes of the issues in the proceeding.
The problem with metaphors and analogies, such as those used in John Fairfax and applied by the Respondent in this case, is they inevitably break down and a certain degree of ambiguity attaches to them. Quite what is meant by “the Applicant has indicated that there are fish in the pool” is unclear, but the Tribunal accepts that the Applicant has defended the continuing multiple roles of Ms Krzeva by general reference to the lack of alternatives, which the Respondent now wishes to test.
The Applicant’s submissions did not reference any underlying principles of law which might assist the Tribunal to determine relevance, or how the Tribunal might otherwise determine if the Respondent was “fish[ing]”, but instead addressed the relevance of the request for summons to three subgroups within the 25 parties identified: the support coordinators of Stride Mental Health and My Plan Manager and 21 other organisations whose records “will assist the Tribunal in determining whether all other options to identify suitable support providers have been exhausted”.
Firstly, the Applicant references the summonses to two Support Coordinators, material from who is being summonsed by the Respondent as it will purportedly “shed light on how the Applicant has engaged with a support coordinator to identify any suitable support providers other than Ms Krzeva, which is directly relevant to the issues in dispute”.
The Applicant concludes, somewhat perfunctorily, that the application of “exceptional circumstances” and a “family member” are central issues in this case, and mean that “the expected evidence the Respondent hopes to glean from the Support Coordinators is of little if any relevance to the matter at hand”. It is not open to the Tribunal in this interlocutory decision to decide “the matter at hand” but, rather, to decide whether the evidence being sought is likely to be relevant.
The Tribunal finds the Applicant’s conclusion that their evidence would be “of little if any relevance” is an inadequate rebuttal of the Respondent’s claim that it would assist in “the identification of other suitable support providers”.
In Annexure B to the Respondent’s written submissions, the Respondent provides additional reasons for each summons request. In this annexure, the Respondent considers that the evidence of the two support coordinators will also be relevant to the application of the Operational Guidelines - Sustaining Informal Supports. As the Applicant also contends that informal supports are a central question in this matter, I consider that any light shed on the application of the Operational Guideline will be useful to the Tribunal in its deliberations on the substantive issues.
Bearing in mind the case law, which takes an expansive view of relevance and requires that the records sought need only have apparent relevance (being a lower bar than the requirement for actual relevance at a hearing) and the Respondent’s reason for seeking the material, which also applies to the application of the Operational Guideline, the Tribunal concludes there is an insufficient basis for revoking these two summonses.
Next, with respect to the requested summons to Stride Mental Health (previously ‘Aftercare’), the Applicant cites the Respondent’s explanation that:
…the records of Aftercare will shed light on the Applicant’s previous care arrangements with Aftercare, as well as the concerns regarding Ms Krzeva providing paid support. The Respondent submits that those records are relevant to the issues in this proceeding, particularly whether management of the plan funds by Ms Krzeva as plan nominee under a plan-management arrangement would present an ‘unreasonable risk’ to the Applicant pursuant to s44 of the National Disability Insurance Scheme Act 2013.
The Applicant makes the point that the records of Stride Mental Health were not available to the original decision maker or the internal reviewer at the time their decisions were made, and therefore could have no bearing on their view that continued plan management would represent an unreasonable risk to the Applicant.
The Respondent, in Annexure B, considers the Stride Mental Health summonses are relevant to several issues being considered in this matter, including contentions argued in their submissions on the substantive issues in this matter, and, moreover, since the Tribunal is engaged in merits review, “the records do not have to [have been] available to the [original] decision-makers. The Tribunal can still consider it”.
The Tribunal agrees that the Tribunal’s role as a merits reviewer does not prevent it from considering evidence not available to the original decision maker as it is a hearing de novo, and that this is a widely understood and accepted role in the Australian administrative law appeals system.
With respect to the fourth summons, while accusing the Respondent of “deliberately mislead [ing] the Tribunal”, the Applicant “welcomes the request to summons the Proper Officer, My Plan Manager” and so the Tribunal accepts there is effectively no dispute between the parties about this summons.
The remaining twenty-one summons requests are to organisations which have allegedly been contacted by the Applicant’s representative (and declined to provide support) which, as quoted from the Respondent’s request for summons, “is relevant to the issue of whether all other options to identify suitable support providers have been exhausted.”
Suffice it to say, the Respondent’s quest for further information is related to the many roles played by Ms Krzeva, the Applicant’s representative, plan manager, power of attorney, paid care-giver and long time friend from childhood, and whether this further information could assist the Tribunal in deciding the decision under review.
The Applicant contends that the Respondent needs to have provided a legislative basis for being able to determine who provides support to a NDIS Participant and since that has not been done that “it would appear a stretch at best that the requested material could in any way assist the Tribunal in its deliberations? (sic)”.
Consistent with the case law, the Respondent has argued that the threshold for determining relevance is necessarily low, which the Tribunal accepts with respect to the other requests for summons in this matter. The Respondent also considers these organisations’ evidence will assist in the issue of the Operational Guideline for informal support.
In the case of these organisations however, there is, as the Applicant argues and the Tribunal agrees, the need to understand how each organisation manages service requests:
The implication being that an absence of records should not be construed as an absence of contact and so knowledge of…management policies …would negate a need to call them all for cross examination at a substantive hearing.
The Tribunal considers there is a real risk that, in the absence of an understanding of the decision making of each of these 21 organisations, there would be insufficient evidence to enable it to decide “whether all options to identify suitable support providers have been exhausted”.
The Tribunal agrees that the summons would be more useful if, as the Applicant proposes, it requested information from each of the identified 21 organisations about how it “manages service requests and at what point they might record when they have been unable to provide a service, or the service has been declined”. However, the Tribunal notes that it is open to the Applicant to make their own request for summons to be issued on this point, should they believe the Respondent’s request too narrow to produce all relevant material.
The Tribunal notes however that the Respondent considers the registration of these service providers with the NDIS Quality and Safeguards Commission to be irrelevant to the request for summons. The Applicant’s argument is that non-registered providers could not have provided the supports and can be ignored, but that does not mean Ms Krzeva did not ask.
Conclusions
The Tribunal finds that when considering all the evidence, the summonses sought by the Respondent are sufficiently relevant to the substantive issues of the decision under review.
Other Grounds of Objection
The Applicant also claims the issuing of the summonses would effectively overwhelm the proceedings by “unnecessarily obfuscating the issues to be considered …and drowning the Member in documents unrelated to the matter at hand”. The Respondent submitted that this argument is unable to made out, as there is no indication of the amount of material that may be produced as a result of the summonses.
The impact of documentation on the capacity of a member to make a decision is a reflection on the capacity of the member and in any case, the evidence relied upon by the member is for the member to decide. The assertion that the evidence adduced from the summonses is “unrelated to the matter at hand” goes to the question of relevance, which the Tribunal has addressed earlier in this decision.
The Applicant also bases their objection to summons on the likelihood that the additional material would cause the hearing to be extended from three days (for which pro bono counsel is available) to four, causing the Applicant to be without pro bono counsel. The Respondent is accused of “knowing that Counsel is only available for three days”. The Tribunal considers this to be a hypothetical consideration which fails to recognise the many reasons for the length of a hearing and the importance of ensuring that all evidence relevant to the matter is heard.
Conclusion
The Tribunal finds that the Applicant’s submissions on the summons’ “obfuscating” and “drowning the member”, or the Applicant’s assertion that these would unnecessarily extend the hearing, are not sufficiently made out to support the revoking of summons.
DECISION
The Tribunal refuses the Applicant’s application to revoke the 25 summonses in issue.
In light of the considerable delays which have attached to this requested issuance of summons, the Tribunal makes ancillary orders under s 40A of the AAT Act to extend the time for each third party’s time to comply with the summonses by an additional four weeks from the time of this determination.
The Tribunal notes the Respondent’s request to abridge the Applicant’s time to inspect the produced material to ensure the matter proceed in a timely fashion; however in light of the amount of summonses being issued and the potentially large amount of documents that might be produced, the Tribunal declines to make any such order.
I certify that the preceding 62 (sixty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member P Goward
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Associate
Dated: 16 December 2022
Date(s) of hearing: On the papers Solicitors for the Applicant: Ms K. Kline Counsel for the Respondent: Mr J. Sproule Solicitors for the Respondent: Sparke Helmore Lawyers
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