People with Disability Australia Incorporated v Minister for Disability Services

[2005] NSWADT 101

CITATION:	People With Disability Australia Incorporated v Minister for Disability Services [2005] NSWADT 101
DIVISION:	Community Services Division
PARTIES:	APPLICANT People With Disability Australia Incorporated RESPONDENT Minister for Disability Services
FILE NUMBER:	044021
HEARING DATES:	29/04/2005
SUBMISSIONS CLOSED:	04/29/2005
DATE OF DECISION:	05/10/2005
BEFORE:	Kelly T (Deputy President)
APPLICATION:	Summons - set aside
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Disability Services Act 1993
CASES CITED:	Hunt v Wark (1986) 40 SASR 489 Lucas Industries Ltd v Hewitt & Ors (1978) 18 ALR 555 R v Barton & Ors (1981) 2NSWLR 414
REPRESENTATION:	APPLICANT C Ronalds, SC RESPONDENT P Singelton, barrister
ORDERS:	Application is adjourned pending discussion between the parties and the recipient on issues of production access and privacy in respect of documents to be produced by summons. Application may be relisted by either party or the recipient of the summons

Section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision.
Section 126 provides
(1A) This section applies only to the following:

(a) proceedings in the Community Services Division of the Tribunal,

(b) appeals to an Appeal Panel from a decision made by the Tribunal in the Community Services Division,

(b1) proceedings in relation to an external appeal made under section 67A of the Guardianship Act 1987 or section 21A of the Protected Estates Act 1983,

(b2) proceedings in relation to a reviewable decision made under the Guardianship Act 1987 or the Protected Estates Act 1983

(c) such other proceedings (or class or classes of proceedings) as may be prescribed by the regulations for the purposes of this section.


(1) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person:

(a) who appears as a witness before the Tribunal in any proceedings, or

(b) to whom any proceedings before the Tribunal relate, or

(c) who is mentioned or otherwise involved in any proceedings before the Tribunal,


whether before or after the proceedings are disposed of.
Maximum penalty: 10 penalty units or imprisonment for 12 months, or both.
(2) This section does not prohibit the publication or broadcasting of an official report of the proceedings that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section.
(3) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.


REASONS FOR DECISION

1 This is an application to set aside a summons to produce various documents issued by People With Disabilities Australia Incorporated (“the Applicant”) against Disability Services Australia Ltd (“DSA”) to produce various documents. The Applicant is a community organisation which represents the rights of persons with disabilities. It has made challenges to a decision of the Minister or Disability Services (“the Respondent”) to approve financial assistance to DSA to administer Fairholme, a residence for persons with disabilities.

2 The primary application brought by the Applicant is made pursuant to s20(a) of the Disability Services Act 1993 (the Act) which states:

For the purposes of section 28 (1) (a) of the Community Services (Complaints, Reviews and Monitoring) Act 1993 , any of the following decisions is reviewable by the Administrative Decisions Tribunal:
(a) a decision approving the provision of financial assistance if the approval to the provision of the assistance should not have been given under section 10 (2) because the provision of the assistance will not conform with the objects of this Act and the principles and applications of principles set out in Schedule 1

3 S 20 requires the Tribunal to consider the approval given pursuant to s 10(2) of the Act which states:

(2) Approval for the provision of financial assistance may not be given unless the Minister is satisfied on reasonable grounds that providing the assistance would conform with the objects of this Act and the principles and applications of principles set out in Schedule 1

4 The summons requires the production of the following documents, which have not yet been produced:

1. Business/Action Plan for 2004.

2. Draft or Proposed or Final Business/Action Plan for 2005.

3. Transition Plan developed in conjunction with residents of Fairholme and the Department of Ageing, Disability and Home Care.

4. Policies and Procedures in relation to the use of the facilities by residents and users of the Day Program, including but not limited to complaints and grievance policies and procedures, Occupational Health and Safety policies and procedures, policies and procedures relating to protection of human rights and freedom from abuse, communication policies and procedures.

5. Service Delivery Plan and results of Service Delivery Review.

6. Documents relating to the Quality Accreditation program implemented at Fairholme including any measures or procedures used to monitor compliance with the Disability Services Act and timetabling and results of audits undertaken.

7. Profiles of all residents and users of day program including medical records from 1 January 2002 to date.

8. Individual Service Plan and Log for each resident of and user of the Day Program.

9. Details of all staff of Fairholme including qualifications and experience and details of ongoing training program.

5 DSA objects to the production on the following bases:

- The Applicant’s reliance on s 6 of the Act in challenging the Minister’s decision is not a reviewable decision

- The scope of the summons is so wide as to be oppressive and a fishing expedition

- The volume of the documents comprise many lever arch folders. DSA is a not for profit organisation which employs no in house solicitor to attend to the collection assembly de-identificatuion of persons named therein and production of the documents

- The date some of the documents is not specified and includes times before and after the decision under review

6 Chronology:

- 7 October 2003 the Minister approved financial assistance to DSA pursuant to s10 of the Act.

- 1 December 2003 DSA commenced administration of Fairholme

- 20 January 2004 Applicant requested the Minister to provide reasons for her decision

- 25 April 2004 Minister provided reasons to the Applicant

- 26 March 2004 Applicant applied to the Minister for an internal review of the decision

- 19 August 2004 he Minister provided the Applicant with the details of the internal review which affirmed the Minister’s decision

- 19 September 2004 Applicant applied to the Tribunal challenging the Minister’s decision

7 The Applicant submitted that the summons is not oppressive or a fishing expedition and that it was reasonable for the documents to be produced for use at the hearing and at an agreed mediation to be held pursuant to Part 4 Chapter 6 of the ADT Act, as they relate to issues that are for determination at the hearing and for consideration at the mediation. It had sought the documents by way of a Freedom of Information application to the Minister and the Department and was informed that they were not in the possession of the Minister or the Department but are likely to be with DSA. The Applicant further stated that it would be flexible in regard to production of the documents and could inspect the documents if necessary at the premises of DSA and would make arrangements for the copying of any documents of interest, and would negotiate any necessary de-identification of persons named therein.

8 If the scope of the summons is so wide as to be a fishing expedition for the documents specified therein to not appear to be relevant to the issues for determination the summons should be set aside. In Hunt v Wark 1986 40 SASR 489 at 493 King CJ said:

A summons to witness to produce documents cannot be used for the purpose of mere fishing. There must be some reason to suppose that the documents sought will be capable of being used as evidence. On the material before the Judge there was no reason to suppose that the documents sought, even if they exist, would have any bearing on any issue capable of being raised by the evidence. To be the subject of a summons to witness the documents must be required for the purposes of evidence upon behalf of either party. It is not necessary to construe those words with undue strictness so as to refer to only documents which are admissible evidence. The words are wide enough to include documents reasonably needed for the cross-examination of a witness, such as statements by the witness with respect to matters at issue in the case ( Maddison v Goldrick [1976] 1 NSWLR 651 ) whether or not they would ultimately be used in evidence to contradict the witness. I should think that they are also wide enough to include documents which may be used to refresh the memory of an intended witness and perhaps in other ways directly related to the presentation of the evidence in the case. The documents must be required, however, in some sense for the purposes of evidence. The subpoena process may not be used as a means of obtaining discovery of documents from the Commissioner of Police or as a means of obtaining information in the hope that it may lead to the ascertainment of witnesses or evidentiary documents: The Queen v White (1976) 13 SASR 276 , especially at pp 281-282.

9 The matter for the Tribunal to ultimately determine pursuant to ss20(a) and 10(a) of the Act is whether or not the Minister should have been satisfied that provision of financial assistance would conform with the objects of s3 of the Act, and the principles and the application of the principles in Schedule 1 of the Act. This is an objective test whereby the Tribunal must consider whether there are reasonable grounds for being satisfied on the material that was or could have or should have been before the Minister, as at the time the Tribunal makes it’s decision to affirm vary or set aside the Minister’s decision, that the provision of the financial assistance conformed with the objects, principles and application of the principles in the Act.

10 The objects and principles are lists of standards which must be met. Although I have not seen the material in the Third Party’s possession or power that can be produced in response to the summons, nor have I any indication of the existence of any such documents, the classes of material enumerated in the summons, on their face, all appear to me to be relevant to considering whether the financial assistance will conform with the objects and principles and application of the principles. As the parties did not seek to put any arguments in respect of the specific relevance of any of the specific items listed in the summons, I am only considering them as described in the summons.

11 The lack of any restrictions on the date that the documents were created in 6 of the categories specified in the summons does concern me. When I raised this concern, counsel for the applicant consequently agreed that no documents dated or created before 1 January 2002, were sought. This appears to cover a likely period relevant to the matter to be determined.

12 A summons should not require a witness to have to search for or produce an excessively large number of documents. In Lucas Industries Ltd v Hewitt & Ors (1978) 18 ALR 555 at 570 the issue was expressed by Smithers J as one requiring an assessment of the reasonableness of the burden on the recipient in the context of the style and nature of the recipient’s business. His Honour said:

Assessment of the reasonableness of burdens involved in complying with a subpoena must take account, inter alia, of the desirability that justice be administered effectively. The capacity of a party to collect and provide the documents referred to is a relevant circumstance. Large business entities may be thought to be highly organised and well staffed. What may be burdensome to lesser entities may be of small significance to a large one.

13 In R v Barton & Ors 1981 2NSWLR 414 Cantor J considered the relevance of the documents sought to the litigation as well as the relationship between the recipient and the litigation. His Honour said:

It seems to me on this first step in relation to the subpoenaing of documents from a stranger the Court will consider possible issues. This does not include fanciful issues. The Court should take a realistic attitude. Similarly in considering the type of documents and how they may bear upon an issue in the litigation the Court will act realistically and not require the production of documents which only would have a bearing upon an issue on an unreal, fanciful or speculative basis.

14 In evidence given from the bar table, counsel for the DSA stated that documents capable of fitting the description of those sought are estimated to comprise many lever arch folders. There was no more precise indication of how many such folders, or how many, if any, of the documents were already in bundles either within such folders or otherwise. He also stated that his client was a small voluntary organisation which did not employ solicitor who could assemble and otherwise deal with the documents.

15 However evidence was given by the Respondent that DSA is being paid about $I million per year being the amount of the challenged funding. Thus it is a small business not devoid of financial resources. Furthermore as it is a small organisation it should not have a large proportion of it’s total documentation that related to many and various other unrelated projects and enterprises.

16 The applicant has stated that it does not necessarily require that the documents be produced to the Tribunal and that it is prepared to attend the Third Party’s premises to inspect them and if necessary make arrangements for their copying. I cannot understand any need for a solicitor to collect and assemble the documents. A reasonably literate clerical officer should be easily adequate for the task.

17 DSA is not a stranger to this litigation. As it is the recipient of the challenged grant for financial assistance, its interests are very likely to be affected by the litigation. The Tribunal has on two occasions invited DSA to apply to be joined as a party to the proceedings but this invitation has been declined.

18 DSA has stated that it concerned about the confidentiality of persons named in the documents. If there are persons in this category, for example in profiles and medical records of the residents which the applicant stated DSA may have inherited from the former administrator of the home, the applicant has stated that it prepared to agree to any reasonable procedure for anonymising these names

19 DSA challenged the summons on the basis that the Applicant, in earlier correspondence with DSA regarding the summons, stated that its primary claim was a based on s6 of the Act. It is not necessary to address this argument, as counsel for the applicant made it very clear that the application was based on ss20 and 10, not on s6 of the Act.

20 I am satisfied that the documents set out in the summons are relevant to the issues for determination, that there are reasonable forensic purposes for seeking them, that it is not unreasonable for the applicant to seek or for DSA to provide them, subject to the qualification that no documents created before 1 January 200 be produced. Accordingly the application to set aside the summons will be dismissed.

21 I am adjourning the application to allow the parties to negotiate the issues of production access and privacy. The application may be relisted by the Applicant, the Respondent or DSA if formal orders are needed.

ORDER:

Application is adjourned pending discussion between the parties and the recipient on issues of production access and privacy in respect of documents to be produced by summons. Application may be relisted by either party or the recipient of the summons