Re Panagiotou and TNT Australia Pty Ltd
[2011] AATA 565
•17 August 2011
ADMINISTRATIVE APPEALS TRIBUNAL )
) 2010/3156
GENERAL ADMINISTRATIVE DIVISION )Re:PAUL PANAGIOTOU
Applicant
And:TNT AUSTRALIA PTY LTD
Respondent
CORRIGENDUM TO DECISION [2011] AATA 565
The Tribunal amends its decision of 17 August 2011 so that [44] on page 18 becomes [45] with the paragraphs thereafter numbered sequentially.
S A Forgie
Deputy President
CATCHWORDS – PRACTICE AND PROCEDURE – objection by applicant to the issue of summonses and other party’s inspection of any documents produced under those summonses – relevance of documents sought to issues raised by decision under review – objections disallowed.
PRACTICE AND PROCEDURE – form for summons – obligations of Tribunal regarding compliance – appropriateness of nominating party requesting issue of summons as point of contact for summonsed person.
Re Phillips and Inspector-General in Bankruptcy [2011] AATA 432
Trade Practices Commission v Arnotts Ltd and Others (No 2) (1989) 88 ALR 90
Waind and Hill v National Employers’ Mutual General Association Ltd [1978] NSWLR 372
Administrative Appeals Tribunal Act 1975 ss 2A, 3(1), 32, 33(1AA), 40(1A), 40(1B), 40(1C), 61
Federal Court of Australia Act 1976 s 31(1)
Safety, Rehabilitation and Compensation Act 1988 ss 14, 16, 19
Administrative Appeals Tribunal Regulations 1976 r 15, Sch 1
Administrative Appeals Tribunal Amendment Regulations 1973 r 6
Federal Court Rules 2011 Rules 24.13(1)(a), 24.23
DECISION AND REASONS FOR DECISION [2011] AATA 565
ADMINISTRATIVE APPEALS TRIBUNAL )
) 2010/3156
GENERAL ADMINISTRATIVE DIVISION )
Re:PAUL PANAGIOTOU
Applicant
And:TNT AUSTRALIA PTY LTD
Respondent
DECISION
Tribunal: Deputy President S A Forgie
Place: Melbourne
Date: 17 August 2011
Decision:The Tribunal decides to disallow:
(1)the applicant’s objection to the issue of six summonses issued on 21 July 2011 and returnable on
10 August 2011 at 9.30am;
(2)the applicant’s objection to the respondent’s inspecting the documents produced on those summonses;
and directs that:
(3)both parties may inspect the documents that have been produced to the Tribunal as at 16 August 2011 in response to summonses issued on 21 July 2011; and
(4)the District Registrar write to the two persons who have not responded to the summonses served upon them, setting out their obligation either to produce documents as required by the summons or, if they have none in their possession, custody or control, to notify the Tribunal to that effect.
S A Forgie
Deputy President
REASONS FOR DECISION
The summonses issued at the request of the respondent in this matter, TNT Australia Pty Ltd (TNT), action taken by the applicant, Mr Paul Panagiotou in response to the issue of the summonses, and the Tribunal’s Registry’s response when advised of a letter written by Mr Panagiotou to TNT’s solicitors, Clarke Legal, raise several issues regarding the summons procedure adopted in the Tribunal. Although not addressed to the Tribunal, I have treated Mr Panagiotou’s letter as an objection to six summonses that the Tribunal had issued at the request of Clark Legal as well as an objection to TNT’s inspecting documents produced in response to those summonses. They were issued to five medical practitioners and the Practice Manager of a medical practice.
I have decided that there is no basis for the objection to the issue of the summonses and that the summonses should be complied with. As to the objection to the inspection order, I have disallowed Mr Panagiotou’s objection. Both parties may now inspect the documents that have been produced to date. Where summonses have not yet been complied with, I have asked the District Registrar to write to the medical practitioners who have been summonsed but who have yet to comply with the summons to remind them of their obligations. I will consider the terms of any inspection order that should be made when the documents are produced. In coming to these decisions, I have not asked the parties for their submissions. Mr Panagiotou’s position is quite clear from his letter as is that of TNT from the letter written by Clark Legal to each of the summonsed parties.
I have also concluded that aspects of the summons procedure that I have considered in this matter are confusing for those who are not familiar with that procedure. That confusion is not lessened by the Tribunal’s letter to Mr Panagiotou, which is no different from that written to other applicants or their solicitors.[1] I have also concluded that Clark Legal are placed in a difficult position by the requirement that the summonses show the details of the person at whose request the summons has been issued as the contact point for further information. They are acting as TNT’s solicitors and yet would seem to be required by the Administrative Appeals Tribunal Regulations 1976 (Regulations)[2] to be the point of contact regarding a formal document which is issued by a member or officer of the Tribunal and which imposes obligations on the person summonsed to the Tribunal and not to either TNT or Mr Panagiotou.
BACKGROUND
[1] It is in the standard form provided in the Tribunal’s computerised case management system, TRACS.
[2] Regulations, r 15 and Schedule 1, Form 9
Mr Panagiotou’s injury
Mr Paul Panagiotou works as a Dockhand for TNT. On 5 August 2009, he claimed compensation for an injury to his right elbow that had occurred when he was loading boxes from a conveyor belt and on to a truck and hit his arm on a metal rail running along the side of the truck. TNT accepted liability to pay compensation under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) in respect of an injury it described as “right medial epicondylitis”. On 12 August 2009, TNT accepted liability to pay him compensation under s 19 of the SRC Act in respect of his incapacity for work and under s 16 in respect of medical expenses Mr Panagiotou has incurred in respect of his injury.
Mr Panagiotou’s application for compensation for permanent impairment and TNT’s decisions
Mr Panagiotou then applied for compensation for permanent impairment in respect of “right golfer’s elbow, anxiety”. On 17 June 2010, a delegate of TNT decided that Mr Panagiotou was no longer suffering from the effects of the right medial epicondylitis for which liability had been accepted. He had stopped doing so on 18 May 2010 and so had no current entitlement to compensation. Another delegate came to the same conclusion on 9 July 2010 and, in a reviewable decision of that date, affirmed the decision dated 17 June 2010.
Application to the Tribunal for review of TNT’s reviewable decision
On 29 July 2010, Mr Panagiotou applied to the Tribunal for review of that decision. The matter proceeded in the normal way for an application which seeks review of a reviewable decision under the SRC Act and which was not yet ready for reference to an alternative dispute resolution process under Division 3 of Part IV of the Administrative Appeals Tribunal Act 1975 (AAT Act). The normal way involves the Tribunal’s conference processes, its directions to the parties and, at the request of the parties and for the purposes of the hearing of a proceeding before the Tribunal, summonses that it issues under s 40(1A) of the AAT Act to persons who are not parties to the application to give evidence or produce books, documents or things in their possession.
At TNT’s request dated 19 July 2011, the Tribunal issued a further six summonses on 21 July 2011. Five were addressed either to medical practitioners or a Practice Manager who had not previously been summonsed. The sixth was addressed to Mr Panagiotou’s general practitioner for medical records relating to his patient since he had received the previous summons. Each summons was issued in a form consistent with that prescribed under the Regulations. Each required the person summonsed to attend before the Tribunal at 9.30am on 10 August 2011 to produce certain documents. If they preferred not to attend at that time, they need not do so provided they produced the documents to a member of staff at the Tribunal no later than the day before the hearing. Each summons described the documents that had to be produced in the following way:
“All original medical and like records, reports, letters of referral, clinical notes, treatment cards, x-ray reports, all other investigations and any other documentation relating to the Applicant, Paul Panagiotou (Date of Birth …).”
Again in accordance with the Regulations, each summons concluded with the following passage:
“This summons has been issued at the request of the respondent.
For further information please contact:
Firm/Agency:
CLARKE LEGAL Level 14, 31 Queen Street, Melbourne 3000
Person dealing:
Damian Clarke Ref: …
(contact James O’Loughlin)
Telephone:
(03) 9613 0900
The Tribunal returned the issued summonses to Clark Legal attaching a document headed “Notice to the Party requesting the summons”. It advises that party that it must serve the summons personally and that it should do so as soon as practicable as well as pay the summonsed person’s reasonable expenses of compliance. It concludes with the statement:
“You and not the Tribunal, are obliged to pursue production of the summons [sic] documents, [sic] however the Tribunal if requested to do so will advise you as to what documents have been produced.”
The Tribunal attaches a notice to each of the summonses it issues. This is addressed to the person summonsed to produce the documents. It has seven headings: Complying with the summons, Form of documents, Expenses associated with the summons, Objecting to the summons, Access to documents, Return of summons documents and Failure to comply with the summons. Except for one heading, the document speaks of the summonsed person’s duty to the Tribunal, the consequences of the person’s failure to comply and the Tribunal’s processes and the way in which it will deal with the documents that are produced. The exception lies under the heading of “Expenses associated with the summons” and reads:
“You are entitled to be paid reasonable expenses for complying with the summons. This generally includes the cost of copying and delivering documents to the Tribunal.
The party who requested the summons, not the Tribunal, is responsible for these expenses and you should discuss payment with them. Their contact details can be found at the end of the summons form.
You must comply with this summons by the specified date, even if you think that the amount of expenses that you have been paid is insufficient, unless the Tribunal orders otherwise.”
The Registry writes to Mr Panagiotou telling him of the summonses
In accordance with its current practice, the Tribunal’s Registry wrote to Mr Panagiotou at his solicitors’ address advising him that, at TNT’s request, the summonses had been issued and the names of the persons to whom they had been issued. It also advised that the summonses required the documents to be produced to the Tribunal on or before the return date of the summons, which was 10 August 2011.
The Registry’s letter, dated 21 July 2011, went on to tell Mr Panagiotou:
“Inspection of documents
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.
Objections
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.
If you have any queries in relation to this do not hesitate to telephone the Tribunal.”
Mr Panagiotou objects
On 1 August 2011, Mr Panagiotou wrote to Clark Legal making the following points:
(1)TNT and its solicitors do not have permission to obtain entire medical files from any medical practitioners he has seen regarding his work related injury including his psychologist, Dr Vince Fisicaro.
(2)TNT may obtain reports from these medical practitioners but not their entire file relating to him.
(3)Neither TNT, its solicitors or the Tribunal has his permission to obtain the files and so cannot obtain them legally.
(4)TNT would not want him to find out medical information about another of its employees.
(5)His personal problems have nothing to do with TNT and its solicitors.
TNT’s solicitors write to some of the medical practitioners
Clark Legal sent a copy of Mr Panagiotou’s letter to the Tribunal on 2 August 2011 together with other correspondence. It was referred to me by the Tribunal’s Registry on 10 August 2011.
It appears that Mr Panagiotou had also sent a copy of his letter or a letter to similar effect to all or some of the medical practitioners to whom the summonses had been issued. I have drawn that conclusion from copies of six letters sent by Clark Legal to each of the medical practitioners and the one Practice Manager of a medical practice to whom summonses were issued on 21 July 2011. Those letters read:
“We refer to the Summons to Produce Documents that was served upon you on 26 July 2011.
We note that you have received correspondence from the Applicant instructing you not to comply with the summons.
We advise you that the summons has been issued pursuant to an Order of the Administrative Appeals Tribunal.
Therefore compliance with the summons is required and the Applicant’s records (or a copy thereof) must be forwarded to the Tribunal prior to the return date of 10 August 2011. We refer you to the Summons you have already received and the attached Notices to Witness that set out those requirements.
The issue of access to the records and the Applicant’s concerns will be dealt with by the Tribunal.”[3]
SUMMONSES
[3] I understand that Mr Panagiotou’s solicitors have also telephoned four of the summonsed persons to give them oral advice to the same effect. To date, they have been unsuccessful in relation to two of them. They, too, have acted very responsibly in the circumstances.
Legislative framework
The power to issue a summons is found in 40(1A) of the AAT Act. It provides that:
“Subject to subsection (1B), for the purposes of the hearing of a proceeding before the Tribunal, the member presiding at the hearing, the Registrar, a District Registrar or a Deputy Registrar may summon a person to appear before the Tribunal at that hearing:
(a)to give evidence; or
(b)to give evidence and produce 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; or
(c)to produce 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.”
The power to require appearance or production at a hearing extends to the power to make a similar requirement at a directions hearing.[4]
[4] AAT Act, s 40(1B)
Most commonly, summonses are issued by a District or Deputy Registrar rather than a member. They may not refuse a request to issue a summons unless their refusal is authorised by a presidential member (including a Deputy President[5]), a senior member or an authorised member.[6] This means that, in some cases, the Registrar, a District Registrar or a Deputy Registrar will refer a request to issue summonses to one of the members. That is usually done when the relevance of the material sought in the summonses to the issues raised by the application for review is not readily apparent from the description of the material appearing on the summons or from the identity of, or the description of the office held by, the person to whom the summons is addressed.
[5] AAT Act, s 3(1)
[6] AAT Act, s 40(1C)
There are three types of summonses and a form for each is prescribed in Schedule 1 to the Regulations. They are a summons to give evidence (Form 7), a summons to give evidence and produce documents (Form 8) and a summons to produce documents (Form 9). Each concludes with the statement that must be completed:
“This summons has been issued at the request of the applicant/respondent [delete whichever is not applicable]:
For further information please contact:
Firm/Agency:
Person Dealing:
Telephone:”
The stages
A summons issued by the Tribunal has many similarities to a subpoena issued by a court. Both compel either a person to give evidence or produce documents or things for the purpose of, in the case of a subpoena, a court and, in the case of a summons issued under the AAT Act, the Tribunal to carry out its functions. Failure to comply with either a subpoena or a summons is an offence.[7] Other parties to the action or matter in which a party requests that a subpoena or summons be issued may object to their being issued. Those to whom they are addressed may object to complying with them.
[7] Under Order 24 Rule 24.23(1) of the Federal Court Rules, for example, “Failure to comply with a subpoena without lawful excuse is a contempt of court and the addressee may be dealt with accordingly.” If it chooses, the Tribunal may refer evidence of a breach to the Director of Public Prosecutions to consider whether to lay charges. In this, it differs from the Federal Court which, as a court and not an administrative tribunal, is able to punish contempt of its power and authority itself: Federal Court of Australia Act 1976, s 31(1).
Whether a subpoena or a summons, it is usually issued without question in the first instance. That assumes that there is no reason from the description of the documents or the identity of the person to be summonsed to question the relevance of the documents to the issues to be decided in the particular court or tribunal proceeding. Three steps follow the issue of a summons. The first two precede the substantive hearing of the issue by the court or Tribunal and the third occurs during the course of, and as part of, that hearing. They have been identified by Moffit P in Waind and Hill v National Employers’ Mutual General Association Ltd:
“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.”[8]
THE OBJECTIONS AND PROCEDURAL ISSUES
[8] [1978] NSWLR 372 at 381
The Registry’s correspondence to Mr Panagiotou – basis of objection to issue of summonses
Neither a summons nor the Registry’s letter explains to an applicant that the books, documents or other things sought by the summons must be for the purposes of the hearing of a proceeding in the Tribunal. In a case such as this where Mr Panagiotou has applied for review of a decision relating to his entitlement to worker’s compensation, this means that they must have some apparent relevance to the review of the decision.
As the issues would appear to be from the face of the material on the file at the moment, they must have some apparent relevance to whether Mr Panagiotou is entitled to compensation for an injury described as right medial epicondylitis and for anxiety. I have included anxiety for the reviewable decision must be read both as a decision to the effect that Mr Panagiotou is no longer entitled to compensation under ss 16 and 19 of the SRC Act and as a decision rejecting liability for permanent impairment. His application for compensation for permanent impairment referred both to his physical injury of right medial epicondylitis and to anxiety which would seem to be claimed as a consequence of his physical injury.
The letter’s omission to tell Mr Panagiotou about relevance means that he is given no hint of the basis on which he can object to the issue of the summons. All that the letter tells him is that he can object and, if he wants to, should contact the Tribunal within seven days of the date of the letter. In light of this, it is somewhat understandable that, when Mr Panagiotou decides to object, he thinks that he can do so on any basis that he chooses. His chosen basis is that his problems are personal to him.
The fact that any applicant must face when applying for review of a decision in the Tribunal is that things that are personal to him or to her must be revealed if they are relevant to the issues raised by his or her application. This case provides a very clear example. Mr Panagiotou may well regard matters relating to his health as personal to him as do most, if not all, people. That does not make them irrelevant to the issues that must be decided on his application. Mr Panagiotou cannot control what the Tribunal regards as relevant and nor can TNT. Only the Tribunal can do that.
What the Tribunal regards as relevant when it is actually reviewing a decision may be different from what it regards as relevant when it issues a summons. When reviewing a decision, it must have regard only to evidence or material that it actually regards as relevant. When it is issuing a summons for documents or material, it requires only that they appear to have relevance to the issues to be decided. That is, it may issue a summons requiring their production if they can reasonably be expected to throw some light on the issues that will have to be decided in reviewing the decision.[9]
[9] See Trade Practices Commission v Arnotts Ltd and Others (No 2) (1989) 88 ALR 90 and other authorities set out in my reasons for decision in Re Phillips and Inspector-General in Bankruptcy [2011] AATA 432 at [33]-[37]
Each of the six summonses to which Mr Panagiotou has objected required the person to whom it was addressed to produce the same type of documents. I have set out their description at [7] above. Mr Panagiotou has not suggested that he has not been treated by any of the medical practitioners or at the medical practice to which the summonses were directed. On their face, the documents could reasonably be expected to throw some light on the issues that will have to be decided in reviewing the decision. Therefore, I have decided that Mr Panagiotou’s objection to the issue of the summonses is without foundation. The persons to whom the six summonses are directed must comply with them. Four had done so by 11 August 2011, one did so on that day and the remaining two have yet to comply.
The Registry’s correspondence to Mr Panagiotou – basis of objection to standard inspection order
The Registry’s letter to Mr Panagiotou explained that a “standard inspection order … gives the applicant immediate access to any documents produced and thereafter gives the respondent access 7 days later.”[10] It then immediately followed with a statement headed with the word “Objections” advising him to contact the Tribunal within seven days of the date of the letter “… if you object to the issue of the summons or a standard inspection order …”.
[10] When both parties are represented by solicitors and particularly by solicitors well versed in the relevant jurisdiction, it is open to question why an order in this form should be issued. Solicitors falling within that category are very experienced in examining summonsed documents on the return date, identifying if there are documents to which objection should be taken and negotiating with the solicitors for the other party on that issue. If they cannot agree, the Tribunal is available to hear and resolve the matter.
This portion of the Registry’s letter confuses the objection that may be taken by a party to the issue of the summons at all with the second step that must be taken in relation to a summons to whose issue there has been no objection or any objections have been dismissed. The two are conceptually separate. The first relates to the issue of the summons at all or, if it has been issued, to its being set aside. The second relates to the potential use that may be made of the documents produced under the summons. That follows long after the issue of the summons and the resolution of any objections to their issue. It follows the summonsed person’s having complied with the summons and produced the documents to the Tribunal.
They are separate in practice. It may be possible for a party to the proceeding to contact the Registry and to object to the issue of a summons within seven days of the date of its letter to him. There would, however, be little point in doing so for the summons has already been issued. The Registry’s letter is only written to the other party once it has been issued. Any objection to the issue of the summons that is made would have to be treated as an application to have the summons set aside. It is to an application of that sort to which the Registry’s letter should refer and not to an objection to the issue of the summons.
It is not possible for a party to object to an inspection order, standard or otherwise, within that time frame. Although a summons should not be issued for documents and other material unless those documents appear from their description to have apparent, or adjectival, relevance to the issues to be resolved, the second step can only occur when the documents are actually produced under the summons. The second step requires a member of the Tribunal to decide whether the parties should be permitted to inspect those documents. That decision can only be made after the member has inspected the documents. In most cases, that is well after seven days have passed after the issue of the summons. In a case such as this where the summonsed documents consist entirely of an applicant’s medical records, it is usual to let the applicant inspect the documents first. It will only be on inspection that an applicant will be able to decide whether or not he or she objects to the disclosure of the documents to the other party in the case.
The Registry’s letter has not given Mr Panagiotou any explanation of the process. It has not given him any indication that it is important that he should come to the Registry to inspect the documents. It has not told him why he will be given the first opportunity to inspect the documents. It has not told him that he should use that opportunity to inspect the documents to decide whether he has some reasoned basis on which to object to TNT’s inspecting some or all of the documents.
Mr Panagiotou’s objection
Although Mr Panagiotou’s correspondence was not addressed to the Tribunal but to Clark Legal, it should be read as an objection to both the issue of the summonses and any standard inspection order that might be made when the summonses were complied with and the documents produced. There are two reasons for my reaching this conclusion.
The first is the substance of the five points that Mr Panagiotou made in his letter.[11] When made in the context of summonses issued to medical practitioners in relation to an application for the review of a decision refusing him compensation, they clearly speak of objection and of objection to both the issue of the summonses and to the inspection of any documents produced as a consequence.
[11] See [13] above.
The second is that Mr Panagiotou clearly wrote to Clark Legal thinking that it had, in some way, authorised the issue of the summonses. His thinking is quite understandable given that the name of Clark Legal appears on the summonses as the contact point should those being summonsed seek further information rather than the Tribunal’s Registry. It seems to me that neither TNT’s nor Clark Legal’s names should appear as the contact point but only do so because Form 9, prescribed by the Regulations, requires that it be so. I will return to the inappropriateness of this requirement shortly.
Any correspondence from Mr Panagiotou to summonsed medical practitioners
If it is the case that Mr Panagiotou has written to the medical practitioners to whom the summonses were issued and told them not to comply, he has acted improperly. What is clear to me is that Mr Panagiotou wrote to Clarke Legal. That was not a proper course for him to adopt. Putting aside all of the difficulties that I have with the Registry’s letter, it did tell him to come to the Tribunal if he objected to the summonses. It did not tell him to approach either the medical practitioners to whom the summonses were addressed or to Clarke Legal at whose request the summonses were issued.
As I understand matters, Mr Panagiotou is represented by solicitors. On this occasion, he has chosen to communicate with Clarke Legal and possibly others himself rather than through his solicitors. The wisdom of this course is a matter for him and any arrangements he has with his solicitors. Section 32 of the AAT Act permits a party to the proceeding[12] to appear in person or to be represented by another person.
[12] A “proceeding” is given an extensive definition in s 3(1) of the AAT Act with the result that a party may be represented at any proceeding connected with an application for review of a decision.
Once a person has engaged solicitors, communication usually occurs with those solicitors acting on that person’s behalf but communication directly with the person is permitted. It is not only permitted but could be thought to have been encouraged on this occasion. The Registry’s letter was addressed directly to
Mr Panagiotou and not to his solicitors. That is the result of writing to him at an address that is “C/-” his solicitors. If the Registry wants to encourage consistent correspondence with the parties’ solicitors, it should address that correspondence to the solicitors and refer to their client’s name in the subject line. While solicitors understand the protocols of communication, their clients do not always do so when they are, quite properly, sent a copy of the Registry’s letter and see it addressed in the form adopted by the Registry in its standard letter.
Clark Legal as the point of contact for summonsed persons to obtain information
In accordance with Form 9 in Schedule 1 to the Regulations, each summons issued in this matter concludes with an invitation to the person summonsed to contact Clarke Legal for further information. Relevant contact details are given for Clark Legal. As I said, that accords with Form 9 but I question whether it is appropriate that Form 9 should make provision for that.
Although a summons is issued at the request of a party to a proceeding, it is not that party’s document. It is a document of the Tribunal issued with the authority of s 40(1A) of the AAT Act. Once served on the person named in it, a summons compels that person to comply with it. If he or she does not comply and has no reasonable excuse for his or her failure to do so, he or she is guilty of an offence under s 61(3) of the AAT Act. It will be the Tribunal that examines the matter for compliance in the first instance and it is from the Tribunal’s Registry that further information should be sought. It may be said by some that the Tribunal does not know the nature of the documents sought so that clarification of the documents sought should be given by the party requesting the summons. If it does not know the nature of the documents sought, it should never have issued the summons for its power to issue it only arises if the documents whose production is sought are “for the purposes of the hearing”.[13]
[13] AAT Act, s 40(1A)
The requirement in Form 9 to give the name of the party who has asked the Tribunal to issue the summons is unexceptional. To add that the party named should be contacted for further information is a different matter. It may give the other party and the summonsed person the impression that the party at whose request the summons was issued has some special status in relation to the summons and even in relation to the Tribunal. That is not so and there is no reason to think that Clarke Legal thinks that, has thought that or ever tried to suggest that it did. All that Clark Legal has done is to comply with the drafting requirements of Form 9. The suggestion comes from the fact that the summonsed person is directed to, in this case, Clark Legal by the form prescribed by the Regulations.[14]
[14] On this occasion, the party requesting the summons is the decision-maker, TNT. Section 33(1AA) of the AAT Act provides that the decision-maker “… must use his or her best endeavours to assist the Tribunal to make its decision in relation to the proceeding.” A duty to try to assist the Tribunal does not equate to an obligation to carry the Tribunal’s obligations for it.
That suggestion has, in turn, led Mr Panagiotou to think that he should address his objection to the summonses to Clarke Legal and not to the Tribunal. That was not correct. It also put Clark Legal in the position that it felt that it should write to the six summonsed persons to explain their obligations. Clark Legal’s letter to the summonsed medical practitioners was properly expressed and set out the situation accurately but, it seems to me, it should not have been put in the position where it felt that the obligation to write it rested on its shoulders.
Clark Legal would have been encouraged in that belief by the final paragraph of the “Notice to the party requesting the summons” that accompanied the issued summonses. I have reproduced it at [9] above but its essence is that it was TNT’s, and so Clark Legal’s, obligation to pursue production of the documents. They are not “obliged” to do so. A summons is, in effect, a direction of the Tribunal to a person who is not a party to a proceeding. As with any direction, a party to the proceeding may approach the Tribunal asking it to enforce its direction when the person to whom it is directed fails to comply. It may well be that there are informal discussions between a party and another party or a summonsed person before an approach is made to the Tribunal. It may be that there is an obstacle to compliance that can be overcome informally. Despite that, compliance remains a matter for the Tribunal. That this is so, is clear from the notice attached to each summons by the Registry and addressed to the person summonsed.[15] The powers of the Tribunal to enforce compliance are limited by the fact that it is an administrative tribunal and cannot be endowed with judicial powers of the sort available to the Federal Court to enforce its orders and directions. For all that, it is inappropriate to suggest, that the Tribunal’s role is as limited as the final paragraph of the “Notice to the party requesting the summons” suggests. Contrary to the suggestion in that notice, the Tribunal’s obligations are not limited to its advising the party requesting the summons of the documents that have been produced in response to a summons. It may be limited to exercising its powers of persuasion but circumstances will arise in which it is obliged to exercise them. Where there is continued non-compliance, there will be occasions when it will need at least to consider whether it should refer that non-compliance to the Director of Public Prosecutions for potential prosecution under s 61 of the AAT Act.
[15] See [10] above
Apart from the obligation that rests on the Tribunal, there is another reason why queries should be made to the Tribunal and not to the party requesting the issue of the summons or the solicitors representing that party. All queries should come to the Tribunal and its Registry. It should be the body responsible for providing information about the summonses it has issued to persons who must comply with them or face being regarded as having committed an offence. In that way, the information given to those served with summonses is consistent over the range of cases in which the Tribunal issues summonses.
Before reaching this conclusion, I looked at earlier versions of the summonses in the Regulations. As the Regulations were originally made in 1976, a summons was provided for in Form 7 with reference to r 15. That was a summons to a person to give evidence or to produce documents. It did not contain any reference to the name of the person requesting the issue of the summons as the point of contact if the person summonsed required further information. That form was amended over the years but the final passage setting out an information point was never part of it.
With effect from 5 November 1993, the single form was replaced by three forms.[16] They were Forms 7, 8 and 9 and were framed in terms consistent with those currently provided for in the Regulations. The Explanatory Statement accompanying the Amendment Regulations introducing the three forms gives no explanation as to why it required information about the person requesting the issue of the summons and why that person should be the point of contact if the summonsed person requires information. All that was said in the Explanatory Statement was:
“Regulation 6 omits Form 7 and inserts new Forms 7, 8 and 9 which provide the new forms of summons.”
A similar amendment has not been made to the various forms of subpoena issued by the Federal Court. The most recent were issued on 1 August 2011. Taking Form 43B, a subpoena to produce documents as an example, it requires information about the party who requested its issue. It does so by requiring the following passage to be completed:
“Issued at the request of [name of party], whose address for service is:
Place: [see rule 11.01]
Email:”
At the foot of the first page, the form of the subpoena also requires information identifying the name and role of the party on whose behalf the subpoena was filed and by whom the subpoena was prepared and their contact details. There is nothing in the form of the subpoena that places the party or the person acting on that party’s behalf as the person to whom the summonsed person should direct his or her requests for further information. As I have already explained, the reasons why a summons issued by the Tribunal should include such a statement elude me.
[16] Forms 7, 8 and 9 repealed and substituted by the Administrative Appeals Tribunal Amendment Regulations 1973 (No. 276 of 1993), r 6
DECISION
For the reasons I have given, I have disallowed:
(1)the applicant’s objection to the issue of six summonses issued on 21 July 2011 and returnable on 10 August 2011 at 9.30am;
(2)the applicant’s objection to the respondent’s inspecting the documents produced on those summonses;
and directed that:
(3)both parties may inspect the documents that have been produced to the Tribunal as at 16 August 2011 in response to summonses issued on 21 July 2011; and
(4)the District Registrar write to the two persons who have not responded to the summonses served upon them, setting out their obligation either to produce documents as required by the summons or, if they have none in their possession, custody or control, to notify the Tribunal to that effect.
I certify that the forty five preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,
Signed: .......................................................................
Leah Berardi, Associate
Return of Summons Hearing 10 August 2011
Date of Decision 17 August 2011
Solicitor for the Applicant Zaparas Lawyers
Solicitor for the Respondent Clarke Legal
In these circumstances, a procedure that incorporates a seven day delay while one party examines the documents does not seem consistent with a procedure developed in light of the Tribunal’s obligation when “… carrying out its functions … [to] pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.”: AAT Act, s 2A.
The same conclusion will often be reached when an applicant is unrepresented. Meeting representatives of the respondent on the day scheduled for a return of a summons can, for an unrepresented applicant as much as a represented applicant, turn out to be an occasion for dispelling misunderstandings, for gaining an understanding of what the review process is all about and even for talking about the points of difference. There may be opportunities for a decision-maker to demonstrate in very practical ways what is encompassed within its obligation to assist the Tribunal: AAT Act, s 33(1AA).
It may be thought that this is achieved through the Tribunal’s conference procedure. So it may but getting the parties together to discuss the relevance of the documents produced on summons to the issues raised by the review of a decision can sometimes bring a depth of understanding that may be difficult to achieve at an earlier stage in the conference process. The particular environment of formality and informality that can be achieved at a summons hearing and that may be conducive to those discussions may be difficult to replicate at a later stage of the proceeding.
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