Rothnie and Australian Securities and Investments Commission

This matter concerned a summons issued by the Australian Securities and Investments Commission (ASIC) to Mr Rothnie, an applicant in review proceedings before the Tribunal. The dispute centred on whether ASIC could validly issue a summons to an applicant in review proceedings for the production of documents, and if so, whether the documents sought were relevant to the issues before the Tribunal.

The primary legal issue before the Tribunal was whether the Tribunal possessed the power under section 40A of the Administrative Appeals Tribunal Act 1975 (Cth) to issue a summons for the production of documents to a party to the proceedings, specifically an applicant. A secondary issue was whether the documents sought by ASIC were relevant to the review proceedings. Mr Rothnie argued that the summons power should generally be reserved for third parties and that the Tribunal's directions power under section 33 of the Act was sufficient for obtaining documents from parties.

The Tribunal considered the wording of section 40A, which permits the Tribunal to summon "a person," and found no statutory prohibition preventing its application to parties to proceedings. While acknowledging previous comments suggesting a reluctance to issue summonses to parties, the Tribunal noted that such reluctance did not equate to a lack of power. The Tribunal applied the test of "apparent relevance," as reiterated in *Comcare v Maganga*, and determined that the documents sought by ASIC were indeed relevant to the issues before it.

Consequently, the Tribunal authorised the issue of a summons against Mr Rothnie, with the draft summons to be amended to specify the particular clients and the nature of the documents sought, namely those recording or used in the provision of financial product advice and other financial services, or forming part of the client file.