Sand Goanna Institute Pty Ltd and Australian Skills Quality Authority
[2018] AATA 981
•23 April 2018
Sand Goanna Institute Pty Ltd and Australian Skills Quality Authority [2018] AATA 981 (23 April 2018)
Division:GENERAL DIVISION
File Number: 2017/6671
Re:Sand Goanna Institute Pty Ltd
APPLICANT
AndAustralian Skills Quality Authority
RESPONDENT
DECISION
Tribunal:Senior Member B J Illingworth
Date:23 April 2018
Place:Adelaide
The summons to produce documents is set aside.
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Senior Member B J Illingworth
CATCHWORDS
PRACTICE AND PROCEDURE – Summonses – Whether summons was addressed to the correct recipient – Whether documents sought under the proposed summons are relevant to the decision under review – Whether a summons can be issued to a party to the proceedings – Summons set aside.
LEGISLATION
National Vocational Education and Training Regulator Act 2011, s 155
Administrative Appeals Tribunal Act 1975, s 40A
CASES
Steele and Comcare (Compensation) [2018] AATA 481
Marnotta Pty Ltd and Secretary, Department of Health and Ageing [2004] AATA 800
Trade Practices Commission v Kimberly Homes Pty Ltd (1989) 217 ALR 110
Hunt v Wark (1985) 40 SASR 489
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475
Pantazopoulos and Military Rehabilitation and Compensation Commission [2011] AATA 101
Radge and Commissioner of Taxation [2007] AATA 1317VCA and Australian Prudential Regulation Authority [2008] AATA 580
REASONS FOR DECISION
Senior Member B J Illingworth
23 April 2018
BACKGROUND
The Applicant was a Registered Training Organisation (“RTO”) under the National Vocational Education and Training Regulator Act 2011 (“the Act”). The Respondent is the National Vocational Education and Training Regulator established pursuant to s 155 of the Act.
On 5 and 6 April 2017 the Respondent conducted an audit of the Applicant in the course of which the auditor requested and received material from the Applicant.
On 6 April 2017 the Applicant provided the auditor with a USB memory stick containing all documents relevant to the audit. The Auditor lost the memory stick. The Applicant then arranged for the Auditor to have access to those documents via an online drop box facility.
On 24 August 2017 the Auditor notified the Applicant of the outcome of the audit, and provided the Applicant with an audit report. The Auditor gave notice of intention to cancel the Applicant’s registration as an RTO and allowed the Applicant until 20 September 2017 to rectify the areas said to be non-compliant with the Standards for Registered Training Organisations (“SRTO”) (2015) Standards (“the Standards”).
On 20 September 2017 the Applicant provided material in response to the audit report and rectification by providing access to the relevant documents via the online drop box facility.
On 9 November 2017 the Respondent advised the Applicant of the outcome of the further audit, provided the Evidence Analysis dated 20 October 2017, and gave notice that the decision was to cancel the Applicant’s registration as an RTO on 14 December 2017.
The Evidence Analysis said that the Applicant had not demonstrated compliance in clauses 1.1, 1.2, 1.3, 1.5, 1.8 and 3.1 of the Standards.
REQUEST FOR DOCUMENTS
The Respondent requested the Applicant provide copies of:
(a)The current training and assessment strategies for four qualifications; namely
(i)SIS 40215 Certificate for IV in Fitness;
(ii)BSB 50415 Diploma of Business Administration;
(iii)CHC 52015 Diploma of Community Services; and
(iv)CHC 51015 Diploma of Counselling.
(b)The current assessment tools of each Units of Capacity; and
(c)Copies of all completed assessment tasks for certain students in the Units of Competency.
APPLICANT’S SUBMISSION
The Applicant challenged the Summons to Produce documents (“the summons”) on a number of grounds, namely:
(a)Improper recipient for the respondent summons request;
(b)The relevance and utility of the requested documents;
(c)Improper use of summons powers; and
(d)Consideration of the Applicant’s financial situation.
Improper recipient for the Respondent’s summons request
The Respondent had been, for some time, requesting from the Applicant the documents referred to in the summons. That had occurred through email correspondence and during directions hearings before the Tribunal. There was no doubt about the documents being requested. The Applicant repeatedly declined the request. This culminated in the Respondent issuing the summons.
In argument the Applicant objected to the summons because the party to whom it was addressed was not the Applicant but a Director of the Applicant company.
That Director had been the representative of the Applicant with whom the Respondent had been communicating with respect to the production of the documents. That Director also appeared at various directions hearings including when the request for production was raised by the Respondent.
The Applicant was not surprised by the summons. I note the hearing before the Tribunal is listed on 30 May 2018. The Respondent sought to amend the summons to overcome the error.
No prejudice was occasioned by an amendment to the summons. The Tribunal granted leave to amend the summons to remedy the mischief complained of.
The relevance and utility of the requested documents
There is no disagreement between the parties that the relevance of the documents is highly important and indeed I consider that to be a well-established principle of law.[1]
[1] See for instance Steele and Comcare (Compensation) [2018] AATA 481, [15]-[20] and Marnotta Pty Ltd and Secretary, Department of Health and Ageing [2004] AATA 800, [42].
The summons is issued pursuant to s 40A(1) of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”). The Respondent submits that:
it was issued to obtain evidence that would demonstrate the compliance of the Applicant against the Standards which form the basis of the cancellation decision that form the substantive Proceedings of the Tribunal Review.
I take the submission to in fact be, that the summoned documents would demonstrate the level of compliance, if any, and in particular non-compliance against the standards which form the basis of the cancellation decision.
I note however, that the documents the subject of the summons were not those documents inspected by the Auditor and relied on in the Audit nor were they the documents to which access was given for the purpose of considering rectification of the non-compliance.
The Respondent further submits that the documents “provide further, current evidence … across a more comprehensive sample of the Applicant’s Scope of Registration. …” to assist the Tribunal to “make the correct or preferable determination”.[2]
[2] Respondent’s submissions, [22] (emphasis added).
Further the Respondent argues that the documents “go to the Applicant’s current capacity” to “meet the conditions required for registration”.[3]
[3] (emphasis added).
The Applicant submits that the summons documents are a “wide sample” of the Applicant’s documents and were not used in the audit process. It is submitted that the documents do not satisfy the test of relevance as they bear no relevance to the decision under review.
The Applicant further submits that the consideration of the summons documents amounts to a new audit.
Relevance
The question of relevance was considered in Trade Practices Commission v Kimberly Homes Pty Ltd (1989) 217 ALR 110 in which Hill J said at 113:
It is a well-accepted rule that a subpoena may be set aside as oppressive and as an abuse of the process of the Court if it requires the production of documents which are manifestly irrelevant to the issue between the parties.
In Hunt v Wark (1985) 40 SASR 489 at 493 King CJ said:
A summons to witness to produce documents cannot be used for purposes of mere “fishing”. There must be some reason to suppose that the documents sought will be capable of being used as evidence.
King CJ went on to say:
It is not necessary to construe those words with undue strictness so as to refer only to documents which are admissible evidence. The words are wide enough to include documents reasonably needed for the cross-examination of a witness … whether or not they would ultimately be used in evidence to contradict the witness.
The audit was conducted in respect of the following qualifications:
(a)Diploma of Human Resources Management;
(a)Certificate III in Early Childhood Education and Care;
(b)Diploma of Early Childhood Education and Care; and
(c)Certificate II in Fitness; and
those audit documents are before the Tribunal.
I acknowledge that the Tribunal is not limited to only consider material that was before the original decision-maker. As was stated by Bowen CJ and Deane J in Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 419:
The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal.
However, it is also well‑established that the Tribunal stands in the shoes of the original decision‑maker[4] and that its task is to “do over again” what the original decision‑maker did.[5]
[4] Shi v Migration Agents Registration Authority (2008) 235 CLR 286 (Shi), 324.
[5] Shi, 100. See also Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475, 502.
Documents referred to in the summons may be relevant for the purposes of current or future registration of the Applicant as an RTO. However that current or future registration is not the issue for determination by the Tribunal. The decision under review for the Tribunal relates to the audit process that occurred having regard to the documents produced and the decision that the Applicant RTO be deregistered.
The Tribunal is not persuaded that the documents sought, pursuant to the summons, will assist the Tribunal in considering the decision under review.
The documents the subject of the summons may be relevant in establishing that the current or future registration requirements have been met and whether the Applicant should be an RTO, but not whether the decision under review was correct or preferable.
CONCLUSION
The documents, the subject of the summons, are not relevant to the issue to be determined by the Tribunal in respect of the reviewable decision. In light of that fact there is no reason for the Tribunal to give further consideration to the issues raised by the Applicant in opposition to the summons. I note however that the respondent’s reliance on s 40A(1) of the AAT Act may be misconceived at any rate as the Tribunal has previously, in a number of other matters, held that “a summons is issued at the request of a party to a person who is not a party”.[6]
[6] Pantazopoulos and Military Rehabilitation and Compensation Commission [2011] AATA 101, [16]. See also Radge and Commissioner of Taxation [2007] AATA 1317, [78] and VCA and Australian Prudential Regulation Authority [2008] AATA 580, [120].
DECISION
The summons to produce documents is set aside.
I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth
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Administrative Assistant
Dated: 23 April 2018
Date of hearing: 26 March 2018 Solicitors for the Applicant: Mr R Legat
SB Partners Legal Pty LtdSolicitors for the Respondent: Mr T Lloyd
Australian Skills Quality Authority
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