Taylor and Comcare

[2004] AATA 374

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 374

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2001/42

GENERAL ADMINISTRATIVE  DIVISION		)
Re		EDWARD THOMAS TAYLOR

Applicant

And COMCARE

Respondent

INTERLOCUTORY DECISION

Tribunal Miss Mary Imlach (Senior Member)

Date8 April 2004

PlaceHobart

Decision The Tribunal decides that leave be granted to the applicant to inspect the documents on the basis that the summons documents could conceivably be relevant to any issue arising for determination at the hearing before the Tribunal.  

[Sgd Mary Imlach]

Senior Member

CATCHWORDS

Practice and Procedure – summons to produce documents – whether abuse of process.

R V Turner No 5 (2001) Tasmanian Supreme Court No. 60

Re Lego Australia Pty Ltd and Collector of Customs (1992) 15 AAR 359

Master Builders Association (NSW) v Plumbers & Gasfitters Employees’ Union of Australia (No 1), Federal Court (1987) 20 IR 387

REASONS FOR INTERLOCUTORY DECISION

8 April 2004 Miss Mary Imlach (Senior Member)         

1.      This is an application by Edward Thomas Taylor (“the applicant”) to inspect documents produced by the Department of Defence, the documents being records relating to Stephen John Florrey (Florrey) and Peter James Lee (Lee).

Issue

2.      The issues to be determined are (1) whether the summonses served on the Department of Defence should be set aside on the basis of abuse of process; and (2) whether the army records the subject of the summonses are capable of being seen as having any relevance to any issue within the review of the reviewable decision.

3.      Mr Roland Browne represented the applicant and Mr Brian Morgan represented Comcare, the respondent.

4.      In his claim against the respondent for injury asserted to be post traumatic stress disorder (PTSD), the applicant has asserted in his statement of facts and contentions that he was traumatised and terrified by the behaviour of instructing staff whilst he was an army recruit at Kapooka.

5.      Florrey and Lee were both instructors at Kapooka at the time the applicant was there.

6.      Mr Morgan argued on behalf of the respondent that the power of the Tribunal to set aside a summons was implicit if the summons is shown to be an abuse of power.   He referred to the decision of R v Turner No 5 (2001) Tasmanian Supreme Court Number 60 to support his argument that a summons is oppressive if it requires the production of too wide a class of documents.   Mr Morgan went on to refer to cases under the heading “fishing” where it might be claimed the applicant is endeavouring not to obtain evidence to support his case, but to discover whether he has a case at all.   Mr Morgan claimed that the answer given by the applicant, when asked what was his reason for wishing to have the summonses issued, “in case something came up during cross-examination,” was not a proper basis for obtaining a summons of a person’s personal records.   The respondent objected to both summonses, on the basis that there was nothing to suggest that any records of Florrey and Lee would reveal anything relevant to the material set out in the applicant’s proof of evidence, and in the material which otherwise would have been before the Tribunal, had the hearing gone ahead in December.

7.      The applicant in reply claimed that the Tribunal had no power to set aside the summonses, and in support of his contention quoted the decision of the Tribunal in Lego Australia Pty Ltd and Collector of Customs (1992) 15 AAR at 359 at paragraph 23. Mr Browne argued that the applicant in his proof of evidence referred specifically in paragraphs 8 and 21 to incidents involving Florrey and Lee and himself. He referred again to the decision in Lego, and to the decision in Master Builders Association (NSW) v Plumbers &  Gasfitters Employees’ Union of Australia (No. 1), Federal Court (1987) 20 IR 387 to support his submission that the Tribunal needs to be satisfied of either conceivable relevance or obvious irrelevance.

8.      It appears to the Tribunal that in a case such as this where the applicant is claiming that he is suffering from PTSD brought about by the behaviour of instructing staff whilst he was a recruit at Kapooka, that any behaviour of Florrey or Lee that is inappropriate in the context of their instructions to recruits over a period of time, is going to be relevant to this case.    It follows that any disciplinary record of both Florrey and Lee will be relevant and as both men were recruit training instructors, their service files showing ongoing assessments by their assessing and commanding officers in the areas of leadership, interpersonal skills and how trainers relate to recruits may be relevant.

9.      The Tribunal finds that as the applicant has established that the army records, the subject of the summonses, are capable of being seen as having relevance to any issue within the review of the reviewable decision, it does not accept that respondent’s claim that the summons should be set aside on the basis of abuse of process.

I certify that the 9 preceding paragraphs are a true copy of the reasons for the decision herein of Miss Mary Imlach (Senior Member)

Signed: K L Miller (Administrative Assistant)

Date/s of Hearing  27 January 2004
Date of Decision  8 April 2004
Counsel for the Applicant         Mr Roland Browne
Solicitor for the Applicant          Fitzgerald and Browne
Counsel for the Respondent     Mr Brian Morgan
Solicitor for the Respondent     Ms Naomi Richards
  Australian Government Solicitor