Tregale and National Disability Insurance Agency

[2019] AATA 2513

Tregale and National Disability Insurance Agency [2019] AATA 2513 (12 August 2019)

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL                   )

)No: 2018/4338

NATIONAL DISABILITY   )

INSURANCE SCHEME DIVISION  )

Re: Tony Tregale
Applicant

And: National Disability Insurance Agency
Respondent

TRIBUNAL:  The Hon. Matthew Groom, Senior Member

DATE OF CORRIGENDUM: 13 August 2019

PLACE:            Melbourne

CORRIGENDUM TO DECISION

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of its written reasons for decision dated
12 August 2019 as follows:

The words ‘General Division’ on the first page of the decision are to be replaced with the words ‘National Disability Insurance Scheme Division’.

...........................[sgd]................................

The Hon. Matthew Groom, Senior Member

Division:GENERAL DIVISION

File Number(s):      2018/4338

Re:Tony Tregale

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:The Hon. Matthew Groom, Senior Member

Date:12 August 2019  

Place:Melbourne

The decision of the Tribunal is to refuse the applicant’s request for a summons to be issued requiring the internal review officer, Mr Daniel Abdelkader, to appear as a witness in the proceedings.

..........................[sgd]........................................

The Hon. Matthew Groom, Senior Member

Catchwords

PRACTICE AND PROCEDURE – request by applicant to issue summons to reviewable decision maker – probative value of evidence to be given – request refused

Legislation

Administrative Appeals Tribunal Act 1975 (Cth) s 40A(1)-(2)

National Disability Insurance Scheme Act 2013 (Cth) ss 34(1), 100(6), 103

Cases

Comcare v Maganga [2008] FCA 285
LSDG and Minister for Immigration and Border Protection (Migration) [2016] AATA 55
Re General Merchandise and Apparel Group Pty Ltd and CEO, Customs [2009] AATA 988

R V Baines [1909] 1 KB 258

REASONS FOR DECISION

The Hon. Matthew Groom, Senior Member

12 August 2019

1. These reasons relate to an oral decision made by the Tribunal at a directions hearing held on 16 July 2019. The Tribunal’s decision was to refuse a request made on behalf of the applicant to summon a witness to appear at the hearing of the substantive application.

2. The substantive application involves a review of a decision of the respondent made on 19 March 2018 to approve a Statement of Participant Supports in a NDIS Plan for Mr Paul Tregale, a 42 year old male living with a severe intellectual disability and autism (the original decision).

3. In making its decision the respondent refused an iPad, massage therapy and music therapy as reasonable and necessary supports under section 34(1) of the National Disability Insurance Scheme Act 2013 (Cth) (the Act), as well as a request to increase support coordination funding.

4. On 23 July 2018 an authorised internal review officer, Mr Daniel Abdelkader, undertook an internal review of the original decision and confirmed the decision in accordance with section 100(6) of the Act (the reviewable decision).

5. On 27 July 2018 Mr Tony Tregale, Paul’s father, made application to this Tribunal for a review of the reviewable decision in accordance with section 103 of the Act.

6. The issues before the Tribunal for determination in the substantive application are whether:

   (a)the iPad, massage therapy and music therapy are reasonable and necessary supports; and

   (b)the requested increase in support coordination funding is a reasonable and necessary support,

   within the meaning of section 34(1) of the Act.

7. A hearing in the matter was commenced on 15 February 2019 but was subsequently adjourned to allow a further assessment to be undertaken in respect of Mr Paul Tregale’s support requirements.

8. In the course of addressing various preliminary matters prior to the recommencement of the substantive hearing, the applicant’s non-legally trained representative, Mr Max Jackson, made a request in writing to the Tribunal for the internal review officer, Mr Abdelkader, to be called to appear as a witness at the substantive hearing (the summons request). The respondent resisted the summons request and a telephone directions hearing was held on 16 July 2019 to consider the matter. At the directions hearing, the respondent was represented by Mr Dominic Law and the applicant was represented by Mr Jackson.

9. In resisting the summons request, Mr Law told the Tribunal that all of the documents relevant to the reviewable decision were before the Tribunal and that it was difficult to conceive of any evidence that Mr Abdelkader could give that would be relevant to the issues in contention, particularly having regard to the Tribunal’s function to undertake a merits review de novo. He contended that, in such circumstances, a summons requesting Mr Abdelkader to appear as a witness lacked the requisite legitimate forensic purpose and on that basis should be refused. Mr Law also noted that, in his experience, he had never known an internal review officer to have previously been the subject of a summons to appear before the Tribunal. In support of its position, the respondent drew the Tribunal’s attention to two previous decisions that considered the issue of legitimate forensic purpose and the associated test of relevance in the context of a summons request: LSDG and Minister for Immigration and Border Protection (Migration) [2016] AATA 55 and Comcare v Maganga [2008] FCA 285.

10. In support of the summons request Mr Jackson put a number of submissions to the Tribunal, including that:

    (a)Mr Abdelkader should be considered to be a “significant witness“ in the case, as he made the reviewable decision and therefore it was important that there was an opportunity for the applicant to cross-examine him;

    (b)While Mr Abdelkader’s letter of 23 July 2018 is in evidence, the Tribunal does not have the benefit of a full report from Mr Abdelkader which properly explains the basis for his decision and providing an opportunity to cross-examine Mr Abdelkader would assist the Tribunal in determining whether Mr Abdelkader’s assessment was correct;

    (c)Allowing the summons request would enable important and relevant questions to be put to Mr Abdelkader, including what his qualifications were; whether he was following his job description; whether he understood and properly applied the legislation and the extent of consideration he gave to the matter;

    (d)Mr Abdelkader should be treated in a manner similar to an independent expert witness and just as the respondent is given the opportunity to cross-examine independent expert witnesses relevant to the case so too should the applicant be given the opportunity to cross-examine Mr Abdelkader;

    (e)The cases cited by the respondent in support of its position were not NDIS cases and given that NDIS cases are dealt with separately by the Tribunal the cases cited were not relevant to the Tribunal’s consideration of the question before it;

    (f)Having regard to the Tribunal’s objectives in section 2A of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act), it would be unfair to the applicant for the Tribunal to allow the respondent’s preferred witnesses to appear and not require a witness requested by the applicant to appear; and

    (g)To deny the summons request would be to deny the applicant the opportunity to present its case which would also be a denial of procedural fairness and inconsistent with the AAT Act.

11. After considering each party’s submissions presented at the directions hearing the Tribunal decided to refuse the applicant’s summons request for the following reasons.

12. The powers to issue a summons or refuse a summons are set out sections 40A(1) and (2) of the AAT Act. They are discretionary powers and, as such, must be exercised for a proper purpose in accordance with the AAT Act, including the Tribunal’s objectives set out in section 2A. Those objectives include providing a mechanism of review that is “fair, just, economical, informal and quick”. It is generally accepted that the principles applied to the issue of subpoenas by a court are also applicable to the issue of a summons, or a refusal to issue a summons, under the AAT Act. There are a number of grounds upon which a subpoena may be challenged including that it is an abuse of process, it is oppressive, it is a fishing exercise or it does not go to matters which are relevant to the issues at hand. These considerations apply equally to any exercise of the discretion in sections 40A(1) and (2) to either issue or refuse a summons. The central issue pressed by the respondent in the question before this Tribunal was one of relevance. The test as to relevance was considered in the context of a request to inspect documents by Bennet J in Comcare v Maganga where he stated at [37]:

    A party seeking to inspect documents does not need to establish, on the basis of probabilities, that the documents will establish anything. Rather, the test is whether the documents relate to the proceedings such that there is a real possibility that they may assist in the resolution of issues in the proceedings.

13. A test as to relevance may also be applied to a request for a summons to appear[1]. There is no reason why a different approach should be adopted in respect of NDIS cases. In applying a relevance test to the summons request in the present matter, the question is whether the Tribunal can be satisfied that there is a real possibility Mr Abdelkader’s evidence will assist the Tribunal in resolving the issues that it is required to determine.

    [1] See Re General Merchandise and Apparel Group Pty Ltd and CEO, Customs [2009] AATA 988 at [220] and R V Baines [1909] 1 KB 258.

14. It is certainly understandable why Mr Jackson would consider Mr Abdelkader to be a “significant witness” who is able to provide evidence that is relevant to the issues in dispute. Mr Abdelkader is, after all, the person who made the decision that the applicant seeks to challenge. However, with respect, Mr Jackson’s contention is misplaced.  In undertaking a review of the reviewable decision, it is not the function of the Tribunal to engage in a critique or analysis of Mr Abdelkader’s decision or the process he undertook in making his decision. Rather the Tribunal’s function is to undertake its own assessment of the issues that were before Mr Abdelkader and to determine for itself the correct or preferable decision. In other words, its function is to undertake the decision making process afresh or ‘de novo’ meaning, ‘from the beginning’. Smithers J  in Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 77-78 described the Tribunal’s task as follows:

    It might be thought that it would be open to the Administrative Appeals Tribunal not to decide for itself whether a decision made by an administrator was the right decision which ought to have been made in the circumstances but rather to satisfy itself that the decision of the administrator was one which an administrator acting reasonably might have made. But to do this would be to review the reasons for the decision rather than the decision itself. It is the actual decision which by virtue of s 25(1) and (4) of the Administrative Appeals Tribunal Act the Tribunal is authorized and required to review. The duty of the Tribunal is to satisfy itself whether a decision in respect of which an application for review is duly instituted is a decision which in its view, was objectively, the right one to be made. Merely to examine whether the administrator acted reasonably in relation to the facts, either as accepted by him or as found by the Tribunal may not reveal this. In this connection the observations of Sheppard J in Horne v Locke (1978) 2 NSWLR 88 at 98-100 are in point. It is to permit implementation of the function of the Tribunal, as so understood, that there has been conferred upon the Tribunal extensive powers of investigation. Those powers are conferred so that the Tribunal may equip itself to make an appropriate recommendation or affirm the decision: see s 43 of the Administrative Appeals Tribunal Act and Pt XXII of the Schedule thereto.

15. Therefore, what was in Mr Abdelkader’s mind when he made his decision is of no relevance to the issues before the Tribunal. It is certainly not necessary for the Tribunal to have the benefit of a detailed explanation from Mr Abdelkader as to how he came to his decision. The only relevance Mr Abdulkader’s decision has to the issues before the Tribunal is the fact that it was made. It is therefore very difficult to conceive of any evidence that Mr Abdulkader could provide to the Tribunal that would assist in the resolution of the issues before it. Leaving aside the appropriateness of a party cross-examining their own witness, certainly the types of questions proposed by the applicant to be asked of Mr Abdulkader are not relevant to the issues at hand.

16. The applicant also contended that Mr Abdelkader was an ‘assessor’ and as such he could express a ‘view’ in much the same way as a medical expert might express an expert view. However, Mr Abdelkader is not an independent expert, he was the previous decision-maker and therefore it would clearly be inappropriate to rely on him to perform a function akin to an independent expert in these proceedings.

17. For these reasons, the Tribunal is not satisfied that there is a real possibility that Mr Abdelkader’s evidence would assist the Tribunal in the resolution of the issues before it.

18. In such circumstances, in the Tribunal’s view, a decision to refuse the summons request is a proper exercise of its discretion under section 40A(2) of the AAT Act. It cannot be consistent with the objective of the Tribunal, including its objective of fairness, to require a person to appear as a witness where, in the Tribunal’s view, there is no real possibility that their evidence would assist in determining the issues before the Tribunal. Nor can it be consistent with the Tribunal’s obligation to ensure procedural fairness in the proceedings. In fact, to allow such a request would be unfair and inconsistent with the Tribunal’s objectives under section 2A.

19. Accordingly, the decision of the Tribunal is to refuse the applicant’s request for a summons to be issued requiring the internal review officer, Mr Daniel Abdelkader, to appear as a witness in the proceedings.

I certify that the preceding 19 (nineteen) paragraphs are a true copy of the reasons for the decision herein of The Hon. Matthew Groom, Senior Member

..................[sgd]..............................................

Associate

Dated: 12 August 2019

Advocate for the Applicant:	Mr Max Jackson
Advocate for the Respondent:	Mr Dominic Lay
Solicitors for the Respondent:	Wisewould Mahony