Von Stieglitz and Comcare (Compensation)

[2016] AATA 366

Von Stieglitz and Comcare (Compensation) [2016] AATA 366 (1 June 2016) 

Division	GENERAL DIVISION
File Number(s)	2012/0675
Re	Katherine von Stieglitz
APPLICANT
And	Comcare
RESPONDENT

DECISION

Tribunal	Deputy President Gary Humphries
Date	1 June 2016
Place	Canberra

The Tribunal declines to issue the 3 summonses sought in May 2016 by the applicant.

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Deputy President Gary Humphries

Catchwords

PRACTICE AND PROCUEDRE – summons – Tribunal’s power to issue summons – test of relevance – summons not issued.

Legislation

Administrative Appeals Tribunal Act 1975 (Cth) s 40A

Cases

Comcare v Maganga (2008) 101 ALD 68
Marnotta Pty Ltd and Secretary, Department of Health and Ageing [2004] AATA 800

Phillips and Inspector-General in Bankruptcy (2011) 127 ALD 113

REASONS FOR DECISION

Deputy President Gary Humphries

1 June 2016

1. On about 1 May 2016 the applicant lodged requests to issue three summonses to the Proper Officer at the High Court of Australia to produce certain documents. On 6 May 2016, exercising my authority as an authorised member under s 40A(2) of the Administrative Appeals Tribunal Act 1975 (AAT Act), I refused to issue the three summonses. The applicant has requested reasons for my decision, and they follow below.

   Background

2. The applicant was a Senior Court Reporter employed by the High Court of Australia until April 2008, when her employment was terminated. She subsequently brought two claims for workers compensation against Comcare in relation to her employment at the High Court. In relation to her second claim, initiated in 2012, the applicant applied to the Tribunal for review of a Comcare redetermination denying her compensation for an injury caused, she claims, by the summary termination of her employment.

3. In the course of these proceedings the applicant has caused to be issued four summonses to the High Court, as well as others directed to the respondent, Comcare. Among other things, these summonses have sought production of files referred to in a memorandum to the Chief Justice and minutes of meetings of the Justices of the court. On 14 October 2015 I issued a summons at the request of the applicant to the Proper Officer at the High Court of Australia (the October 2015 summons) in the following terms:

   Apart from the 13 files currently held by the Administrative Appeals Tribunal, all other current or archived files and documentation relating to Ms von Stieglitz’s employment with the High Court of Australia, including files or documents re complaints of workplace harassment, Comcare’s investigation (No 3833) under the Occupational Health and Safety Act 1991 (Cth), the 2007 consultations and proposal to outsource all functions of the Court Reporting Section to Auscript, and any disciplinary action contemplated or taken since 2003 against Ms von Stieglitz.

4. In the course of these proceedings the Tribunal has conducted several hearings in relation to summonsed material, including non-compliance with a summons and claims for legal professional privilege over summonsed material. In the course of some of those hearings, the applicant has repeatedly expressed the view that both the respondent, Comcare, and the High Court have failed to produce documents that she considers were within the ambit of a summons and which should have been produced. The applicant has also made it clear that the three summonses which are the subject of this decision were intended to address and overcome the deficiency – as she sees it – in what has been produced to date by the High Court.

5. This objective was made clear in her written submission supporting her request for these summonses (at paragraph 2):

   Deputy President Humphries had been made aware at the directions hearing on 26 April 2016 of the High Court of Australia’s non-compliance with a Tribunal’s summons and that a significant number of relevant files and/or documents had not been produced to the Tribunal. Deputy President Humphries was informed of my intention to have the Tribunal issue further summonses to obtain those specific files and documents which were directly relevant to issues for determination by the Tribunal.

   The refused summonses

6. The applicant has requested a summons be issued in the following terms (the first summons):

   All current and archived records (hard copy and electronic) including files, file indexes, documents, correspondence, emails, faxes, file notes, records of conversation, records of meetings, or any other communication, in relation to (1) Comcare Investigation No 1894, (2) Comcare Review Investigation No 3237, and (3) Comcare Investigation No 3833, together with all minutes of meetings of the High Court’s OH&S Committee since 30 June 2000 and all records of OHS training provided to executives, managers, supervisors and OHS representatives since 30 June 2000.

   The applicant seeks a further summons (the second summons) in these terms:

   All current and archived records (hard copy and electronic), including files, file indexes, documents, correspondence, emails, faxes, file notes, records of conversation, records of meetings, or any other communication in relation to the restructure of the High Court Registry (including the Court Reporting Section) in 2008.

   Finally, the applicant seeks a summons (the third summons) in these terms:

   All current and archived records (hard copy and electronic) in the direct custody and/or control of the Chief Executive and Principal Registrar, Mr Andrew Phelan, in relation to Ms von Stieglitz’s employment with the High Court, including all files, file indexes, documents, correspondence, emails, faxes, file notes, records of conversation, records of meetings or any other communication.

7. The applicant filed written submissions dated 10 May 2016 in support of her requests.

   The relevant law

8. The Tribunal’s power to issue a summons in proceedings derives from s 40A of the AAT Act:

   Power to summon person to give evidence or produce documents

   (1) For the purposes of a proceeding before the Tribunal, the President, an authorised member or an officer of the Tribunal may summon a person to do either or both of the following, on the day, and at the time and place, specified in the summons:

   (a) appear before the Tribunal to give evidence;

   (b) produce any document or other thing specified in the summons…

   (2) The President or an authorised member may refuse a request to summon a person.

   Clearly, the power conferred by this section is a discretion, and in the exercise of that discretion an application may be refused, though the rules of natural justice apply to such decisions: Phillips and Inspector-General in Bankruptcy (2011) 127 ALD 113 at [48].

9. Although the power to issue a summons is statutory in nature, the scope of what may be included in a summons is determined by common law. The principles governing the exercise of the discretion to issue a summons were set out by Deputy President Forgie in Marnotta Pty Ltd and Secretary, Department of Health and Ageing [2004] AATA 800 at [42]:

   It is apparent from these cases that the court will take into account the relevance of documents sought to the issue in dispute before the court. Their relevance does not need to be established on the balance of probabilities. All that need be established is that the material sought could reasonably be expected to throw light on some of the issues in the principal proceedings. It is not enough if their relevance can only be speculated upon. Regard must also be had to the burden placed upon the person from whom the books, documents or things are sought and that must be weighed against the public interest in the administration of justice that requires all material relevant to the issues to be available to the parties and to the court.

10. Further guidance on determining the relevance of the subject matter of the summons to the proceedings was provided by Bennett J in Comcare v Maganga (2008) 101 ALD 68 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 of relevance 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. (citations omitted)

11. The authorities confer on the Tribunal the same general power enjoyed by the courts to refuse to issue a summons or subpoena, or to set aside a summons or subpoena, if it amounts to an abuse of process. Deputy President Forgie considered the relevant law applying to abuse of process in the courts (and by analogy in the Tribunal) in Phillips at [38]-[39]:

    It seems to me that, in looking at what amounts to an abuse of process, more recent authorities have taken a perspective that extends beyond that of the person requesting the issue of the subpoena and that of the person required to comply with its terms if it were issued. It has extended its perspective to the effect on the proceedings themselves and the perception that right-thinking people might have of them. In Commonwealth of Australia v Albany Port Authority, the Court of Appeal (WA) considered whether an order made by a Judge on his own motion setting aside subpoenas as abuse of process had been properly made.

    In deciding that it had not, both Steytler P and Pullin JA considered the concept of abuse of process and its parameters. Both agreed that what amounts to an abuse of process cannot be exhaustively defined. Referring to abuse of process generally rather than simply in the context of a subpoena, Steytler P said in part (at [20]-[21]):

    [20] ... There is no doubt as regards the accuracy of this last proposition. In Walton v Gardiner (1993) 177 CLR 378 at 393, Mason CJ, Deane and Dawson JJ, speaking in the context of the power to stay proceedings as an abuse of process, said that the jurisdiction of a superior court in such a case was correctly described by Lord Diplock in Hunter v Chief Constable of the West Midlands Police [1982] AC 529 at 536; [1981] 3 All ER 727 at 729 as “the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people”…

    ...

    [21] In R v Carroll (2002) 213 CLR 635; 194 ALR 1; [2002] HCA 55 at [73], Gaudron and Gummow JJ said that “the circumstances in which proceedings will constitute an abuse of process cannot be exhaustively defined and, in some cases, minds may differ as to whether they do constitute an abuse”. (See also Batistatos v Roads & Traffic Authority of New South Wales [2006] HCA 27 at [7] and [9]). What is clear, however, is that the concept extends to proceedings that are “seriously and unfairly burdensome, prejudicial or damaging” (Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 at 247; 79 ALR 9 at 45); “productive of serious and unjustified trouble and harassment” (Oceanic Sun Line, ibid; Hamilton v Oades (1989) 166 CLR 486 at 502; 85 ALR 1 at 11 and Ridgeway v R (1995) 184 CLR 19 at 74-75; 129 ALR 41 at 82–4); invoked for an illegitimate purpose (Rogers v R (1994) 181 CLR 251 at 286; 123 ALR 417 at 444 per McHugh J); or such as to “bring the administration of justice into disrepute” (Rogers, ibid): see, generally, Batistatos at [14]–[15]. It is also clear that, while many cases of abuse arise from the institution of proceedings, any procedural step in the course of proceedings that have been properly instituted is capable of being an abuse of the court's process: Rogers, ibid, and Batistatos at [15].

    Consideration

12. I decline to issue the three summonses requested by the applicant as I consider them to be an abuse of the Tribunal’s process. However, I am prepared to reconsider issuing of the first and second summonses in certain circumstances.

13. The October 2015 summons required the production of all… current or archived files and documentation relating to Ms von Stieglitz’s employment with the High Court of Australia... The ambit of this summons was wide, and in response some 150 pages of documents were produced by the High Court, in addition to the 13 files already produced pursuant to s 71 of the Safety, Rehabilitation and Compensation Act 1988. As a matter of logic, the descriptor documentation relating to Ms von Stieglitz’s employment must include documents in relation to the termination of her employment.

14. The Tribunal takes the view that the three most recent requests for summonses necessarily traverse much of the same ground as was covered by the October 2015 summons, and replicate its effect and that of the other summonses already issued. It is difficult to see what valid forensic purpose is served by issuing a summons reproducing the effect of a summons already issued.

15. This rests on the assumption, of course, that the earlier summonses issued to the High Court have been met in full, and that all documents relating to Ms von Stieglitz’s employment with the High Court of Australia have in fact been produced. The Tribunal is in no doubt that the applicant strongly disputes that assumption, and indeed notes that she has commissioned the three recent summonses with the express purpose of obtaining documents which she contends should already have been released for her perusal.

16. Putting aside the implicit concession in this position that the recent summonses wholly or partially replicate the work of earlier summonses, the question arises as to whether fresh summonses in these circumstances are appropriate forensic tools or are an abuse of the Tribunal’s processes. I take the view that they are, generally speaking, the latter. Both Comcare and the High Court are on notice of the applicant’s view about the deficiency in the evidence already produced. Opportunities had been created for both the High Court and Comcare to reassess their position with respect to documents lodged with the Tribunal; Comcare expressly and the High Court by implication have indicated that no further documents have been located which answer the earlier summonses to them respectively and which have not yet been produced. In these circumstances, simply reissuing a summons already served and responded to, or issuing a summons to the same end but expressed in different language, is not an action that right-thinking people (to adopt the language of Phillips at [38]) would regard as a proper use of the Tribunal’s powers.

17. The temporal scope of the most recent requested summonses, of course, will be greater than that of the October 2015 summons, in that they will capture any documents in relation to the applicant’s employment which were created since that summons was served. If there are any such documents,  any real possibility that the documents may assist the proceedings has not been demonstrated or even suggested in the applicant’s submission, and in the absence of such a suggestion the request could properly be viewed as a fishing exercise: Hunt v Wark (1985) 40 SASR 489 at 493.

18. Having stated the broad principles applying to all three summonses, slightly different considerations apply to each.

    The first summons

19. Prima facie, to the extent that the first summons goes beyond the scope of the subject matter of the October 2015 summons, it must necessarily require the production of documents which, by definition, are not relevant to these proceedings. For example, it seeks the production of, inter alia, documents in relation to (1) Comcare Investigation No 1894, (2) Comcare Review Investigation No 3237, and (3) Comcare Investigation No 3833… The Tribunal understands that Comcare Investigation 3833 was commenced in May 2008 following the termination of the applicant’s employment, and it investigated allegations of bullying and harassment which were given rise to by claims made by the applicant. Documents related to this investigation were specifically sought in the October 2015 summons. Investigations 1894 and 3237 preceded Investigation 3833. It appears that Investigation 1894 took place some time before December 2007, and Investigation 3237 was a review of that earlier investigation (presumably a progress report on implementation of the earlier investigation’s recommendations). The applicant contended in her submission that Investigation 3833, dealing with her allegations, was based on information obtained from the High Court of Australia in relation to the earlier investigations.

20. Thus there is clearly a connection between Investigation 3833 (into the applicant’s allegations of bullying and harassment) and the two earlier investigations. The applicant contends that this connection is sufficient to warrant the grant of a summons to produce papers relating to the earlier investigations. A connection is not to be denied, but a connection is not necessarily sufficient to justify the issuing of a summons. Anything in the earlier investigations which related to the applicant’s employment, or to the termination of that employment, must have been included in the ambit of the earlier summonses, particularly the October 2015 summons. The Tribunal presumes that material related to any of those investigations, to the extent that it relates to the applicant’s employment, will have been produced already. Anything included in the scope of the first summons which is not included in the scope of the earlier summonses must, by definition, be something which is not relating to Ms von Stieglitz’s employment with the High Court of Australia. A connection with the applicant does not, by itself, make something relevant to her claim for compensation arising out of the termination of her employment. To give an extreme example, documents in relation to any of the hearings at the High Court in which the applicant was a court reporter would be documents with which she had a connection, but that connection would clearly not, by itself, be sufficient to support a summons for all or any of those hearing documents to be produced.

21. Investigations 1894 and 3237 were apparently not investigations into the applicant or into allegations she had made. The only nexus between the applicant and those investigations was that a later investigation, No 3833, which was evidently related to the applicant’s employment, was based on information contained in the earlier reports, presumably of a generic kind relating to employment conditions at the High Court. Applying the test in Marnotta, an argument might be sustained that the earlier investigations could reasonably be expected to throw light on some of the issues in the principal proceedings. The Tribunal is open to any evidence of this kind.

22. By contrast, the first summons seeks all minutes of meetings of the High Court’s OH&S Committee since 30 June 2000 and all records of OHS training provided to executives, managers, supervisors and OHS representatives since 30 June 2000. Again, given the applicant’s interaction with the High Court’s OH&S mechanisms during the period of her employment, a connection of sorts must exist between those mechanisms and her, but the connection appears to be a tenuous one. The probative opportunities presented by the production of, say, OH&S training records from the year 2000 – eight years before her employment was terminated – would not appear, at first blush, to be significant; certainly none have been advanced in the applicant’s submissions. As such, the Tribunal would regard a bid for the production of such records as a fishing exercise, in the absence of any better evidence of their relevance.

23. In these circumstances, the Tribunal chooses not to exercise its discretion to issue a summons in the form proposed in the applicant’s first summons. However, it indicates its willingness to issue a summons which seeks only documents related to Investigations 1894 and 3237, if the applicant is able to suggest a basis on which the documents may be probative of the issues given rise to by her substantive application.

    The second summons

1. The second summons seeks production of all current and archived records … in relation to the restructure of the High Court Registry (including the Court Reporting Section) in 2008. As was determined in relation to the first summons, all documents falling under this rubric relating to Ms von Stieglitz’s employment with the High Court of Australia have been the subject of earlier summonses. Once again, assuming that the earlier summonses have been fully answered, no new material could be produced in answer to the second summons which relates to the applicant’s employment, or the termination of it.

2. Once again, the applicant in her submissions has not drawn the Tribunal’s attention to the probative value that documentation relating to the restructure of the High Court Registry, beyond what relates to her employment, might bring to these proceedings. However, as in the case of the first summons, the Tribunal indicates its willingness to issue a summons in these terms if the applicant is able to suggest the probative value of such a summons.

   The third summons

3. The third summons contemplates the production of all current and archived records (hard copy and electronic) in the direct custody and/or control of the Chief Executive and Principal Registrar, Mr Andrew Phelan, in relation to Ms von Stieglitz’s employment with the High Court… Clearly, given Mr Phelan’s ongoing status as an officer of the court, this category of documents constitutes merely a subset of the current or archived files and documentation relating to Ms von Stieglitz’s employment with the High Court of Australia which the October 2015 summons required to be produced. As such, there is no material contemplated in the third summons which was not caught by the terms of the October 2015 summons. Issuing a summons which fully replicates the work of an earlier summons must properly be seen as an abuse of the Tribunal’s powers.

4. For these reasons I decline to issue the three summonses sought in May 2016 by the applicant.

I certify that the preceding 27 (twenty -seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President Gary Humphries

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Associate

Dated 1 June 2016