Yao and Secretary, Department of Education, Employment and Workplace Relations
[2009] AATA 585
•23 July 2009
Administrative Appeals Tribunal
DIRECTION AND REASONS FOR DIRECTION [2009] AATA 585
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/1364
GENERAL ADMINISTRATIVE DIVISION ) Re QING QUAN YAO Applicant
And
SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DIRECTION
Tribunal Mr D M Connolly, AM, Member Date of direction 23 July 2009
Date of written reasons 7 August 2009
Place Sydney
Decision Pursuant to subsections 33(1), 40(1A) and 40(1C) of the Administrative Appeals Tribunal Act 1975, the Tribunal directs that:
(a) Mr Yao’s request for summonses (a), (b), (d), (e), (f) and (g), referred to in paragraph [9] of these reasons for decision, to be issued, is refused; and
(b) Mr Yao’s request for a summons to give evidence to be issued to Mr Pitkin, of Mission Australia, is granted.
.....................[sgd].........................
Mr D M Connolly, AM
Member
CATCHWORDS
PRACTICE AND PROCEDURE – Summonses to give evidence – Summonses produce documents – Requested by Applicant – Held six summonses not relevant, too broad, served no legitimate forensic purpose, a fishing expedition and oppressive – Six summonses refused and one issued
Administrative Appeals Tribunal Act 1975, ss 33, 40
Administrative Appeals Tribunal Regulations 1976, regs 15, 16
Export Expansion Grants Act 1978
Social Security Act 1991, s 624
Aust v Repatriation Commission [2004] AATA 1094
Cosco Holdings Pty Ltd v Federal Commissioner of Taxation (1997) 37 ATR 432
Principal Registrar of the Supreme Court v Ali Tastan (1994) 75 A Crim R 498
R v Saleam (1989) 16 NSWLR 14
Re Michell Sheepskins Pty and Australian Trade Commission (1986) 9 ALN N244
Re Taxation Appeal WT95/133-14 (1996) 22 AAR 505
REASONS FOR DIRECTION
5 August 2009 Mr D M Connolly, AM, Member BACKGROUND
1. The Applicant, Mr Qing Quan Yao, has requested the Administrative Appeals Tribunal (the Tribunal) to issue six summonses to give evidence and produce documents to four persons associated with the Department of Education, Employment and Workplace Relations (DEEWR), Centrelink, Bankstown and Mission Australia, Punchbowl.
2. On 8 July 2009, Mr Yao was notified in writing that the Tribunal had considered his request and had decided to refuse to issue the summonses requested.
3. Mr Yao requested a directions hearing to give him the opportunity to explain to the Tribunal why he wanted summonses issued. A directions hearing was held on 23 July 2009. Mr Yao represented himself and was assisted by a Mandarin interpreter. Mr Yao claimed that he required these witnesses to explain how his case was allocated to Mission Australia, Punchbowl and whether information, or lack of information, about vacancies with various job network members was shared on 11 -13 February 2008.
4. The Tribunal explained to Mr Yao that the directions hearing was not an opportunity for him to address the substantive issues regarding his application. The decision under review, made initially by Centrelink and upheld by the Social Security Appeals Tribunal (SSAT), applied an eight week non-payment period of newstart allowance on Mr Yao under s 624 of the Social Security Act 1991, following three newstart participation failures within 12 months on 30 May 2008, 22 July 2008 and 11 August 2008.
5. At the conclusion of the directions hearing, the Tribunal decided to refuse to issue five of the summons and to issue one summons to give evidence to an employee of Mission Australia. Mr Yao requested written reasons for the Tribunal’s direction.
ISSUE
6. The only issue before the Tribunal at the directions hearing was whether it should exercise its discretion to authorise or refuse the issue of the summonses requested by Mr Yao.
LEGISLATION
7. Section 40 of the Administrative Appeals Tribunal Act 1975 (the AAT Act), sets out the powers of the Tribunal to issue a summons to give evidence and produce documents, providing, relevantly:
Summons
(1A) Subject to subsection (1B), for the purposes of the hearing of a proceeding before the Tribunal, the member presiding at the hearing, the Registrar, a District Registrar or a Deputy Registrar may summon a person to appear before the Tribunal at that hearing:
(a) to give evidence; or
(b) to give evidence and produce any books, documents or things in the possession, custody or control of the person or persons named in the summons that are mentioned in the summons; or
(c) to produce any books, documents or things in the possession, custody or control of the person or persons named in the summons that are mentioned in the summons.
…
(1B) A summons under subsection (1A) may require a person to appear at a directions hearing to produce books, documents or things instead of at the hearing before the Tribunal.
(1C) A person (other than a presidential member, a senior member or an authorised member) who, under subsection (1A), may summon a person to appear before the Tribunal must not refuse a request to do so unless the refusal is authorised by a presidential member, a senior member or an authorised member.
8. Section 33(1) of the AAT Act, provides:
33 Procedure of Tribunal
(1) In a proceeding before the Tribunal:
(a) the procedure of the Tribunal is, subject to this Act and the regulations and to any other enactment, within the discretion of the Tribunal;
…
THE SUMMONSES
9. On 3 July 2009, Mr Yao filed completed Forms 8 and 9 (in accordance with regs 15 and 16 of the Administrative Appeals Tribunal Regulations 1976), requesting the Tribunal to issue:
(a)A summons to give evidence at hearing and produce documents to Ms Cowell, of Centrelink, Bankstown, and seeking production of the documents:
“To explain how you allotted the applicant to Mission Australian Punchbowl on 11 February 2008 without information about current vacancies of Mission Australian Punchbowl.”;
(b)A second summons to give evidence at hearing and produce documents to Ms Cowell of Centrelink, Bankstown, seeking production of documents:
“To explain why you only had information about current vacancies of Mission Australian Punchbowl and had no such information about current vacancies of other job network members on 11 February 2008.”;
(c)A summons to give evidence at hearing to Mr Pitkin, of Mission Australia, Punchbowl;
(d)A summons to give evidence at hearing to “Mary”, of Mission Australia, Punchbowl;
(e)A summons to produce documents to Ms Sharma, a Senior Legal Services Officer of Centrelink Legal Services and Procurement, seeking production of the following books, documents or things:
“Investigate and tell AAT and the applicant which one is most suitable choice to describe the situation happended on 11 February 2008:
1. Centrelink Bansktown has information about current vacancies of all job network members in Sydney on 11 February 2008.
2. Centrelink Bankstown has NO information about current vacancies of all job network members in Sydney except Mission Australia Punchbowl on 11 February 2008;
3. Centrelink Bankstown has NO information about current vacancies of all job network members in Sydney (including Mission Australia Punchbowl) on 11 February 2008”; and
(f)A second summons to produce documents to Ms Sharma, of Centrelink Legal Services and Procurement, seeking production of the following documents:
“A list of all job network members IN SYDNEY with information about current vacancies on 11 February 2008, 12 February 2008 and 13 February 2008”.
(g)On 4 August 2009, Mr Yao requested a third summons to produce documents to Ms Sharma, of Centrelink Legal Services and Procurement, seeking production of “audio tapes” between Mr Yao and Centrelink on 30 May 2008, 22 July 2008 and 11 August 2008, as well as “audio tapes” between Mr Yao and Centrelink-related Participation Compliance Workflows Summary on 11 August 2008.
Contentions of the applicant
10. Mr Yao contended that Ms Sharma, the Centrelink Legal Officer representing the respondent, should be summonsed to explain Centrelink’s decision and provide a list of job network members with vacancies in Sydney on 11 - 13 February 2008.
11. The Tribunal explained to the applicant that, as he was representing himself and did not have the benefit of counsel he would be treated sympathetically. Nevertheless, it did not appear appropriate for Ms Sharma to receive a summons as she was the legal representative of the respondent and would certainly be present throughout the substantive hearing. The Tribunal would expect her to be fully capable of responding to any questions relevant to the hearing, which the applicant may wish to put to her.
12. Mr Yao did not accept this advice and asserted that he wanted Ms Sharma to be summonsed so that she would bring with her all the additional information and documents which he had requested, and also provide a list of job network members with vacancies in Sydney on 11 - 13 February 2008.
13. Mr Yao stated that he also wanted to obtain documents from and cross-examine Ms Cowell of Centrelink Bankstown, and Mr Pitkin, of Mission Australia Punchbowl, so that he could discover whether or not there were suitable vacancies available elsewhere in the job network in the Sydney metropolitan area on the dates in question. He also wanted Mr Pitkin to confirm whether he had ever given the applicant a copy of a proposed Activity Agreement. Mr Yeo claimed that this information was relevant if the Tribunal was to consider whether the decision made by Centrelink Bankstown to allot him to Mission Australia, Punchbowl, should be set aside.
14. Mr Yao also stated that he wanted to summons “Mary” at Mission Australia, Punchbowl to give evidence because she had made claims against him but he had no recollection of having met her. He wanted her to confirm or deny that she had had dealings with the applicant and that she was familiar with the circumstances of his case.
15. The Tribunal responded that it was not possible to issue a summons with such an imprecise identifier, and no information on the issues had been provided by the applicant on the summons document.
16. The Tribunal noted that in his “facts, issues and contentions”, prepared for the purpose of his summonses submissions, Mr Yao stated that the summons should ask Centrelink to make one choice from three options:
·If Centrelink Bankstown had information about current vacancies throughout the Sydney network they should be summonsed to produce documents relevant to vacancies on 11, 12 and 13 February 2008.
·In the event that Centrelink Bankstown had no information about current vacancies, except for Mission Australia Punchbowl on the designated dates, staff from Centrelink, Bankstown, should be summonsed to explain why they had only information about current vacancies at Mission Australia, Punchbowl, and not elsewhere on 11 February 2008, or
·If Centrelink Bankstown had no information about current vacancies at all job network members in Sydney on 11 February 2008 a designated officer should be summonsed to give evidence and produce documents and explain how the applicant was allotted to Mission Australia Punchbowl on the date in question if there was no information about current vacancies at Mission Australia Punchbowl.
the secretary’s contentions
17. Ms Sharma told the Tribunal that the respondent opposed the issue of all summonses as they were too broad, served no legitimate forensic purpose, constituted a fishing expedition and were, in the circumstances, oppressive.
18. Ms Sharma noted that the substantive matter before the Tribunal namely its forthcoming review of the SSAT decision made on 2 March 2009 which arose from the applicant’s failure to enter into an activity agreement with Centrelink, was not dependent on whether the job network member (Mission Australia, Punchbowl) had any vacancies to accommodate Mr Yao on a given date.
19. The only substantive issue to be determined by the Tribunal was whether Mr Yao had committed three participation failures within the 12 month period under s 624 of the Social Security Act 1991 and, if so, whether he had a reasonable excuse for committing such failures.
20. Ms Sharma stated that the applicant had failed to consider and identify the issues in the summonses which were in the following terms:
“How the applicant was allocated to Mission Australia Punchbowl; vacancies thereof and at other job network members; investigate the available vacancies with all job network members.”
21. Ms Sharma stated that the proposed summonses were too broad and did not specify how the documents requested would assist the Tribunal to clarify the issues. The summonses did not identify specific documents or a range of documents, but required that Centrelink provide access to some statistics for various job network organizations over a period in the past that may have had some association with the applicant in this matter. Ms Sharma noted that assuming that these documents existed, the very nature of the applicant’s demand was that Centrelink be required to produce documents which will have no relevance to the issues in this matter.
22. The summonses were in the widest possible terms akin to a process of general discovery. This ignored the fact that the substantive issues to be addressed were essentially legal in nature, such as whether the applicant was required to enter into a NSA activity agreement on 30 May 2008, 22 July 2008 and 11 August 2008 and, if so, did he have a reasonable excuse for failing to comply.
23. The respondent told the Tribunal that all documents relevant to this appeal had been submitted on 4 May 2008 in the respondent’s “facts and contentions” and the applicant had been provided with a complete copy of those papers and documents.
24. The Tribunal observes that the general principles relating to the issue of subpoenas by a court are applicable to the issue of summons by the Tribunal: Cosco Holdings Pty Ltd v Federal Commissioner of Taxation (1997) 37 ATR 432.
25. Ms Sharma referred to previous authorities, noting that a subpoena must serve a legitimate forensic purpose: R v Saleam (1989) 16 NSWLR 14, the absence of which renders the subpoena an abuse of process. The obligation on a party calling on a subpoena to produce documents is “to identify expressly and precisely the legitimate forensic purpose for which access to documents is sought”: Principal Registrar of the Supreme Court v Ali Tastan (1994) 75 A Crim R 498 at 504 (per Barr AJ).
26. The respondent submitted that, in the above sense, there had already been substantive compliance and, in the circumstances, the summons served no legitimate forensic purpose. If the summonses were issued, it would be a time intensive exercise and all of the documents requested would be irrelevant to the substantive matter before the Tribunal.
27. Furthermore, it was submitted that nothing would be added to clarify the issues by issuing a summons to Mission Australia Punchbowl as detailed in paragraphs 36-38 of the respondent’s statement of facts and contentions, filed on 17 July 2009.
28. The Tribunal asked Ms Sharma to confirm that when the substantive issues were addressed at a hearing on 21 August 2009, the Tribunal could be confident that she would produce any relevant material required by the Tribunal. Ms Sharma gave this undertaking. The Tribunal drew her attention to The Guide to Social Security Law at Attachment N in the applicant’s facts, issues and contentions submission which the applicant was relying upon to support his claim that he had a right to choose from job network members. Ms Sharma assured the Tribunal that she would address these issues at the substantive hearing.
29. The respondent also contended, and the Tribunal agrees, that sections 33 and 40 of the AAT Act made the power to issue summonses discretionary: see Aust v Repatriation Commission [2004] AATA 1094 and Re Taxation Appeal WT95/133-14 (1996) 22 AAR 505.
30. In Re Michell Sheepskins Pty and Australian Trade Commission (1986) 9 ALN N244 (AAT 002640; 22 April 1986), the Tribunal (Neaves J) exercised the discretion against the applicants when they sought the production of documents from 16 competitor companies that had received grants under the Export Expansion Grants Act 1978. The applicants wanted to show that they had been dealt with unfairly when compared to their competitors. The applicants conceded that they did not know whether this had in fact occurred. In refusing to issue a summons, the tribunal held that:
“the application… represents not an endeavor by the applicants to obtain material to support their case but an attempt to discover whether they have a case at all”.
31. Mr Yao contended that Re Michell was not relevant to his situation. The Tribunal replied that it was relevant because he too was seeking the discovery of documents without being sure that they contained information beneficial or relevant to his claims. His desire to summons individuals could be construed as a fishing expedition rather than a bona fide belief that they had relevant information which would assist his claim.
32. The Tribunal reminded the applicant that the substantive issue, which the Tribunal had yet to address, was whether or not he was required to enter into an activity agreement with Centrelink Bankstown; whether or not Mission Australia, the job network, had vacancies or whether there were vacancies elsewhere was not the main issue.
33. The respondent concluded by requesting that the Tribunal use its discretion under the Act against the applicant.
Additional Claims
34. On 28 July 2009, the Tribunal received a letter from Mr Yao in which he claimed:
(a)pages 5 - 6 and 16 - 17 of his “facts and contentions” were part of the submission for the application of summons;
(b)he had been placed at a disadvantage because he had only received the respondent’s submission filed on 21 July 2009 on 22 July 2009 which was 18 hours before the directions hearing on 23 July 2009; and
(c)he was disadvantaged by the Tribunal rejecting his request to check the whole decision in Re Michell. Mr Yao contended that the most important paragraph in that decision had been deliberately excluded from the respondent’s submission. Mr Yao concluded that “the paragraph showed on the respondent’s submission is misleading”.
35. The Tribunal has taken into account the material contained in Mr Yao’s facts and contentions, in particular pages 5 - 6 and 16 - 17.
36. The Tribunal does not accept that the applicant was placed at a disadvantage at the directions hearing vis-a-vis the respondent’s submission, because the hearing was held at his request and at short notice. His claims were drawn from his “facts and contentions” and he has been in possession of the respondent’s “facts and contentions” since 4 May 2009.
37. While Mr Yao may well not have been briefed in advance on Re Michell, the preparation for a hearing is essentially his own responsibility; it is not the Tribunal’s role to prosecute his case for him. Furthermore, the Tribunal’s decision was not made solely on the basis of Re Michell, but on the nature of Mr Yao’s claims in regard to the issuing of summonses and the Tribunal’s duty to give him a fair hearing.
CONCLUSION
38. The Tribunal gave weight to the respondent’s submission that a subpoena must serve a legitimate forensic purpose, the absence of which renders the subpeona an abuse of process: R v Saleam (1989) 16 NSWLR 14. It was not convinced that Mr Yao was engaging in anything other than a fishing expedition, and that Ms Colwell or “Mary” could advance the Tribunal’s understanding as to whether the applicant was required to enter into an activity agreement with Centrelink, on failing to do so whether he committed three NSA participation failures in a 12 month period under s 624 of the Social Security Act1991, and whether he had a reasonable excuse for committing those failures.
39. The Tribunal refuses to issue the two summonses to Ms Sharma, because Ms Sharma is the legal representative of the Secretary. Ms Sharma gave an undertaking that when the substantive issues are addressed on 21 August 2009, the Tribunal can be confident that she will produce any relevant material required by the Tribunal and respond to issues raised by Mr Yao.
40. The Tribunal has agreed to issue a summons to Mr Pitkin, of Mission Australia Punchbowl, to appear before the Tribunal on 21 August 2009, and give evidence concerning relevant issues in dispute.
ADDITIONAL SUMMONS REQUEST ON 4 AUGUST 2009
41. On 4 August 2009, the Tribunal received an additional, belated, request from Mr Yao requesting an additional summons to provide documents be issued to Ms Sharma requiring her to provide the Tribunal with the audio tapes of recorded telephone conversations between the applicant and Centrelink. The Tribunal was subsequently advised by the respondent that no such tapes exist, the information serves no legitimate forensic purpose, constitutes a fishing expedition, and is, in the circumstances, oppressive. As Mr Yao has not presented any evidence which would lead the Tribunal to believe that the respondent’s information is incorrect, the Tribunal declines to issue the additional summons requested by Mr Yao on 4 August 2009.
42. If Mr Yao has any additional issues to raise with the Tribunal, he should raise these at the substantive hearing on 21 August 2009.
DIRECTION
43. For the reasons set out above, pursuant to subsections 33(1), 40(1A) and 40(1C) of the AAT Act, the Tribunal directs that:
(a)Mr Yao’s request for summonses (a), (b), (d), (e), (f) and (g), referred to in paragraph [9] of these reasons for decision, to be issued, is refused; and
(b)Mr Yao’s request for a summons to give evidence to be issued to Mr Pitkin, of Mission Australia, is granted.
I certify that the 43 preceding paragraphs are a true copy of the reasons for the decision herein of Mr D M Connolly, AM, Member.
Signed: ...........[sgd]...........
Steven Mulipola, AssociateDate of directions hearing: 23 July 2009
Date of direction: 23 July 2009
Date of written reasons for direction: 7 August 2009
Representative for the Applicant: Self-representedRepresentative for the Respondent: Centrelink Legal Services and Procurement
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