Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd

Administrative Appeals Tribunal Regulation 2015

Safety, Rehabilitation and Compensation Act 1988

Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN(NSW) 250

Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984] 3 NSWLR 98

Comcare v Maganga [2008] FCA 285; (2008) 47 AAR 487; 101 ALD 68

Compsyd Pty Ltd v Streamline Travel Service Pty Ltd (1987) 10 NSWLR 648

Cosco Holdings Pty Ltd v Commissioner of Taxation [1997] FCA 1504; (1997) 37 ATR 432

Hamilton v Oades [1989] HCA 21; (1989) 85 ALR 1

Hunt v Wark (1985) 40 SASR 489

Re Becker and Minister for Immigration and Ethnic Affairs [1977] AATA 12; (1977) 1 ALD 158; 15 ALR 696

Re General Merchandise & Apparel Group Pty Ltd and the Chief Executive Officer of Customs [2009] AATA 988; (2009) 114 ALD 289; 51 AAR 1; 78 ATR 221

Re QT97/35-36 and Commissioner of Taxation [1997] AATA 339; (1997) 37 ATR 1036

Trade Practices Commission v Arnotts Ltd [1989] FCA 248; (1989) 88 ALR 90

Re Trade Practices Commission v Kimberley Homes Pty Limited [1989] FCA 262

Waind and Hill v National Employers' Mutual General Association Ltd [1978] 1 NSWLR 372

Wilson v Minister for Aboriginal and Torres Strait Islander Affairs [1996] HCA 18; (1996) 189 CLR 1

Witness v Marsden [2000] NSWCA 52; (2000) 49 NSWLR 429

1. Under s 40A of the Administrative Appeals Tribunal Act 1975 (AAT Act) Comcare requested the Tribunal to issue a summons to The Proper Person Medicare Australia (Medicare) to produce:

"A Medicare claims history report and pharmaceutical claims history report detailing all claims and benefits made in relation to Mr David Jones ... from 1 January 1984 to present."

An officer of the Tribunal[1] issued the summons. Mr Jones' solicitors objected to the summons on the bases that, without an explanation of its specific relevance to the issue in dispute, it is fishing and, in any event, its disclosure is prohibited by s 135A of the National Health Act 1953 (NH Act).[2] His solicitors have conceded that their objection based on s 135A could not succeed.

1. I gave leave to Mr Jones and his solicitors to inspect the documents but have deferred any entitlement of Comcare to inspect until after the resolution of his objection to the summons. The parties have now made written submissions addressing the objection to the summons. Mr Jones has also submitted that, even if the summons is not set aside, I should refuse to permit Comcare to inspect the documents that have been returned by Medicare.

1. I have decided that Mr Jones is a person entitled to apply for the summons to be set aside. I have also decided to set the summons aside on the basis that it is a fishing expedition and also on the basis that there is, on the material I have been given, no adjectival relevance between the documents described in the summons and the issues in dispute in the case.

1. In the Tribunal's Divisions other than the Social Services and Child Support Division, s 40A(1) of the AAT Act provides:

"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:

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

1. The President or an authorised member may refuse a request to summon a person.[3] An "authorised member" is a member who has been authorised by the President under s 59A for the purposes of the provision in which the expression occurs.[4] By an instrument dated 27 October 2015, Deputy Presidents, Senior Members and Members are authorised by the President to refuse a request to summon a person.

1. Section 40B regulates the inspection of documents issued under a summons. Leave to inspect a document or other thing produced under a summons in relation to a proceeding may be given by the President, an authorised member[5] or an authorised officer.[6] Sections 40B(2) and (3) apply if an authorised officer makes a decision about leave but that has not happened in this case.

1. In Cosco Holdings Pty Ltd v Commissioner of Taxation,[7] Spender J approved the course that I had taken in applying the principles applicable to subpoenas duces tecum issued by the courts to summonses to produce documents issued under the AAT Act.[8] As I said in Re General Merchandise & Apparel Group Pty Ltd and the Chief Executive Officer of Customs[9] (General Merchandise), this approach is consistent with the Tribunal's being based on the judicial model[10] and with its being given tools to require people to give evidence and to produce documents or things that are consistent with those given to the courts. It is also consistent with the s 33(1) of the AAT Act when it provides that, subject to the legislation itself and regulations made under it, the Tribunal's procedure is within its discretion.

1. Provided the request to issue a summons is accompanied by a summons in the approved form, an officer of the Tribunal will generally issue that summons. When the person named in the summons is given it in accordance with Part 4 of the Administrative Appeals Tribunal Regulation 2015 (AAT Regulation), he or she has an obligation to comply with it unless doing so might tend to incriminate the person.[11] That person may, however, object to the summons. The objection will be heard by the Tribunal just as a court will hear an objection by a person to whom a subpoena ad testificandum is addressed.[12] If it decides that the objection has merit, it may set the summons aside, either wholly or in part.[13] I will come to the grounds on which an objection may be made shortly.

1. In some circumstances, a party to the proceeding in which the summons was issued but who did not request its issue, may ask that it be set aside. This has been considered by McClelland J in the context of the former Part 37 Rule 8 of the Supreme Court Rules 1970 (NSW). That rule provided that the court might, of its own motion or on the motion of a person having sufficient interest, set aside the subpoena wholly or in part. McLelland J considered an application by the defendants in Compsyd Pty Ltd v Streamline Travel Service Pty Ltd[14] to set aside subpoenas issued at the request of the plaintiff and directed to third parties. His Honour considered what is meant by "sufficient interest" after noting that the rule did not confine standing to make an application to the person to whom the subpoenas were addressed:

"... I do not think that the mere fact that the moving party is a party to the proceedings necessarily establishes a sufficient interest in having the subpoena set aside. It would all depend on what interest existed, in fact, in the moving party in relation to the documents which the subpoena required to be produced. If, for instance, the documents were documents in which the moving party had a proprietary interest or if the documents contained information which the moving party claimed to be confidential to it, then, in my view, either of those situations would provide a sufficient interest to justify an application to set aside the subpoena. Another example is the very situation illustrated by the case R v Lewes Justices where the Crown, obviously, had a sufficient interest in seeking to set aside a subpoena addressed to someone else on the basis of public interest privilege in the contents of the documents sought to be produced. So I do not think that this application can be disposed of on the ground of standing without an examination of the connection, if any, between the documents sought to be required to be produced by the subpoenas in question on the one hand, and the defendants on the other.

I would also add this: that the rule provides that the Court may, of its own motion, set aside a subpoena, and one can readily contemplate situations where the Court, having had its attention drawn to the terms of the particular subpoena by a party, might decide to act on its own motion, and the Court could well take such a course where the circumstances indicated that to require a formal application by the person to whom the subpoena was addressed would simply waste money and time. Whether, in the present case, any of the subpoenas would be such as might be dealt with under that power remains to be seen."[15]

1. Examples of the grounds on which a court will set aside a subpoena were summarised by Powell J in Botany Bay Instrumentation & Control Pty Ltd v Stewart[16] when he said:

"... a reference to the authorities makes it tolerably plain that the court will exercise its undoubted jurisdiction to set aside a subpoena in a variety of cases, as, for example:

1. unless the subpoena was issued for the purpose of a pending trial, hearing or application ...
2. where to require the attendance of a witness would be oppressive ...
3. where the subpoena had not been issued bona fide for the purpose of obtaining relevant evidence and the witness to whom the subpoena had been addressed was unable to give relevant evidence ...
4. where the subpoena has been used for the purpose of obtaining discovery or further discovery against a party ...
5. where the subpoena has been used for the purpose of obtaining discovery against a third party...
6. where to require a party to comply with a subpoena to produce documents would be oppressive ...
7. where the subpoena has been issued for a purpose which is impermissible, as, for example, 'fishing' ..."[17]

1. The principles underpinning grounds such as these are twofold. One is that a subpoena will be set aside if it is an abuse of process.[18] That is a consequence of the inherent power in a court, and the express power given to the Tribunal under s 33 of the AAT Act, to control and supervise its proceedings. That power includes the incidental power to prevent an injustice. "... In this context injustice is not simply a question of the purpose or motive for which the relevant proceedings were instituted but includes a consideration of the consequences of the proceedings for the person invoking the power."[19]

1. Whether injustice will arise depends upon a consideration from the perspectives not only of the parties but also that of the person to whom the subpoena has been issued. The general principles were summarised by Beaumont J in Trade Practices Commission v Arnotts Ltd,[20] Beaumont J outlined two different aspects of the concept of an abuse of process:

" The general test for present purposes is well settled. The issue of a subpoena will be an abuse of process if it is not used for a legitimate forensic purpose: see Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984] 3 NSWLR 98 at 100-1. But, as Deane and Gaudron JJ observed in Hamilton v Oades [1989] HCA 21; (1989) 85 ALR 1 at 11, the court's general powers in this area have a dual aspect: 'The inherent power of a court to control and supervise proceedings includes the power to take appropriate action to prevent injustice ... [This] power ... is not restricted to defined and closed categories ... In this context injustice is not simply a question of the purpose or motive for which the relevant proceedings were instituted but includes a consideration of the consequences of the proceedings for the person invoking the power. ...'

" In other words, the present inquiry is not limited to an analysis of the true purpose of Arnotts in procuring the issue of the subpoena. It is also material to look at the impact of the subpoena upon Mattingly [Pty Ltd, being the party to whom the subpoena had been issued to it]."[21]

1. There are many cases applying these principles and providing insight into the circumstances in which an objection to a subpoena, and so a summons, will or will not be upheld. I need only explore two aspects further. One is that the Tribunal's power to issue a summons is given by s 40A(1) "for the purposes of a proceeding before the Tribunal". As I said in General Merchandise:

"... The power may not be used in the course of a proceeding for the purposes of obtaining documents that may assist one or more of the parties to the proceeding to pursue a collateral purpose even if it is a purpose that bears a relationship to the decision being reviewed by the Tribunal but does not raise an issue that is reviewable. As it would be put in the context of a subpoena, it must be issued in good faith, and so bona fide, for a purpose relevant to the review.

Therefore, in considering whether to set aside a summons, it must be examined with that in mind. If the documents, books or things it seeks '...could reasonably be expected to throw light on some of the issues in the principal proceedings'[22] then the relevance of the summons for the purposes of the hearing of the proceeding will be established. 'It is not a question of looking at the documents to see if the documents might permit a case to be made.'[23] It is clear from the authorities that the relevance of the documents sought in the summons requested does not have to be established on the balance of probabilities. ..."[24]

1. The second aspect I need to explore further is one that I also considered in General Merchandise:

" If the summons is essentially based on mere speculation that the person named in it has relevant material, its being seen as for the purposes of the hearing of a proceeding becomes more tenuous. Principles developed by the courts in relation to 'fishing expeditions' when considering subpoenas will raise themselves for consideration. They are part of a wider group of principles developed by the courts to determine whether a subpoena is oppressive. Given that the person answering the subpoena is a stranger to the proceedings, the principles can be seen as tools to determine the proper balance between obtaining evidence and material to the issues between the parties in a matter and the burden imposed upon the recipient of the subpoena. Precisely the same balance must be achieved in deciding whether a request for a summons should be refused or, if issued, a summons should be set aside.

A fishing expedition has been described by Owen J in Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd[25] in this way:

"A 'fishing expedition', in the sense in which the phrase has been used in the law, means, as I understand it, that a person who has no evidence that fish of a particular kind are in a pool desires to be at liberty to drag it for the purpose of finding out whether there are any there or not."[26]

As King CJ, with whom both White and Millhouse JJ concurred, said in Hunt v Wark:[27] "... There must be some reason to suppose that the documents sought will be capable of being used ...."[28]

1. Objection to summons, leave to inspect documents and admission of summonsed documents in evidence raise separate and distinct issues

1. A submission has been made on behalf of Comcare that it seeks to inspect the records returned by Medicare Australia and does not need to demonstrate that those records either exist or that they are relevant. All that is relevant is that there is a real possibility that the records may assist in resolving the matters before the Tribunal.

1. It seems to me that Comcare's submission overlooks the three distinct steps that are taken once a summons has been issued by the Tribunal. They are the same three steps that are taken when a court issues a subpoena duces tecum to produce documents or things. Whether in a court or in the Tribunal, there will be cases in which there is no need to take each step consciously and the process flows from the issue of the summons or subpoena through inspection to the tendering of those documents in evidence in the proceeding in which they have been issued. There will be other cases in which it is necessary to take each step consciously for different considerations apply to each. This was explained by Moffit P in Waind and Hill v National Employers' Mutual General Association Ltd:[29]

"The first is obeying the subpoena, by the witness bringing the documents to the court and handing them to the judge. This step involves the determination of any objections of the witness to the subpoena, or to the production of the documents to the court pursuant to the subpoena. The second step is the decision of the judge concerning the preliminary use of the documents, which includes whether or not permission should be given to a party or parties to inspect the documents. The third step is the admission into evidence of the document in whole or in part; or the use of it in the process of evidence being put before the court by cross-examination or otherwise. It is the third step which alone provides material upon which ultimate decision in the case rests. In these three steps the stranger and the parties have different rights, and the function of the judge differs."[30]

1. Care must be taken to distinguish the authorities that are concerned with one step from another. In the case of Comcare v Maganga,[31] for example, Bennett J considered a decision by the Tribunal refusing Comcare access to a file of documents produced by Mr Maganga's former solicitors. His former solicitors had acted for Mr Maganga in relation to a claim for criminal injuries compensation arising out of an assault on 15 February 1997. In 2006, Mr Maganga lodged a claim for injury to his knee as a result of an assault he said had occurred on 14 February 1997 while he was travelling home from work. He also claimed compensation for injuring his knee in August 2003 and November 2004 while travelling home from work. By the time of the hearing, Mr Maganga was claiming compensation only for his knee injury on 15 February 1997 and in November 2004. Comcare cross-examined Mr Maganga regarding inconsistencies between his statement that he had not claimed compensation for the injury to his knee on 14 February 2006 in light of a claim form that he had lodged for compensation. He was cross-examined about similarities between the injuries he said he had sustained on 14 and 15 February 1997. Comcare sought access to the file that had been produced by Mr Maganga's former solicitors so that it could ascertain whether Mr Maganga had made inconsistent statements in relation to those injuries when he made his claim for criminal injuries compensation.

1. The Tribunal had made its decision on three bases: it would have been unfair to

Mr Maganga to admit the material; it was inappropriate for Comcare to be permitted to go on a fishing expedition to ascertain what the file contained and particularly if the documents were sought only to impugn his credit; and there was no suggestion that the file contained material relevant to the determination of the factual issue before the Tribunal.

Mr Maganga's former solicitors had not objected to the summons when it was addressed to them and nor had his then solicitors.

1. In her judgment, Bennett J clearly addressed the second of the three steps that Moffit P identified in Waind and Hill v National Employers' Mutual General Association Ltd i.e. inspection of documents that had been produced in response to a summons, to which no objection had been taken. She clearly distinguished between the second and third steps when she said "... The test for permissible inspection is not whether the documents ought to be admitted into evidence ...".[32]

1. At the same time, it is clear that the first two steps sit consistently with each other in so far as relevance and principles of fishing are involved. The Tribunal in Comcare v Maganga had decided that Comcare could only inspect the documents that had been produced if it could be established that they would reveal that Mr Maganga had made a prior inconsistent statement. Her Honour decided that the Tribunal had been incorrect saying:

"... 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 ...

Further the test of relevance for the purpose of inspection is not confined to whether the documents in question will or may establish an inconsistent statement by a witness giving evidence in the proceedings or whether the documents themselves will prove a fact in issue. The Court may allow documents to be inspected if they are apparently relevant or are on the subject matter of the litigation ... or if they might be used for a legitimate forensic purpose in cross-examination ... The summonsed documents, prima facie, were relevant to the claimed fourth injury which claim depended, in turn, on Mr Maganga 's credit."[33]

1. This case is concerned with the first step alone. May Mr Jones, through his solicitors, apply to have the summons issued to Medicare set aside? I have formed the view that he may. The documents described in the summons are his claims history and pharmaceutical claims history. That is personal information relating to Mr Jones. The fact that Comcare seeks its production in response to a summons gives him standing to ask the Tribunal to set that summons aside.

1. I have summarised various grounds on which an objection may be made to a summons. The main ground on which Mr Jones relies is that Comcare has not demonstrated adjectival relevance of the documents. That is to say, it has not shown that the documents produced by Medicare can properly or fairly be described as being able to assist in the resolution of the matters arising in the present proceedings. Mr Jones has also submitted that the summons was issued a fishing expedition.

1. That brings me to the subject matter of the proceedings in the Tribunal. Mr Jones has lodged two applications for review of decisions made by Comcare. Their history begins with Mr Jones claiming compensation under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) for bursitis of the right shoulder that he attributed to overuse of the computer mouse. He first sought treatment for it on 24 March 2009. On 24 July 2009, Comcare accepted liability for subacromial bursitis (right). In February 2012, Comcare accepted liability for two secondary conditions: sprain of shoulder and upper arm (left); and lateral epicondylitis (right). On 10 May 2012, Comcare accepted liability for a third secondary condition: major depressive disorder, single episode.

1. On 25 April 2016, Mr Jones claimed compensation for permanent impairment in relation to all conditions. Comcare made a determination on 11 November 2016 denying liability in respect of sprain of shoulder and upper arm (left) because it found that the level of Mr Jones' permanent impairment was less than 10% whole of person (WPI). It went on, however, to accept liability for permanent impairment in relation to Mr Jones' subacromial bursitis (right) (11% WPI) and major depressive disorder, single episode (20% WPI). Mr Jones accepted payment calculated on that basis on 21 November 2016.

1. In January 2018, Mr Jones advised Comcare that his injuries had worsened. Comcare sought updated medical reports. Of relevance in this case is the determination that it then made on 16 October 2018. That determination had denied present liability for medical expenses under s 16 of the SRC Act and incapacity payments under s 19. In particular, it had denied that Comcare was presently liable to pay compensation under either ss 16 or 19 in respect of secondary physical conditions of "sprain of shoulder & upper arm (left)" and "lateral epicondylitis (right)" from 15 September 2018.[34] Comcare went on to affirm that determination on 2 January 2019 and Mr Jones lodged an application for its review.[35]

1. The other decision under review is Comcare's reviewable decision dated 25 September 2019 affirming a determination dated 14 August 2019 denying Mr Jones' claim for permanent impairment in relation to his left upper limb. Comcare was not satisfied that his impairment was due to his accepted condition of sprain of shoulder & upper arm (left) or that the further underlying conditions identified on medical examination, had been caused or aggravated by his employment. Mr Jones had attributed the further conditions to his having to use his left upper extremity for activities that he would previously have undertaken with his right. Comcare affirmed its determination on 25 September 2019 and Mr Jones lodged an application in the Tribunal for its review on 2 October 2019.[36]

1. It is a matter of public knowledge that Medicare commenced on 1 February 1984 following the enactment of the Health Legislation Amendment Act 1983. In general terms, provided an individual makes a claim for a medical or health service that is included in the Medical Benefits Schedule, Medicare will pay a specified benefit, in the form of a rebate, for the particular service rendered to that individual. Potentially, Comcare's summons can require production of claims and benefits relating to Mr Jones for the period from 1 February 1984 to the date on which Medicare complied with it. Certainly, they relate to a medical or health service rendered to Mr Jones but there is nothing in the nature of the documents described in the summons that reveals any quality or content of those documents that may throw light on the particular issues that will be raised in reviewing Comcare's two decisions as I have described them.

1. Furthermore, by seeking such a broad range of documents, Comcare has described a pool of documents, as it were, that draws in 35 years of health or medical services provided to Mr Jones and for which he has claimed a rebate from Medicare. Comcare seeks to filter that pool of documents to locate any that relate to the two decisions under review. It has given no indication that it knows that there are any documents in that pool that are of relevance to the issues in this matter let alone there being a real possibility that any may assist in its resolution.

1. The circumstances of this case are in stark contrast to those in Comcare v Maganga where there was a reasonable possibility that file summonsed from Mr Maganga's solicitors, who had acted for him in relation to his claim for criminal injuries compensation for one of a series of four injuries for which he had claimed compensation over the years, could have assisted in the resolution of the issues relating to his claim for compensation in relation to two of them. Furthermore, there was a reasonable possibility that they might assist in resolving his credibility, which was a crucial issue in that case.

1. In this case, Comcare has asked for documents that, from their description, have no apparent relevance to the issues in this case. Whether Comcare were to use a filter or a dragnet to look for documents that may have a real possibility of assisting in the resolution of the matter, its task cannot escape the description of "fishing". It has requested the issue of the summons in the hope that what is returned will disclose fish, or a school of fish, that are relevant to the issues. Unlike a fisher of fish, hope without adjectival relevance is not sufficient to justify Comcare's endeavour. The summons is objectionable on both bases and I will set it aside.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for the decision herein of Deputy President S A Forgie

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

[1] An "officer of the Tribunal" means the Registrar or a person appointed as an officer under s 24PA: AAT Act; s 3(1).

[2] In summary, s 135A(1) provides that a person shall not, except in the performance of duties, or in the exercise of powers or functions under the NH Act or for certain other purposes divulge or communicate to any person any information with respect to the affairs of a third person that he or she has acquired in the performance of those duties or in the exercise of powers or functions under that legislation. Where the third person is a party to an action or proceeding before a court, s 135A(1) does not preclude disclosure to the court of information with respect to his or her affairs: s 135A(2). A "court" includes the Tribunal as it has power to require the production of documents or the answering of questions: s 135A(24).

[5] By an instrument dated 27 October 2015, Deputy Presidents, Senior Members and Members are authorised by the President to give a party to a proceeding leave to inspect a document or thing under s 40B(1).

[7] [1997] FCA 1504; (1997) 37 ATR 432; Spender J

[8] Re QT97/35-36 and Commissioner of Taxation [1997] AATA 339; (1997) 37 ATR 1036

[9] [2009] AATA 988; (2009) 114 ALD 289; 51 AAR 1; 78 ATR 221

[10] Re Becker and Minister for Immigration and Ethnic Affairs [1977] AATA 12; (1977) 1 ALD 158; 15 ALR 696; at 161; 699 quoted with approval in Wilson v Minister for Aboriginal and Torres Strait Islander Affairs [1996] HCA 18; (1996) 189 CLR 1 at 18 per Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ

[12] Witness v Marsden [2000] NSWCA 52; (2000) 49 NSWLR 429 at [51]; 440; Heydon JA with whom Mason P and Priestley JA agreed

[13] The power to issue the summons given by s 40A of the AAT Act includes a power to revoke, amend or vary them: Acts Interpretation Act 1901; s 33(3).

[14] (1987) 10 NSWLR 648

[15] (1987) 10 NSWLR 648 at 649-650

[16] [1984] 3 NSWLR 98

[17] [1984] 3 NSWLR 98 at 100-101; citations omitted. This summary was accepted by Beaumont J in Trade Practices Commission v Arnotts Limited (No 2) [1989] FCA 248; (1989) 88 ALR 90 at 102, Conti J in Mandic v Phillis [2005] FCA 1279; 225 ALR 760 at [33]; 771 to 772 and Flick J in Pharm-a-Care Laboratories Pty Ltd v Commonwealth of Australia [2009] FCA 1203 at [20].

[18] Re Trade Practices Commission v Kimberley Homes Pty Limited [1989] FCA 262; Hill J

[19] Hamilton v Oades [1989] HCA 21; (1989) 85 ALR 1 at 11; Deane and Gaudron JJ were in dissent from the majority but not on this point.

[20] [1989] FCA 248; (1989) 88 ALR 90

[21] [1989] FCA 248; (1989) 88 ALR 90 at 102

[22] [1997] FCA 1504 at [42] explaining the reference by Beaumont J in Trade Practices Commission v Arnotts Ltd and Others (No. 2) [1989] FCA 248; (1989) 88 ALR 90 at 103 to its being relevant to ask whether material had an apparent relevance to the issues in the principal proceedings and so an adjectival, as distinct from substantive, relevance established. Beaumont J had said: "The test of adjectival relevance is satisfied if the material has apparent relevance. In my opinion, the documentation called for here could possibly throw light on the issues in the main case. In my opinion, adjectival relevance is established."

[23] [1997] FCA 1504 at [42]

[24] [2008] FCA 285 at [37]- [38]. [2009] AATA 988; (2009) 114 ALD 289; 51 AAR 1; 78 ATR 221 at [231]- [232]; 362; 80; 296-297

[25] (1952) 72 WN(NSW) 250

[26] (1952) 72 WN(NSW) 250 at 254

[27] (1985) 40 SASR 489

[28] (1985) 40 SASR 489 at 493. [2009] AATA 988; (2009) 114 ALD 289; 51 AAR 1; 78 ATR 221 at [233]- [234]; 363; 81; 298

[29] [1978] 1 NSWLR 372

[30] Waind and Hill v National Employers' Mutual General Association Ltd [1978] NSWLR 372 at 381 per Moffit P

[31] [2008] FCA 285; (2008) 47 AAR 487; 101 ALD 68; Bennett J

[32] [2008] FCA 285; (2008) 47 AAR 487; 101 ALD 68 at [36]; 495; 75

[33] [2008] FCA 285; (2008) 47 AAR 487; 101 ALD 68 at [37]- [38]; 76; 495 (citations omitted)

[34] T documents; T229 at 1001-1004 and T241 at 1028-1033