Other Parties: Real Estate Institute of New South Wales

Decision: Pursuant to Rule 13(2)(b) of the Administrative Review Tribunal Rules 2024 (Cth), the Tribunal orders that the amount of Real Estate Institute of New South Wales reasonable expenses incurred in complying with the Tribunal summons issued on 15 April 2025 is $2,203.10 inclusive of GST.

..............................[SGND]..........................................

PRACTICE AND PROCEDURE - summons to produce documents - claim for allowance for complying with summons - reasonable expenses - applicable principles - determination of allowance

Administrative Review Tribunal Act 2024 (Cth) s 77(1)

Administrative Review Tribunal Rules 2024 (Cth) r 13, 14

Federal Court Rules 2011 (Cth) Schedule 3

Bestt and Military Rehabilitation and Compensation Commission [2017] AATA 1235

BPG Pty Ltd trading as MRT Training/ Entry Education and Australian Skills Quality Authority (Practice and Procedure) [2025] ARTA 1271

Carver and Comcare (Compensation) [2019] AATA 1534

Charlick Trading Pty Ltd v Australian National Railways Commission and Anor (1997) ALR 647

Frontier Assets Pty Ltd v Fishburn [2011] NSWSC 334

Re Smedley & Director-General of Social Security (1983) 5 ALD 387

Stekovic and Comcare (Compensation) [2021] AATA 223

1. The substantive application for review in this proceeding concerned a decision of the Respondent made on 11 December 2024 to cancel the Applicant's registration as a vocational education and training (VET) provider effective from 17 January 2025 (the Reviewable Decision). The Reviewable Decision was made under ss 36(2)(f) and 30 of the National Vocational Education and Training Regulator Act 2011(Cth).
2. On 7 March 2025, the Applicant requested the Administrative Review Tribunal (Tribunal) issue a summons to the Real Institute (NSW) (Summons Recipient) in respect of documents and correspondence that relate to, or mention the Applicant, for the period 1 January 2024 to March 2025
3. On 15 April 2025, the summons to produce was issued by the Tribunal (the Summons), returnable by 30 April 2025. Following discussions between the Applicant and the Summons Recipient, the return date was extended to 23 May 2025.
4. On 19 May 2025, the Summons Recipient filed an application with the Tribunal objecting to the Summons. In broad compass, the grounds of the objections stated were:
   • the scope of the Summons was so broad that documents with no relevance to the proceedings would be captured;
   • to the extent the Respondent relied upon documents, they would be disclosable by the Respondent;
   • the Summons does not serve a legitimate forensic purpose; and
   • documents within the scope of the Summons are capable of identifying individuals who provided information to ASQA on a confidential basis and their production would compromise that protection.
5. When there was no response from the Tribunal prior to 23 May 2025, the Summons Recipient provided the documents the subject of the Summons in its possession to the Adelaide Registry on a USB. There were approximately 500 pages of documents provided.
6. An interlocutory hearing was held for the purpose of determining the application to set aside the Summons. The Tribunal determined there was a legitimate forensic purpose and the material sought was relevant to the issues for determination in the proceedings. The application to set aside the Summons was refused.[1]
7. The decision did not dispose of all of the issues connected to the Summons. Before the inspection issue could be determined by the Tribunal, signed terms of agreement were provided to the Registry by the Applicant and the Respondent. On 15 September 2025, the Tribunal made orders pursuant to s 103 of the Administrative Review Tribunal Act 2024 (Cth), finalising the proceedings.
8. On 9 October 2025, the Summons Recipient wrote to the Applicant seeking 'reasonable conduct monies in compliance with the Summons'. Included with the letter were invoices outlining the legal expenses incurred by the Summons Recipient.
9. There was an exchange of correspondence between the parties in respect of the Summons Recipient's costs, but an agreement was unable to be reached.
10. On 20 November 2025, the Summons Recipient contacted the Registry requesting the Tribunal make an order that the 'Applicant pay REI NSW's costs incurred in complying with the Summons to Produce Documents, as agreed or assessed.'
11. The Tribunal made directions for the Summons Recipient and the Applicant to file any evidence and submissions in respect of the Summon's Recipient's application (Costs Application) made pursuant to section 77 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act). The directions also confirmed the issue would be determined without holding a hearing.
12. On 10 February 2026, the Summons Recipient filed a statement of Rebekah Kim Stenberg . Exhibited to the statement was the costs agreement between the Summons Recipient and their legal representative, invoices in respect of legal costs incurred, and correspondence with the Applicant in respect of the costs.
13. The Summons Recipient also filed written submissions in support of the Costs Application. They were brief and essentially sought to rely on the concept of 'reasonably incurred' as described by the Federal Court in Charlick Trading Pty Ltd v Australian National Railways Commission & Anor.[2] In their submission, all the work undertaken by the Summons Recipient's solicitors was directly relevant to compliance with the Summons and should be reimbursed on an indemnity basis.
14. On 27 February 2026, the Applicant filed a statement of Amanda Starkey. Exhibited to the statement was a number of documents filed as part of the Summons Recipient's application set aside the Summons and correspondence exchanged between the Applicant and the Summons Recipient.
15. The Applicant also filed an outline of submissions, in which they argued the Tribunal should make no order fixing the Summons Recipient's reasonable expenses as the claim has been improperly articulated and the lump sum claimed is extravagant and grossly disproportionate to the matter in issue. In the alternative, they say, the sum ought not be more than $500.
16. On 6 March 2026, the Summons Recipient filed further submissions in reply.
17. On 16 March 2026, the Tribunal sent an email to the parties in the following terms:

The Tribunal thanks the parties for the material provided in compliance with the Tribunal directions. > > In order to assist with the determination of the matter, the Tribunal seeks confirmation of the following information from the Summons Recipient: > > 1.The material produced under the summons was returned in September 2025. Unfortunately, a copy of the documents produced was not retained by the Tribunal. Can you please confirm the volume material provided (by reference to pages would be adequate) in compliance with the summons. > > 2.Can you please confirm the amount sought as the reasonable expenses in compliance with the summons. In this regard we observe the statement of Ms Sternburg refers to a figure circa $43,000 but the invoices total a much higher figure. > > 3.Can you please confirm the entries in the invoices which support the claim. > > 4.There does not seem to be any expenses sought in respect of any activities undertaken by an employee of the Summons Recipient in collating the material. If this is an expense sought, please quantity the figure and the underlying calculations. > > We also direct the application (sic) to Schedule 3 of the Federal Court Rules 2011 and the decision of Bestt and Military Rehabilitation and Compensation Commission [2017] AATA 1235 as relevant sources of information to inform the response. > > We respectfully request any response be provided by Friday 27 March 2026. If further time is required, please advise the Tribunal as a matter of priority.

18. On 19 March 2026, the Summons Recipient confirmed the amount sought was $43,000 and highlighted the line items in the invoices relevant to the claim. The Summons Recipient confirmed that expenses of an employee of the Summons Recipient were not sought as part of the application.
19. The Applicant, in a communication to the Tribunal on 19 March 2026, maintained its opposition to any order being made against it.

Entitlement to fees and allowances > > (1) A person required by this Act, another Act or an instrument made under an Act to give information or produce or give a document or thing to the Tribunal is to be paid, in accordance with the rules, any fees, and any allowances for expenses, prescribed by the rules for compliance with the requirement. > > A summons issued by the Tribunal to give evidence or produce documents under section 74 of the Act is such a requirement.

2. Rule 13(2)(b) of the Administrative Review Tribunal Rules 2024 (Rules) provides:

Allowances for compliance with summons > > (2) For the purposes of subsection 77(1) of the Act, the following allowances are prescribed: > > ... > > (b) for compliance with a summons under subsection 74(1) of the Act for a person to produce a document or thing to the Tribunal - the person's reasonable expenses in producing the document or thing.

3. Rule 14(5) provides that the Tribunal may, by order, determine the amount of fees or allowances to be paid where the person summoned and the party who requested the summons cannot agree on the amount of the fee or allowance.

1. Although not specifically identified by the parties, there is a question as to whether the Tribunal, having disposed of the main proceedings in September 2025, is functus officio and consequently without jurisdiction to deal with the subsequent application for an order under s 77(1) of the ART Act.
2. Ideally, the application would have been made before the proceedings concluded, so it may be dealt with as part of those proceedings. In this matter, however, the proceedings finalised prior to the determination of all the issues arising from the Summons, and that finalisation was outside of the control of the Summons Recipient. Notwithstanding this, I am satisfied the Tribunal did not become functus officio in relation to any ancillary matters upon the making of the order under s 103 of the ART Act and is able to deal with the present application. [3]
3. It is a generally accepted principle that a person who is not a party to the litigation, but who is required by a summons or subpoena to provide a document, should not ordinarily be left out of pocket by reason of the expense of compliance. However, the Tribunal is a creature of statute and operates in a no costs jurisdiction. Any power to award costs, expenses, disbursements or compensation must therefore be found in the applicable legislation, which in this case is s 77 of the ART and r 13 of the Rules.
4. The relevant legislative framework provides a limited basis for the recovery of any allowance and is relatively specific in that it refers to the person's reasonable expenses in producing the document or thing. The focus of the rule, therefore, is on the act of production itself. Not every expense associated with the existence of the summons will fall within the scope of the recoverable expenses. Rather, they must be sufficiently connected to the task of producing the document or thing required by the summons.
5. Examples of expenses that may be incurred by a person in producing a document or thing, include time spent searching, reviewing and collating documents; copying, scanning or other retrieval costs and staff time diverted from normal duties in order to undertake those tasks. It may also extend, in appropriate circumstances, to obtaining legal advice that is sufficiently connected to the act of compliance. For example, advice regarding the scope of summons, negotiations narrowing its terms or addressing issues such as confidentiality.[4]
6. Compliance costs in this context are to be distinguished from litigation costs. Litigation costs are those incurred in conducting or defending litigation, which are governed by ordinary costs rules. An application to set aside a summons or similar contested interlocutory disputes are properly characterised as litigation costs and not those incurred in producing the document or thing.[5]
7. Further, the r 13(2)(b) of the Rules only permits the recovery of reasonable expenses in producing the document or thing. The question of reasonableness must be an objective one having regard to the nature of the task required to comply with the summons. It is not sufficient that the expense was actually incurred by the person.
8. In considering reasonableness, relevant considerations may be the volume of material within the scope of the summons, difficulty in accessing or reviewing the material, the need to consider issues such as confidentiality, and whether the work undertaken was proportionate to the task required for production. Delegating the task does not, of itself, render the expense unreasonable. However, the expense claimed must still be reasonable in nature and proportionate to the task of producing the documents required by the summons.
9. Where the parties are unable to agree on the amount of reasonable expenses payable in respect of production, as is the case here, the Tribunal may determine the amount to be paid. In undertaking that assessment, it was the practice of the Administrative Appeals Tribunal (AAT) to have regard to Schedule 3 of the Federal Court Rules 2011 (Cth) (Federal Court Rules) as a guide to the quantification of reasonable expenses.[6]
10. In the recent matter of O'Callaghan and National Disability Insurance Agency[7] the Tribunal decided that in circumstances where the Administrative Review Tribunal legislative scheme does not suggest any different method or approach to the calculation of reasonable expenses, this practice remains applicable. I agree with and have therefore adopted the same approach.
11. The application of Schedule 3 of the Federal Court Rules does not expand the categories of recoverable expenses; it merely provides a mechanism for quantifying the expenses that are properly characterised as those relative to production. The Tribunal's role is therefore to determine the reasonable expenses of producing the documents, not to indemnify all the costs incurred in connection with the summons.
12. Bestt and Military Rehabilitation and Compensation Commission,[8] in relation to the equivalent rule in the AAT, established that the expenses allowed should not exceed the expenses actually incurred in complying. The expenses are to be understood as the actual expenses connected with production.
13. It is in this context that it is for the Summons Recipient to set out the quantum of the expenses it says were actually incurred, and on what basis that claim is reasonable. In the present matter, the Summons Recipient says it is entitled to circa $43,000 supported by highlighted entries in invoices provided. No attempt has been made to explain the exact nature of the all the tasks referred to in the invoices, how they are sufficiently connected to the production of the documents responsive to the Summons or on what basis the claim is said to be reasonable. Nor has any calculation been provided by reference to Schedule 3 of the Federal Court Rules. The application is in the nature of an indemnity costs claim rather than in respect of the limited category of expenses covered by the Rules.
14. The Summons Recipient delivered the material in compliance with the Summons on 23 May 2026. Any costs, expenses, or losses incurred after this point are not properly characterised as reasonable expenses in producing the document or thing. Rather, they relate to steps subsequent to production or litigation costs. They therefore fall outside the scope of recoverable expenses under s 77 of the ART Act and the associated Rules.
15. As to those expenses incurred prior to the documents being produced to the Tribunal, the claim of the Summons Recipient is not clearly particularised. Notwithstanding this, I reject the Applicant's submission that no order should be made in these circumstances. The Summons required the production of certain documents and it is self-evident that task would involve some time and expense. The Summons Recipient also engaged with the Applicant as to the scope of the summons and confidentiality issues.
16. The statutory scheme contemplates that a person should be compensated for the reasonable expenses in complying with a summons, a matter also explicitly acknowledged by the Applicant in the correspondence with the Summons Recipient. Whilst the form of the application is deficient in many respects, this should not, in isolation, be a bar to recovery. In my view it would be inherently unfair and inconsistent with the purpose of the rule to make no order where there is some evidence that expenses were incurred. The appropriate course is not the refuse the application but to limit any entitlement to those reasonable expenses established. On the evidence before the Tribunal there is evidence expenses were incurred in connection to compliance, such as correspondence regarding the scope of the Summons and advice in respect of confidentiality.
17. Accurately determining the reasonable expenses has been made more challenging by the limited detail provided in the invoices relied upon. The brief descriptions make it difficult to determine whether particular entries relate to the production of the document or other aspects of the proceedings, or whether apportionment is required.
18. The Tribunal has adopted a pragmatic approach and allowed expenses that are clearly identified as relating to production of documents but has done so on a conservative basis. This approach reflects the fact that the Summons Recipient bears onus of establishing the claim, the rule is compensatory in nature and is not intended to provide a full indemnity of every expense arising out of the summons process.
19. I have taken into account there was correspondence concerning the scope of the summons and efforts to narrow its terms, communications with the Tribunal, consideration of confidentiality issues arising from production and that approximately 500 pages of documents were produced electronically .
20. I am satisfied the reasonable expenses incurred by the Summons Recipient in producing the documents are:
    • For collation of 500 pages of documents (applying item 1.3 of Schedule 3 of the Federal Court Rules for 2 hours) - $280
    • Correspondence in connection with complying with the summons[9] (applying item 2.4 and 3.3 of Schedule 3 of the Federal Court Rules) - $1143.10
    • Advice on confidentiality issues (applying item 1.1 for 1 hour) - $780

1. Pursuant to Rule 13(2)(b) of the Administrative Review Tribunal Rules 2024 (Cth), the Tribunal orders that the amount of Real Estate Institute of New South Wales reasonable expenses incurred in complying with the Tribunal summons issued on 15 April 2025 is $2,203.10 inclusive of GST

[1] BPG Pty Ltd trading as MRT Training/ Entry Education and Australian Skills Quality Authority (Practice and Procedure) [2025] ARTA 1271

[2] [1997] FCA 674; [1997] 149 ALR 647 at 649 (17 - 33)

[3] Re Smedley & Director-General of Social Security (1983) 5 ALD 387 at [14]

[4] Charlick Trading Pty ltd v Australian national Railways Commission and Anor (1997) ALR 647

[5] Frontier Assets Pty Ltd v Fishburn [2011] NSWSC 334 at [40]

[6] See Bestt and Military Rehabilitation and Compensation Commission 2017] AATA 1235; applied in Carver and Comcare (Compensation) [2019] AATA 1534 and Stekovic and Comcare (Compensation) [2021] AATA 223

[7] (Practice and Procedure) [2026] ARTA 310

[8] [2017] AATA 1235

[9] Letter to the Applicant dated 21 May 2025 (approx. 400 word), letter from the Applicant dated 20 May 2025 (approximately 650 words) and an email to the Tribunal dated 10 May 2025 (approximately 560 words). Thes documents were exhibited to the statement of Mr Sharkey