Decision: The application of the Summons Recipient to set aside the summons is refused.

On or before 11 August 2025, the parties may provide to the Tribunal and serve on the other parties any submissions directed to the inspection of the summons material.

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SUMMONS TO PRODUCE DOCUMENTS - application to set aside summons - documents held by third party - legitimate forensic purpose - relevance - application dismissed

National Vocational Education and Training Regulator Act 2011(Cth).

Comcare v Maganga [2008] FCA 285

Cosco Holdings Pty Ltd v Federal Commissioner of Taxation [1997] FCA 1504

General Merchandise and Apparel Group Pty Ltd and CEO, Customs [2009] AATA 988; (2009) 114 ALD 289

Jones and National Disability Insurance Agency [2024] AATA 1142

Marnotta Pty Ltd and Secretary, Department of Health and Ageing [2004] AATA 800

Re Pantazopoulos and Military Rehabilitation and Compensation Commission

Tretheway and National Disability Insurance Agency (2025) ARTA 88

World Brand Importers Pty Ltd and Commissioner of Taxation (Practice and procedure) [2025] ARTA 95

Explanatory Memorandum, Administrative Review Tribunal Bill 2023 (Cth)

1. The substantive application for review in this proceeding is concerned with the 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 sections 36(2)(f) and 30 of the National Vocational Education and Training Regulator Act 2011(Cth).
2. The Reviewable Decision was based on findings of the Chief Executive Officer of the Respondent in their role as the regulator, that the Applicant was not complying with its responsibilities under the Standards for Registered Training Organisations 2015 (Cth) and therefore did not meet the conditions of registration of a VET provider. The CEO determined that cancellation of the Applicant's registration was the appropriate sanction in the circumstances.
3. On 7 March 2024, the Applicant requested the Tribunal issue a summons to the Real Estate Institute (VIC) (REI (VIC)). An interlocutory hearing was held to better understand the relevance of the material to be produced under the summons. In anticipation of that interlocutory hearing, Mr Matthew Trounce (Mr Trounce), the Chief Executive Officer of the Applicant, provided a brief statement directed to that issue. Submissions were made by the Applicant and the Respondent who relevantly did not oppose the request.
4. As the interlocutory hearing was coming to a conclusion, the Tribunal was directed by the Applicant to the request to issue a summons to the Summons Recipient. Although not before the Member at the time, the Applicant agreed to provide a copy to the Tribunal for consideration, and that it would be appropriate for the Tribunal to have regard to the same evidence and submissions as those ventilated in the interlocutory hearing in respect of the summons directed to REI (VIC).
5. On 4 April 2025, the Applicant requested the Tribunal issue a summons to the Real Estate Institute (NSW) (REI (NSW) or the Summons Recipient) in respect of documents and correspondence that relate to, or mention the Applicant, for the period 1 January 2024 to 6 March 2025
6. 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.
7. 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.
8. 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. At that time, the Summons Recipient objected to inspection until determination of the set aside application.
9. An interlocutory hearing was held for the purpose of determining the application to set aside the Summons. In addition to the submissions filed on behalf of the Applicant and Summons Recipient, the Tribunal also had the benefit of a statement provided by Amanda Starkey, a paralegal employed by the Applicant's solicitors, the Tribunal documents and the statement of Mr Trounce.
10. The Summons captures documents in the possession of the Summons Recipient that relate to or mention the Applicant for a particular period. The Summons also covers documents which relate to the Applicant and were provided to the Respondent or other regulatory agencies for the same period.
11. The Summons Recipient's fundamental objection to the production of the documents under the Summons is that there is no apparent legitimate forensic purpose. Further, the Applicant has deliberately declined to provide them with any evidence or other material so that they may be satisfied the Summons has the requisite relevance.
12. The summons provisions are found in sections 74 and 116 of the Administrative Review Act 2024 (Cth) (the ART Act), which took effect in October 2024. Prior to this, the Administrative Appeals Tribunal (AAT) considered matters arising in respect to a summons under its statutory power consistent with the principles enunciated by Courts as applicable to subpoenas. It is observed that changes to the wording adopted in the ART Act were to reflect modern drafting practices only.[1]
13. The approach to be taken by this Tribunal in relation to matters arising in respect to a summons is therefore unchanged.[2] Although not explicitly stated in the ART Act, it was generally accepted in respect of the AAT that the Tribunal did have the power to set aside or vary a summons once issued. The Tribunal adopts this position in the present case.
14. There are a range of reasons why the Tribunal may set aside or vary a summons once issued, including where the documents identified have no apparent relevance or forensic purpose. As Deputy President Forgie explained in Re Pantazopoulos and Military Rehabilitation and Compensation Commission[3]:

Underpinning the decision as to whether or not a summons should be issued is the question whether the documents or evidence identified in the summons may be relevant to the issues to be resolved by the Tribunal in reviewing the decision that is the subject of an application for review.

15. In the matter of Jones and National Disability Insurance Agency[4], Deputy President Mischin set out the relevant principles to be applied by the Tribunal[5]:

'15. 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. or ... that the material sought could reasonably be expected to throw light on some of the issues in the principal proceedings. > > 16. There should be a legitimate forensic purpose in seeking the relevant documents which 'must be identifiable, and likely to facilitate the conduct of the proceeding, not merely to oppress a party or witness'. Such legitimate forensic purpose is not limited to admission into evidence, but use in cross-examination, and includes cross-examination going to the question of credit of a witness. > > 17. However, a summons should not be issued if it serves an improper purpose, such as a "fishing expedition".' > > (the citations have been omitted)

16. Deputy President Forgie also observed in General Merchandise & Apparel Group Pty Ltd and Chief Executor of Customs[6] that the bar to meeting relevance is not particularly high. All that is required is that the documents summonsed could throw some light on the issues in the principal proceedings. It is not necessary to conclude the document might actually permit the case to be made.
17. In other words, a summons can be issued for documents when there is a legitimate forensic purpose in doing so, but that purpose does not necessarily have to mean that the documents will find their way into evidence in the proceedings.
18. In respect of the production issue, the Summons Recipient's argument is that because they have been unable to identify the relevance or forensic purpose of the Summons that it should be set aside. They also argue that to the extent they do have documents which have been provided to ASQA, those documents are discoverable by the Respondent and not the Summons Recipient.
19. Although the Tribunal accepts the Summons Recipient may not be immediately satisfied as to the forensic purpose or relevance of the documents, they are a stranger to the proceedings. Ultimately it is a question for the Tribunal as to whether this threshold is met.
20. The forensic purpose of the summons was provided as part of the initial request for the Summons by the Applicant, the statement of Mr Trounce and in the Applicant's submissions which directed the Tribunal to specific parts of the Tribunal documents and the Respondent's reasons for decision.
21. Those documents indicate that as part of the broader compliance activity, the Respondent had discussions with, and was provided information from, third parties including the Summons Recipient. The Respondent, in the reasons for decision, refers to external complaints which precipitated the compliance activity, and that in making its decision it had regard to information it held about the Applicant in addition to material provided as part of the audit activity. The Tribunal understands the Applicant's case in part questions the accuracy of the information, the purpose of the disclosures and the influence it had on the regulatory action and decision of the Respondent.
22. Although the Respondent did not concede the matters deposed to in Mr Trounce's affidavit, ASQA did not seek to argue the Summons has no forensic purpose or the material sought is irrelevant to the proceedings. The Respondent acknowledged the concept relevance is to be broadly interpreted in the summons context. As the decision maker in the review, they are well placed to speak to the relevance of the material to the decision under review.
23. The case law takes an expansive view of relevance and requires that the records sought need only have apparent relevance, as distinct from the higher requirement for actual relevance. The ART Act provides the Tribunal a wide discretion as to the procedure to be adopted in reviewing a decision to ensure each party is given a reasonable opportunity to present their case, which includes the opportunity to adduce their own evidence and the opportunity to test the decision maker's position. Given the Applicant's reason for seeking the material and the Respondent is not a contradictor in this application, the Tribunal finds the summons has been issued for a legitimate forensic purpose, and the material sought is apparently relevant to the issues for determination in these proceedings and should not be set aside on that basis.
24. In respect of the inspection issue, the Summons Recipient raised a legitimate concern in relation of the protection of confidential sources. The parties agreed this issue could be managed by allowing the Respondent the opportunity to inspect the material first and taking steps as appropriate should protection be required. The Tribunal agrees this is a sensible approach.
25. The Tribunal notes that the Summons Recipient requested a further opportunity to provide further submissions on the issue of inspection should the Tribunal refuse the set aside application. The Tribunal will allow a short period for all the parties to do so.

[2] See for example Tretheway and National Disability Insurance Agency (2025) ARTA 88 at [12]; World Brand Importers Pty Ltd and Commissioner of Taxation (Practice and procedure) [2025] ARTA 95 at [12]

[3] [2011] AATA 101; (2011) 121 ALD 148

[4] [2024] AATA 1142 at [14]

[5] Although the citations have been omitted, the Deputy President relied upon the cases of Comcare v Maganga [2008] FCA 285 at [32],[33],[34],[36], [37] and [38], Cosco Holdings Pty Ltd v Federal Commissioner of Taxation [1997] FCA 1504 at [11] and Marnotta Pty Ltd and Secretary, Department of Health and Ageing [2004] AATA 800 at [42].

[6] [2009] AATA 988; (2009) 114 ALD 289