Summons to Produce Documents - directed to third party - relevance - terms - summons too wide - legitimate forensic purpose not sufficiently identified - summons set aside

Dorajay Pty Limited v Aristocrat Leisure Limited [2005] FCA 588

Waind v Hill and National Employers' Mutual General Association Ltd (1978) 1 NSWLR 372

re Perpetual Trustee Company (Canberra) Limited and Commissioner for ACT Revenue 1993 29 ALD 817

Bailey v Beagle Management Pty Ltd [2001] FCA 60; (2001) 105 FCR 136

The Commissioner for Railways v Small (1938) 38 SR NSW 564

Fried v NAB (2000) 175 ALR 195

In the Marriage of Epstein [1993] FamCA 45; (1993) 110 FLR 133

Eighth Dictum Pty Ltd v CoT (unreported, Supreme Court, Vic, Hedigan J, 1991)

Trade Practices Commission v Arnotts Ltd 1989 88 ALR 90

Cosco Holdings Pty Ltd v Commissioner of Taxation 1997 FCA 1504

The applicant has appealed a decision made by a Delegate of the Safety, Rehabilitation and Compensation Commission rejecting his claim for compensation for "operational stress". The decision was affirmed by a Delegate of Comcare on 24 July 2001. The appeal is listed for hearing before the Administrative Appeals Tribunal for a period of eight days commencing 6 March 2006.

On 30 November 2005 a summons was issued at the request of the applicant directed to Chief of Army, Lieutenant General P F Leahy AO to produce the following "books, documents or things" the service file of Michael Damien Engel, the service file of Barry Andrew Hampson, ST forms being vehicle documentation for general maintenance vehicles used by vehicle mechanics attached to the 26th Transport Workshop in 9 Forward Support Battalion based in Dili, East Timor for the period 1 January 2000 to 30 June 2000.

At the return of the Summons on 31 January 2006 Mr David Wilson appeared on behalf of the Chief of Army and informed the Tribunal that firstly, a search had been undertaken for the ST2 forms referred to in the summons and none had been discovered therefore they were not available for production and secondly, that his client objects to the request to produce the service files of Michael Damien Engel and Barry Andrew Hampson. It was Mr Wilson's application that the summons be set aside or alternatively in the event that the Tribunal did not accede to this application, that inspection of the requested documents be refused.

In support Mr Wilson produced a copy of a letter addressed by B A Hampson dated 30 January 2006 directed to the Tribunal which inter alia stated that he objected:

"most strongly to my service file being inspected by Mr Bird or his solicitor. I (sic) my opinion this is an invasion of my privacy and the confidentiality between the Department of Defence and myself. I agree with Defence Legal that the inspection of my service file is an abuse of process.

I am still a serving commissioned officer, a captain in the army, (the Reserves) my service file contains very personal information in relation to myself, my family in particular my youngest son (his disability/condition) and my current home address and telephone numbers.

As you can understand as a senior investigator and a senior analyst for the Department of Veterans' Affairs, I do not want any part of my physical service record, family information and details in the public domain, whatsoever".

Also produced was a copy of an e-mail from Mr Mick Engel directed to Naomi Richards, Government Solicitor, stating that he did not give permission for anyone to access his army personnel files believing it to be an invasion of his privacy and claiming that his personnel files had no relevance to the case. Mr Engel further stated that he was "concerned for the safety and well-being of myself and my family should information from my files be released".

The respondent has filed and served proofs of evidence of both Michael Damien Engel and Barry Andrew Hampson and presumably intends to call them as witnesses at the hearing.

Detailed submissions were made by Mr Wilson in support of his application to have the summons set aside, which submissions were supported by Mr Brian Morgan who appeared on behalf of the respondent. Mr Roland Browne appeared for the applicant and opposed the application to set aside the summons contending that the Tribunal must examine all of the circumstances of the case before determining an application to set aside a summons and that the material sought was relevant to the issues and should be brought before the Tribunal.

It is relevant that the summons is issued to a third party and relates to service file of persons who are not parties to the proceedings. The Federal Court in Dorajay Pty Limited v Aristocrat Leisure Limited [2005] FCA 588 referred to the three steps identified by Moffit P in Waind v Hill and National Employers' Mutual General Association Ltd (1978) 1 NSWLR 372 in the procedure of having a third party putting documents to the Court in response to a subpoena duces tecum and their subsequent use. Stone J stated that the principles are relevant to the current case where the subpoenas had been "served on persons who, technically at least, are strangers to the proceedings". The three steps were described by Moffit P at page 381 as:

"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";

Whilst the Administrative Appeals Tribunal Act 1975 does not expressly include provisions for the setting aside of a subpoena, the Tribunal is satisfied of its jurisdiction to do so. The Tribunal adopts the reasoning of Deputy President Barnett in re Taxation Appeal WT95/13-14 who found at page 507 that the power in section 40(1A) "includes a power to repeal, rescind, revoke, amend or vary a summons issued". Deputy President Barnett stated that he had been assisted by the comments of President Curtis sitting in the Administrative Appeals Tribunal of the Australian Capital Territory in re Perpetual Trustee Company (Canberra) Limited and Commissioner for ACT Revenue 1993 29 ALD 817 in so concluding.

It is at the first step referred to by Moffit P above that the addressee of the summons, namely the Chief of Army and the respondent seek to have this subpoena set aside. It is contended that the subpoena as issued constitutes an abuse of process on several bases including that it requires the production of too wide a class of documents and the Tribunal could not be satisfied that the documents sought would be relevant to the current proceedings; the applicant has failed to identify a legitimate forensic purpose for seeking access to the documents; the purpose for seeking the documents is to impugn the credit of potential witnesses, production of the documents potentially violates the privacy and confidentiality of third parties and the summons that has issued can only be for the purpose for fishing for information that may assist the applicant's case; as such, it is oppressive and ought to be set aside.

The applicant's solicitor was asked by the solicitor for the Chief of Army to "advise the legitimate forensic purpose for seeking production of the service files of Mr Engel and Mr Hampson".

Mr Browne responded to the letter advising as follows:

"The service files of both Engel and Hampson likely contain material relevant to the hearing of this application, and in particular I refer to the following;

• Training and experience in motor vehicle damage and behaviour in the case of Hampson;

• Post East Timor briefing, in the case of Engel;

• Training in the use of weapons, and in particular the FTEYR;

• End of tour report, in case of Engel;

• In the case of Hampson, his military history, including which Units he was attached to prior to 9 FSB, and the extent of his experience as a military policeman"

If the summons was a subpoena issued out of the Federal Court, the authorities would require a consideration of all of the circumstances of this matter. These include the fact that both Hampson and Engel dispute the applicant's version of various events and, secondly that MRCC assert that there is no evidence to corroborate Mr Bird's claim"

.

Mr Browne submitted that a critical issue for the applicant to establish is the incident in April 2000 when his client's vehicle struck a child whilst driving as part of a convoy to an airport at Macau. It is the applicant's contention that Michael Engel accompanied him on this journey. The latest proof of evidence received from Mr Engel states that no such incident happened when he was with the applicant.

A further incident of relevance to the applicant's case concerns the pointing of a rifle, again which is disputed by Mr Engel as having involved the applicant.

Mr Browne was unable to identify which documents in the service files would be relevant, or whether those identified in his response letter even exist. From Mr Browne's past experience, it is his understanding that such documents would exist and would be relevant to the applicant's case.

Mr Browne disputed that the subpoena constitutes a "fishing exercise" and referred to the Federal Court decision in Bailey v Beagle Management Pty Ltd [2001] FCA 60; (2001) 105 FCR 136 where the Court referred to the decision in The Commissioner for Railways v Small (1938) 38 SR NSW 564 being authority for the proposition:

"that where a subpoena or notice to serve or obtain evidence to support a party's case then the subpoena with a notice to produce will not be regarded as "fishing" or as an abuse of process or vexatious and will not be set aside. That will only occur where a party is in fact seeking to discover whether the party has a case at all".

Whilst Mr Browne may be correct in asserting that the summons was not issued for this purpose, he nevertheless cannot identify which documents, if any, in those sought to be produced could potentially support his client's case.

It was submitted by the respondent that one of the purposes for seeking the documents is to impugn the credit of the witnesses and cast doubt on the evidence they propose to give at the hearing. It was submitted by Mr Wilson that this is not a legitimate purpose and that the appropriate means of testing the witness' evidence is by cross-examination. Mr. Browne conceded that the material sought could conceivably test the credit of the witnesses, but would not "solve the issue of credit" of the witnesses.

The Tribunal was referred to the decision of Fried v NAB (2000) 175 ALR 195 where Weinberg J cited a passage from In the Marriage of Epstein [1993] FamCA 45; (1993) 110 FLR 133 in relation to the issue as to whether a subpoena may properly issue solely for the purpose of impeaching the credit of the witness.

At (29) Weinberg J stated that:

"It is not appropriate ... for a court to permit a subpoena to stand which does little more than trawl documents which may be used to impugn the credit of a particular witness. This is particularly so when the documents sought have nothing to do with any of the issues in dispute in the proceeding. The court must be alert to ensure that any subpoena which is issued has a legitimate forensic purpose. That purpose must be identifiable, and likely to facilitate the conduct of the proceeding, not merely to oppress a party or witness."

Mr Browne was unable to identify a particular document or class of document that would potentially support any of the identified issues in the proceedings. Those factors listed in Mr Browne's letter suggest to the Tribunal that one of the purposes for the summons is to seek material which could cast doubt on the witness statements contained in the proofs of evidence, rather than supporting any of the issues identified by the applicant as relevant to the proceedings. The Tribunal agrees that the appropriate methodology for testing the evidence of third party witnesses is by cross-examination at the hearing.

The applicant seeks the production of the entire service files of Mr Engel and Mr Hampson and declined to narrow its terms by identifying any particular document sought to be produced. Of relevance is the fact that the summons has been issued to a stranger to the proceedings who has possession of the service files of potential witnesses for the respondent.

The Tribunal must also consider the fact that both Mr Engel and Mr Hampson have objected to the release of any part of their service records on the basis of confidentiality and invasion of privacy. The Tribunal must respect such rights unless it is otherwise persuaded and the interests of justice require the release of the documents.

In this respect the Tribunal adopts the reasoning of Stone J in the Dorajay decision (supra) where he stated:

"... I would set aside the subpoenas to the extent that they referred to those documents on the ground that such relevance as they may have is disproportional to any benefit that their production might have for the respondent".

The Tribunal must accordingly be satisfied that the documents sought to be produced have sufficient relevance to the issues to be determined at the hearing. As observed by Treyvaud J in In the Marriage of Epstein (supra):

"As to relevance, the law is that production of a document on subpoena by a stranger is only required if the document is sufficiently relevant to the action in the sense that it is likely to add, in the end, in some way or other to the relevant issues in the case".

Treyvaud J quoted a passage from _Eighth Dictum Pty Ltd v CoT (_unreported, Supreme Court, Vic, Hedigan J, 1991) which included the following:

"... The law clearly is that a subpoena to produce documents directed to a person not a party may be set aside as oppressive or an abuse of process in the documents, the production of which is required, are not sufficiently relevant to any question in the proceeding ..."

Beaumont J observed in Trade Practices Commission v Arnotts Ltd 1989 88 ALR 90 at page 102 to 103:

"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. ... Without restricting this enquiry, it is convenient to address the present application in the first instance by reference to two questions:

(1) Does the material sought have an apparent relevance to the issues in the principal proceedings, ie is adjectival, as distinct from substantive, relevance established? Does the subpoena have a legitimate forensic purpose to this extent? This involves a consideration of the matter from the standpoint of Arnotts.

(2). Is the subpoena seriously and unfairly burdensome or prejudicial? This is to look at the matter from the point of view of Mattingly.

...

The test of adjectival relevance is satisfied if the material has apparent relevance. In my opinion, the documentation called for here could possibly throw some light on the issues in the main case. In my opinion, adjectival relevance is established".

It has been said that the test is whether the material is reasonably likely to add to the relevant evidence in the case. Spender J in Cosco Holdings Pty Ltd v Commissioner of Taxation 1997 FCA 1504, having quoted Beaumont's test of adjectival relevance commented:

"Notwithstanding the use of the word "possibly" in this paragraph, in my opinion, that word is not used in any speculative sense. I take his Honour's conclusion expressed in that paragraph as an acquiescence to the correctness of the submission that the material sought could reasonably be expected to throw light on some of the issues in the principal proceedings. It is not a question of looking at the documents to see if the documents might permit a case to be made".

In the current case whilst there is a possibility that some of the documents amongst the service records could possibly throw some light on the issues to be determined at the hearing, the applicant has failed to persuade the Tribunal that it is reasonably likely that there are documents contained within the service files of Mr Engel and Mr Hampson that "could reasonably be expected to throw light on some of the issues in the principal proceedings". Mr Browne having been unable to identify whether any particular documents exist amongst the service files, the Tribunal concludes that the likelihood is more speculative than reasonable. As CJ Gordon in Small (supra) stated at 575 a subpoena "will be set aside as abusive if great numbers of documents are called for and appears that they are not sufficiently relevant". Further at page 573 "a subpoena to produce documents must specify with reasonable particularly the documents to be produced". No such attempt has been made in the current case and Mr Browne has been unable to identify with any particularity what documents amongst the service files could reasonably be likely to be relevant to the issues in the case.

For the above reasons, the Tribunal determines that having regard to the private rights of the third parties involved, the breadth of the documents sought to be produced and the lack of apparent relevance to the issues in the proceedings, that the summons be set aside.

I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Part-Time Member)

Signed: R Hunt (Administrative Assistant)

Date/s of Hearing 31 January 2006

Date of Decision 9 February 2006

Counsel for the Applicant Mr Roland Browne

Solicitor for the Applicant Fitzgerald & Browne

Counsel for the Respondent Mr Brian Morgan

Solicitor for the Respondent Australian Government Solicitor