Mouat and Telstra Corporation Limited [2011] AATA 267 (21 April 2011)
On 21 April 2011 the Administrative Appeals Tribunal in Melbourne handed down the above decision. The Tribunal found that when a person is summonsed to produce documents and the summons is directed only to their production and not to the person to give evidence, no allowance for expenses and fees to produce the documents is payable to such a person. The Tribunal found that although there are occasions when the cost occurred by a person in complying with the summons may be significant, Parliament has not chosen to provide for them for AAT proceedings and compliance with such a summons, though essential in enabling the Tribunal to undertake its duties, remains an unpaid tasks and part of the summonsed person’s duty to comply with the law.
Although a summons to produce documents does not mention costs fees or costs recovery the Tribunal noted that in some instances the person served with the summons may want to be reimbursed for their effort and time in locating and collating the material. Despite the fact that this task may be a large task requiring the person complying with the summons to check all documents against the description of the documents in the summons, there is no provision for reimbursement of any sort for those required to produce documents.
Relevant legislation
Section 40(1A) of the AAT Act provides that:
“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.”
Section 40(1B) provides that a summons may require production at a directions hearing rather than at a hearing of a proceeding before the Tribunal.
A person named in a summons to produce documents may produce documents at the Registry before the date specified in the summons and this will be regarded as compliance with the summons.
Section 61 of the AAT Act makes it clear that a person summonsed must comply with the summons. The section notes that:
“1. A person is guilty of an offence if:
(a) the person is given, as prescribed, a summons under this Act to appear as a witness before the Tribunal; and
(b) the person
(i) fails to attend as required by the summons or
(ii) fails to appear and report from day to day unless excused, or released from further attendance, by a member.
Penalty: 30 units or imprisonment for six months, or both.”
Section 67 of the AAT Act provides for payment of expenses and fees to a person summonsed. Section 67 states that payment of fees will be in accordance with the regulations. Regulation 16 of the Regulations states that:
“A person summonsed to appear as a witness before the Tribunal shall be paid such fees and allowances for expenses in respect of his attendance in accordance with schedule 2, as determined by the Tribunal or by a presidential member”.
Consistently with regulation 16, schedule 2 sets out amounts that must be paid to a person summoned to appear as a witness.
The Tribunal then turned their attention to whether a person summoned to produce books, documents or things is a witness. The Tribunal found that a person who is summoned to produce books, documents or things for the purposes of the hearing of a proceeding is not summonsed to given evidence for the purpose of the hearing of the proceedings. Any evidence that the person gives will be directed to and limited to the obligations imposed upon that person by the summons. The Tribunal Member came to the conclusion that section 40(1A) of the AAT Act draws a clear distinction between a summons requiring a person to give evidence for the purposes of the hearing of a proceeding and a summons requiring a person to produce books, documents or things.
For further information, please contact:
F + 61 8 9265 6099
Naomi Adams | Lawyer
T +61 8 9265 6015
F + 61 8 9265 6099
