Civil and Administrative Tribunal New South Wales Medium Neutral Citation: MPJEL Care Pty Ltd v NSW Department of Industry (Vocational Training Review Panel) [2016] NSWCATAD 59 Hearing dates: 2 February 2016 Date of orders: 01 April 2016 Decision date: 01 April 2016 Jurisdiction: Administrative and Equal Opportunity Division Before: Hennessy LCM, Deputy President Decision: The applicants summons dated 14 December 2015 to the respondent to produce documents is set aside. Catchwords: PRACTICE AND PROCEDURE – summons to produce documents – whether legitimate forensic purpose for summonsing handwritten notes made by a member of the Vocational Training Review Panel during a hearing of a complaint – nature of an external appeal Legislation Cited: Apprenticeship and Traineeship Act 2001 (NSW), ss 39, 44 , 46, 47, 51(1)(c), 53, 55 Civil and Administrative Tribunal Act 2013 (NSW), ss 29(2)(a), 38, 48, 79 Cases Cited: A v Z (2007) 212 FLR 255 Becwell Legal Services Pty Ltd v McMaster [2011] FCA 1501 Dare v Dietrich [1979] FCA 47 Portal Software v Bodsworth [2005] NSWSC 1115 Ryano Pty Ltd v New South Wales Department of Education and Training [2009] NSWIRComm 180 Category: Procedural and other rulings Parties: MPJEL Care Pty Ltd (1st Applicant) Synthia Dee Restar (2nd Applicant) NSW Department of Industry (Vocational Training Review Panel) (Respondent) Representation: Counsel: L Doust (Applicants) Solicitors: McArdle Legal (Applicants) Henry Davis York (Respondent) File Number(s): 1510770 Publication restriction: Nil REASONS FOR DECISION Overview 1. MPJEL Care Pty Ltd and Ms Restar (the applicants) provide traineeships to students in the area of aged care, business and child care services. Ms Restar is the sole director and shareholder of MPJEL Care Pty Ltd. The issue in these proceedings is whether I should set aside a summons that the applicants have requested for the handwritten notes made by Mr Spierewka, a member of the Vocational Training Review Panel at a hearing on 8 December 2015. 2. The Registrar has power to issue a summons and the Tribunal has power to set it aside: Civil and Administrative Tribunal Act 2013 (NSW), s 48; s 29(2)(a); and s 38. 3. My understanding of the applicants' case is that there are two main bases on which the summons could legitimately be issued. The first is to clarify whether or not the Review Panel made a final decision as to whether the applicants were prohibited employers at the hearing on 8 December 2016 and the second is that they contain a record of Ms Retstar's evidence and there is no transcript or other record of that evidence. 4. I have decided to set aside that summons because the notes have no "apparent relevance" to the issues in dispute. Hearing before the Review Panel 1. When conducting a hearing, the Review Panel is not bound by the rules of evidence and may inform itself on any matter in such manner as it thinks fit: Apprenticeship and Traineeship Act 2001 (NSW), s 44. Unless a party is a corporation or the Crown, consent must be granted before that party can be represented by a lawyer: Apprenticeship and Traineeship Act. The presiding member of the Review Panel may require a person to attend a hearing for the purpose of giving evidence, answering questions reasonably related to the hearing and producing relevant documents: Apprenticeship and Traineeship Act, s 46, 47. 2. The Commissioner must give notice of the Review Panel's determination to each of the parties to the hearing: s 51(5). There is no statutory requirement for the Review Panel to provide reasons for its determination. 3. The purpose of the hearing before the Review Panel was to determine a complaint against MPJEL and Ms Restar made by an industry training officer under s 39 of the Apprenticeship and Traineeship Act 2001 (NSW). The complaint was first listed for hearing on 16 November 2015 before the Review Panel but was adjourned part heard because the Review Panel required further information: Apprenticeship and Traineeship Act, s 44. The handwritten notes were made by a member of the Review Panel at the adjourned hearing on 8 December 2015. 4. The Review Panel cancelled all 351 traineeship arrangements administered by the applicants and gave notice of its intention to declare the applicants to be "prohibited employers": Apprenticeship and Traineeship Act, s 51(1)(c) and s 53(1)(a). An order declaring an employer to be a prohibited employer may not be made unless the Review Panel has given notice to the employer of its intention to make such an order and has given the employer at least 21 days within which to make submissions to the review panel: s 53(2). 5. The parties disagree as to whether the Review Panel gave its final decision declaring them to be prohibited employers orally on 8 December 2015 or whether the decision was given for the first time in writing at a later date. At a hearing of an interlocutory issue before the Tribunal on 11 December 2015, Mr Spierewka gave sworn evidence that no final decision had been made in relation to whether the applicants would be declared prohibited employers on 8 December 2015. The Review Panel's undated written reasons for the determination have been provided to the Tribunal. Those reasons give notice of an intention to make a Prohibited Employer Order and give the applicants 21 days to make submissions. Nature of appeal 1. An appeal under s 55 of the Apprenticeship and Traineeship Act is an "external appeal" for the purposes of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). Such an appeal is to be dealt with by way of a "new hearing" and "fresh evidence or fresh information" may be given on the appeal: Apprenticeship and Traineeship Act s 55(2). The powers of the Tribunal when determining an external appeal are listed in s 79 of the NCAT Act and include an order that the appeal be allowed or dismissed. 2. The parties provided submissions in these proceedings as to the nature of an external appeal. I note that in proceedings governed by similar legislative provisions before the Industrial Relations Commission of New South Wales, the proceedings were characterised as a hearing de novo: Ryano Pty Ltd v New South Wales Department of Education and Training [2009] NSWIRComm 180 at [53]. If that conclusion applies to proceedings in this Tribunal, there is no requirement for the Tribunal to find error with the Review Panel's decision. Rather, the Tribunal must "pronounce anew on the rights of the parties" as disclosed by the evidence: Dare v Dietrich [1979] FCA 47 at 32-33, Deane J. It will not always be desirable for parties to present their evidence again to the Tribunal but fresh evidence and fresh information may be given. Principles for issuing a summons 1. The summons requests: Handwritten notes made by John Spirewka on 8 December 2015 at a hearing of the Vocational Training Review Panel held to determine a complaint against MPJEL Care Pty Ltd and Ms Restar. 1. A summons must only be issued for a legitimate forensic purpose. It is an abuse of process to issue a summons in relation to documents which have no "apparent relevance" to the issues in dispute: Portal Software v Bodsworth [2005] NSWSC 1115 Brereton J at [22] and [23]; Becwell Legal Services Pty Ltd v McMaster [2011] FCA 1501 at [26]. The onus is on the party attempting to procure the material to demonstrate a legitimate forensic purpose by reference to the issues as disclosed in the pleadings: Becwell Legal Services Pty Ltd v McMaster [2011] FCA 1501 at [27]. The question is not whether the documents would be admissible in evidence or will "definitely advance the case of the parties" issuing the summons: Portal Software v Bodsworth [2005] NSWSC 1115 Brereton J at [25]. The question is whether a party can show that it is "on the cards" that the document will assist that party's case: A v Z (2007) 212 FLR 255 at 257-260 Brereton J. Application of principles to facts of this case Was a final decision made on 8 December 2015? 1. The applicants submit that the hand written notes made by a member of the Review Panel at the hearing on 8 December 2015 are a contemporaneous record of an oral decision given on that day. They are "clearly relevant" to the decision made on that date to cancel the traineeships administered by the applicants. 2. It is irrelevant to any issue on appeal whether the Review Panel made a decision under s 53 of the Apprenticeship and Traineeship Act on 8 December 2015 or at a later date. The Tribunal's task is to "pronounce anew on the rights of the parties" not to find error in the Review Panel's decision. Are the notes a relevant record of Ms Restar's evidence? 1. Additionally, the applicants noted that it is the Tribunal's task to review the material that was before the Review Panel and that material includes the oral evidence given on 8 December 2015 as recorded in the notes. 2. I accept that the handwritten notes may contain evidence of what Ms Restar told the Review Panel at the hearing. There was no transcript of that evidence but the applicants were also present. The Review Panel's understanding of the evidence was set out in the written determination. If Ms Restar contends that she did not give the evidence the Review Panel said she gave, she has the opportunity in these proceedings to dispute that version and provide fresh evidence and fresh information to the Tribunal. 3. The Tribunal is not bound to consider only the evidence Ms Restar gave to the Review Panel or to determine the correctness of the Review Panel's version of her evidence. Similarly, there is no requirement for the Tribunal to find error with the Review Panel's decision on the basis that the reasons were inadequate. 4. The handwritten notes have no legitimate forensic purpose. It is not "on the cards" that the document will assist that party's case. The Tribunal is conducting a hearing de novo, not identifying factual or legal error with the Review Panel's determination. Order 1. The applicants summons dated 14 December 2015 to the respondent to produce documents is set aside. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 April 2016