Under the new Administrative Appeals Tribunal Regulation 2015, (the Regulation), which came into effect on 1 July 2015, there is a welcome change from the previous costly requirement that a summons had to be personally served. Summons to produce or give evidence in the Administrative Appeals Tribunal can now be served by mail, pre-paid post or, if agreed to by the person named in the summons, by fax or email under Part 4 of the new Regulation.
Changes to Regulations 13(6) and 14(1) also provide that the reasonable expenses of producing documents under summons must be paid by the party who requested the summons. Before this change, there was no provision to entitle a person or organisation to be paid any fees or allowances for responding to a summons to produce documents—only a person summoned to give evidence was entitled to be paid their reasonable expenses of complying.
There is no guidance in the Regulation, beyond what is said in Regulation 13(6), about what might constitute a "person's reasonable expenses of producing" in response to a summons to produce.
Regulation 13(7) provides that the named person "may apply to the Tribunal for a determination of the amount of fees or allowances payable under subsection (3), (4) or (6) in relation to compliance with the summons, if the person and [the party who requested the summons] cannot agree on the amount".
The changes in the Regulation are reflected in the Tribunal's new "Notice to the party requesting the summons to produce documents" (the Notice), which the Tribunal attaches to a sealed summons when it is returned to the party who requested it and which is sent to the person (or organisation) when they are being served. Before 1 July 2015, different versions of the Notice were supplied by the Tribunal, but not always with every sealed summons.
The Notice specifies that the normal practice is that the party requesting the summons has to pay the person or organisation producing documents reasonable expenses of complying with the summons, such as copying and delivery costs. The expenses must be paid when the summons is given or within a reasonable time before the day the documents must be produced under Regulation 15.
However, a person summoned to produce is not excused from complying just because they consider an amount paid for reasonable expenses is insufficient under Regulation 13(8).
What should you do in light of the changes?
Service of summons
We recommend sending all sealed summonses via pre-paid post, which means Respondents will make considerable costs savings on process servers. If documents are not produced in response to a summons, Respondents could consider then serving the summons in a different way, including by personal service.
Summons production expenses
We recommend sending, with each sealed summons, a cheque for an amount that will cover postage of the documents and some photocopying, say for $30. Doing this will likely avoid potential delay in the production of summonsed records and the administrative cost of having to discuss and negotiate what amounts to reasonable expenses. It may also avoid having to pay for additional production costs in some cases.
We would like to acknowledge the contribution of Shelley Leembruggen to this article.