AF v Roads and Traffic Authority [2011] NSWADT 69 (5 April 2011)

Last Updated: 16 May 2011

Administrative Decisions Tribunal New South Wales

Case Title:	AF v Roads and Traffic Authority
Medium Neutral Citation:	[2011] NSWADT 69
Hearing Date(s):	15 March 2010, 16 March 2010, 10 August 2010 and 11 August 2010
Decision Date:	05 April 2011
Jurisdiction:
Before:	R Wilson, Judicial Member
Decision:	1. Summonses are to issue to witnesses to attend and give evidence in accordance with paragraphs 28 to 31 inclusive of these reasons. 2. A summons is to issue to Lizanne Bennett to attend and give evidence in accordance with paragraphs 39 to 43 inclusive of these reasons. 3. A summons is to issue to produce documents to the Association of Professional Engineers, Scientists and Managers Australia in accordance with paragraphs 39 to 43 of these reasons, the respondent to be given first access to any documents so produced. 4. Both proceedings are listed for further directions at 02:00pm on Thursday 05 May 2011, the directions hearing to be limited to procedural steps to prepare the proceedings for final hearing. The parties are granted leave to apply to the Registry to vary this date should it be inconvenient and if such application be made the parties should liaise to ascertain mutually convenient dates. 5. No further order.
Catchwords:	Application for issue of summons: legal test of apparent relevance.
Legislation Cited:	Privacy and Personal Information Protection Act 1998 ; Health Records and Information Privacy Act 2002; Administrative Decisions Tribunal Act 1997
Cases Cited:	AF v Healthquest [2009] NSWADTAP 42
Texts Cited:
Category:	Interlocutory applications
Parties:	AF (Applicant) Roads and Traffic Authority (Respondent)
Representation
- Counsel:	Counsel M Robinson (Respondent)
- Solicitors:	AF (Applicant, in person) Mallesons Stephen Jacques (Respondent)
File number(s):	073135 and 073275
Publication Restriction:

REASONS FOR DECISION

1. The applicant commenced these two proceedings in the Tribunal pursuant to the provisions of the Privacy and Personal Information Protection Act 1998 and the Health Records and Information Privacy Act 2002 (the Privacy legislation) alleging a series of acts done by the respondent in breach thereof. Neither matter has yet reached a substantive hearing. Presently before the Tribunal for determination are a number of interlocutory applications brought by the applicant following unsuccessful interlocutory applications brought by the respondent at an earlier stage.

2. The materials adduced by the parties are quite voluminous and have been marked as exhibits AB1 to AB9 and RB1 to RB4 so as to distinguish them from materials adduced in the substantive matter and the respondent's earlier interlocutory application.

3. For present purposes it is sufficient to regard the substantive proceedings as involving, when considered together, 7 specific complaints or claims by the applicant. The factual basis of each complaint follows after a summary statement of the background facts.

4. It is common ground that the applicant at material times was employed by the respondent during the course of which two significant events occurred. First the applicant had some time away from her employment by reason of a work related illness and this gave rise to a worker's compensation claim which was processed administratively as time went by. Secondly, the applicant returned to work and in due course she sought appointment to the position of a Project Engineer after her recuperation, both events giving rise to further administrative steps. Two such steps, in particular were that the respondent sought the assistance of Healthquest, a statutory entity, and that the respondent brought disciplinary proceedings against the applicant. Also, it should be noted the applicant brought industrial proceedings against the respondent. This brief outline will suffice at present. As these several processes unfolded the respondent passed on to other entities and organizations information concerning the applicant. In a number of such instances, the applicant wishes to allege in the substantive proceedings, that information about her was collected or passed on in breach of applicable Privacy legislation.

5. The first of the abovementioned complaints has been referred to, by the parties in their submissions, as the fax machine incident (exhibit RB3 "complaint 1") . After the applicant's application for the Project Engineer position was unsuccessful she lodged an appeal, or review, against this decision. The appeal papers were lodged by way of facsimile transmission to a number which the respondent had provided to the applicant for this purpose. This number was not the correct one, with the consequence that the appeal papers were not transmitted confidentially to the particular employee of the respondent who was the intended recipient. By reason of this error the documents sat in a location for some time during which they were open to perusal by employees of the respondent who were not the intended recipient. Further, the applicant alleges that these documents were given to her manager, who was not the intended recipient, before they were eventually passed on to the employee who was the intended recipient. The applicant contends that these actions by the respondent's officers constitute a breach of the privacy legislation.

6. The second complaint is referred to by the parties as the Referees complaint (exhibit RB 3 "complaint 2") . In March 2006 the applicant, as noted above, applied for an appointment to the position of Project Engineer. As part of that application the applicant provided the names of 4 persons described by the respondent as referees for the applicant. Following interview of the applicant by the respondent's Assessment Panel, the Convenor of the Panel contacted these 4 persons and obtained information about the applicant from them. As part of this process, the applicant alleges, the Convenor also supplied certain information about the applicant to each of these 4 persons so as to obtain relevant comment. The respondent's submissions assert that the applicant was unsuccessful in her application, which the applicant disputes. However that may be, the applicant contends that these acts by the respondent's officers in disclosing, collecting and/or using information about her was in breach of Privacy legislation.

7. The third complaint has been referred to by the parties as the request for access complaint (exhibit RB3 "complaint 3). Pursuant to s.14 of the Privacy legislation the applicant sought access to certain documents maintained by the respondent which contained information about her. Access to part thereof was refused on several grounds and the applicant subsequently has sought review by the Tribunal. Access was sought in relation to information contained in 7 categories of documents as shown in the application marked "complaint 3" in exhibit RB3. Strictly speaking, the entitlement provided by s.14 is one of access to information, rather than access to documents. The question raised here is therefore whether the information sought by the applicant should be provided, rather than whether documents per se should be provided. Precision may well become important here as in some cases the applicant has not requested actual documents but, rather, has requested information concerning dealings with information about her.

8. The fourth complaint concerns the placement of medical information about the applicant on her personnel file maintained by the respondent, which the applicant alleges was an improper step, and, additionally, identifies other "irregularities" (exhibit RB3 "complaint 4").

9. The fifth complaint has been referred to by the parties as the Union Disclosure (see exhibit RB3 "complaint 5"). It is in fact a little wider than this description would imply as here the applicant asserts that information about her was improperly disclosed to both a Union official and also to another employee of the respondent who was not entitled to receive this information. The applicant also claims that the respondent collected information about her from the Union (see the application to the Tribunal in matter 073135 in MFI E, paragraph 5).

10. The sixth complaint has been referred to by the parties as the Healthquest Referral (RB3 "complaint 6") . In June 2007 the respondent treated the applicant as being an excess officer and referred her situation to Healthquest for a medical assessment, allegedly for the purpose of ascertaining her capacity for work. It is said by the respondent that the applicant did not attend for interview when requested, this being disputed by the applicant upon the basis that she was granted an extension of time for compliance with the relevant direction to her. It is common ground that this referral to Healthquest involved a disclosure of information about the applicant and that disciplinary proceedings were taken against her by reason of her alleged failure to attend for interview.

11. The seventh complaint concerns the collection, by the respondent's staff, of medical information about the applicant contained in certificates which she had provided to the Insurer dealing with her worker's compensation claim (RB3 "complaint 7").

APPLICATION TO DISMISS THE RESPONDENT'S CASE

12. At paragraphs 69 ff of exhibit AB1 the applicant asserts that the conduct of the respondent has been such that its case should be dismissed and that certain "default" orders be granted. There is an ancillary application to dismiss the respondent's legal representatives, presumably this being an application to prohibit representation by the present legal advisors. In this regard the applicant relies upon the provisions of s.73 of the Tribunal's enabling legislation.

13. In response to these applications the respondent has submitted that whilst it has filed its s.58 documents, evidence and statement of issues, it has not yet filed written submissions in the substantive case, nor has it had the opportunity to cross-examine the applicant. In addition, it is likely that it would wish to make oral submissions at the conclusion of any substantive hearing. In substance, this means that the respondent has not, at this stage, fully delineated the case it wishes to make out in response to the applicant's allegations. Whilst this is so, the respondent has foreshadowed, during the course of earlier interlocutory stages, many of the arguments it will most likely present at the end of the day. Consequently, the respondent's position is known, to some degree at least. Of course, the Tribunal must accept that the respondent may not have developed all of its submissions during the earlier interlocutory process.

14. The primary duty of the Tribunal in any matter before it is to decide what the correct and preferable decision is (s63(1) Administrative Decisions Tribunal Act 1997 ). In addition, a party is entitled to a reasonable opportunity to present that party's case and to make submissions in relation to the issues involved (s.70). In the absence of any further statutory provision the Tribunal, given that it has been created by statute, would necessarily have to consider and determine the substantive matter raised in all matters that come before it. It would not have any interlocutory powers of summary dismissal and therefore, in all matters, it would need to decide what the correct and preferable decision is. However, s.73 of the Act does confer certain interlocutory powers, in particular, the power to dismiss proceedings at any stage where it appears that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance (s.73(5)(h)). However, the extent to which this provision applies to the interlocutory application brought by the applicant here is questionable.

15. Section 73(5)(g) confers a power to dismiss any proceedings before it. Whilst the Act speaks in terms of bringing an application for review (see for example sections 55 to 58), it commonly uses the term proceedings to refer to the administrative process that takes place in the Tribunal, including the hearing, once an application for review has been brought (see for example sections 58(3), (5) and (6), 65, 67(1) and (2) and s76). This drafting style suggests that the power to dismiss may only be exercised by dismissing the proceedings themselves, that is, the actual application for review. If this be so, there is no power whereby the Tribunal may summarily dismiss the case that a respondent wishes to present. A respondent does not in any sense bring proceedings in the Tribunal, apart from any interlocutory matters that it may wish to raise. On this view, the only way that the Tribunal may deal with any issues raised by a respondent that are vexatious or without substance, would be to make directions that such issues may not be argued or to simply ignore them at final hearing of the substantive matter. However, as the parties have not addressed this question in their submissions it is not apposite for the Tribunal to express any concluded view. The better course is to consider the factual basis upon which the applicant seeks her summary dismissal orders. Before any ruling should be made concerning the Tribunal's statutory powers it would be desirable for the Tribunal to hear properly developed legal arguments.

16. The applicant lists 10 circumstances (exhibit AB1 paragraph 70) in support of her application. These circumstances are further elaborated upon in other parts of her written submissions (AB1 Paragraphs 20 ff), albeit in a different context. In particular, in her submissions she referred to the fact that her name appeared on boxes which were used to house Tribunal files and in parts of the transcript. However, the respondent was not responsible for these circumstances, which have now been rectified in any event.

17. The applicant further referred to instances where medical ceritificates and other documents about her had been unlawfully employed in these proceedings, as well as instances where her name in connection with these proceedings had been advised to potential witnesses, and to the Privacy Commissioner, being acts which, she asserted, were unlawful. In addition, she relied upon the provision to the Tribunal of a medical report about her during earlier stages of the proceedings (during the course of a s.71 application) which, again, she asserted was unlawful. The applicant did not however develop the basis for the alleged unlawfulness.

18. However, none of the circumstances relied upon by the applicant have any bearing on the question whether the respondent's answer , to her claims under review, is frivolous, vexatious, misconceived or without substance. Consequently, there is no basis for the Tribunal to make the dismissal orders that the applicant now seeks in relation to the case that the respondent wishes to make.

19. There is a further reason why the Tribunal declines to make any order dismissing the respondent's case at this stage. The circumstances raised by the applicant, if established, may well suggest that the respondent is acting vexatiously in its conduct of these proceedings. If this were so, the Tribunal would be minded to exercise its interlocutory powers to ensure that the proceedings were conducted properly, however, as a matter of discretion, it would not proceed so far as summarily dismissing the respondent's case, even if there were power to do so, by reason of these circumstances. The circumstances relied upon by the applicant, as noted above, do not go to the substance of the respondent's answer to her claims, rather they go to a procedural question concerning the way in which the respondent has conducted its case so far.

20. In this regard, to properly investigate the allegations made by the applicant would require an immense amount of evidence concerning the lawfulness or otherwise of the respondent's actions. Such an investigation would consume a great deal of time and the Tribunal is of the view that the expenditure of further time on these issues is not warranted. Rather, the Tribunal prefers to rely upon its own observations of the way in which the respondent has conducted these proceedings and is of the view that the respondent has pressed its case in a proper manner, given that the proceedings are adversary in nature. Whilst the applicant disputes that this is so, the time involved in pursuing her allegations at an interlocutory stage prohibits the following of the course that she is pressing for. Her allegations therefore must remain undetermined for present purposes.

21. However, some of the above circumstances do have a logical bearing upon whether an order should be made removing the respondent's legal representatives from further participating in the hearing, assuming there is a power to do so. The existence of such a power was not argued by the parties, but presumably it could be based in the Tribunal's powers to regulate its own procedures (s.73(1)) or its powers in relation to representatives (s.71). In the absence of proper argument on the point though the Tribunal will not make any final ruling on the issue. The better course is to look to the merits of the interlocutory application now before the Tribunal.

22. Because the Tribunal's processes and powers are administrative in nature a respondent will always need to be alert to the provisions of privacy legislation when it is preparing its case and determining what evidence and materials it can take into account, at the time of the initial decision, and proffer to the Tribunal should a review take place. A respondent also, of course, will need to be alert to the provisions of the general law concerning information that has come to its hand during the course of other litigation that it may have been involved in against the applicant in another place. Restrictions may well apply to the user of information that a respondent in fact holds.

23. In this particular matter though the Tribunal is satisfied, for the reasons already stated, that the respondent's legal representatives have pursued this matter in a way that they believed was in the best interests of their client and have done this within proper boundaries. As noted above, the Tribunal here prefers to rely upon its own observations and declines to enter further into any investigation of the claims made by the applicant. To do so would involve an unwarranted expenditure of time on issues that are truly peripheral to the main issues in the case. It would also involve adducing a significant amount of evidence in relation to these peripheral issues. Consequently, on the evidence before it, the Tribunal is not satisfied that any unlawful or improper conduct has occurred. Further, even if the applicant's allegations are accepted at face value, powers conferred by s.73 are discretionary, and the Tribunal is well persuaded that the acts of the respondent's legal representatives have been done in good faith and consequently the Tribunal would not make the orders sought by the applicant against them on discretionary considerations alone. Certainly, the allegations made by the applicant do not suffice to persuade the Tribunal, as a matter of discretion, that it should make the orders sought given the way that the applicant's legal representatives have ably represented the respondent and assisted the Tribunal in hearing what has proved to be a complex and difficult case. The Tribunal is satisfied that if the irregularities advanced by the applicant have occurred, they have been inadvertent. Here the Tribunal, of course, is not making any findings that the applicant's assertions are in fact true but is simply stating its discretionary determination on the assumption that the applicant's assertions are accepted at face value. For the Tribunal to lose the able assistance of the respondent's legal representatives at this stage would be of great detriment to both parties.

24. The Tribunal notes that whilst the applicant also relied upon irregularities and deficiencies in the s.58 documents filed, matters such as these may be adequately dealt with by submissions as to relevance and weight at final hearing. This aspect is of no weight with regard to the point under discussion here.

APPLICATION FOR SUMMONSES TO ISSUE

25. The circumstances pertaining to the applicant's several claims, as outlined above, demonstrate that there are quite different transactions occurring across time and that a number of different actors have been involved in the relevant collections and/or transfers of information about the applicant. The respondent will be advancing arguments that at least some, if not all, of the information involved is such that the Privacy legislation does not have application, the main point being that the information relates to the applicant's suitability for employment and therefore comes within one of the exemption provisions. Also, the issues raised by the respondent will involve, in some cases, identifying the purpose of the collection or user of information about the applicant. Here it should be noted that the applicant also wishes to advance an argument that information was acquired, or used, for an improper purpose as distinct from the argument that, for example, information was used for a purpose other than that for which it was collected. Consequently, evidence may well be adduced from a number of sources, whether by way of tender of documents or viva voce evidence, and, because the rules of evidence do not apply, it is possible that some of the actors may be able to give cogent evidence acquired by them during the course of their dealings concerning the applicant. The applicant has made extensive enquiries at material times and she stands possessed of information that has been given to her as her enquiries proceeded.

26. The relevant legal test has recently been stated by the Tribunal's Appeal Panel, after reviewing the leading authorities, as being a relatively broad one, the criterion being adequately expressed by the words apparent relevance (AF v Healthquest [2009] NSWADTAP 42 paragraph 52). This is the test that the Tribunal shall apply. It should be noted here that one aspect of the applicant's case is that she asserts the existence of a collateral purpose with respect to many of her claims. In that context a material consideration is the possibility that senior officers may be able to give relevant evidence of purpose based on information that may well be not known to persons who actually dealt with the applicant.

27. The applicant initially sought the issue of 4 summonses for the production of documents and 16 summonses to witnesses to attend and give evidence at hearing (exhibit AB1 paragraphs 55 ff). It is convenient to deal with the summonses to witnesses first. It is noted that Mary Grace will attend for cross-examination in any event, so the summons to her is not being pressed and that the applicant has advised that proposed summons to Rae Giffin is also no longer pressed.

28. Richard Boggon and Emilia Cvetkovic were employees of the respondent at relevant times. Ms Cvetkovic recieved information about the applicant from the respondent's workcover insurer (via Ms Giffin) and Mr Boggon signed the referral to Healthquest which included medical information about the applicant that the respondent had on hand. Clearly both witnesses could give evidence that has apparent relevance to the applicant's sixth complaint mention above. Also, Ms Cvetkovic's evidence has apparent relevance to the applicant's seventh complaint.

29. Rod Tout was also an employee of the respondent. He signed a file note, which the applicant has seen, referring to the placement of information about the applicant on particular files. Mr Tout's evidence has apparent relevance to the applicant's fourth complaint.

30. Soames Job was an employee of the respondent who was involved in the redeployment process which affected the applicant. He signed an assessment in relation to her. The applicant also asserts that an employee working under Mr Job contacted the referees that the applicant had provided during that same process. Mr Job's evidence has apparent relevance to the applicant's second complaint. Michael de Roos was the employee who actually made contact with these referees, his evidence clearly having apparent relevance to this same complaint.

31. The witnesses Jenny Dooley and Yen Phu were employees of the respondent, the former having provided the incorrect facsimile number to the applicant and the latter subsequently providing the correct number. They are clearly able to give evidence having relevance to the first complaint. Michael Bushby was the officer who was the proper recipient of the misdirected communication and therefore also able to give evidence of apparent relevance to this complaint.

32. Consequently, for the above reasons, the summonses referred to in paragraphs 28 to 31 may issue.

33. The witness Stephen Davison was the CEO of Healthquest at the time of the sixth complaint. The applicant argues that this witness is able to give evidence touching upon the purpose of the respondent with respect to the referral the subject of the sixth complaint. The respondent disputes that this is so, or at least is unable to understand why this witness is relevant (exhibit RB2 paragraph 17). There is certainly some degree of speculation in the applicant's submission. Whilst it may well appear in due course that the proposed witness is in fact able to give relevant evidence on this point, at this stage, it cannot be said that his evidence presently has apparent relevance. Should the evidence eventually adduced change this situation materially, the applicant may renew her application for the summons. With respect to this witness the applicant also argued that he could give evidence in relation to whether Healthquest was properly constituted at material times, however, for the reasons given below this is not a live issue in these particular proceedings.

34. Phillip Youngman was the employee of the respondent who reviewed, and decided, the applicant's initial privacy applications. In the normal course the decision maker below will rarely, if ever, be in a position to give evidence that has any apparent relevance to issues in proceedings like these, essentially by reason of the fact that the Tribunal's review is a substantive re-consideration of an applicant's initial application. Of course, there may well be cases where the original decision maker's investigations bring to light evidence that could, to the minds of others, suggest the existence of a purpose collateral to that put forward by the person who did the acts alleged to be in breach of the privacy legislation. The applicant does of course raise an issue like this. However, to put such a witness in a position where his or her evidence could be argued to have apparent relevance there would need to be some evidence suggesting that relevant evidence has been brought to light during the investigation which, without that witness, would not be adduced before the Tribunal. There is no such evidence here, consequently the Tribunal is not persuaded that the evidence of this witness could have apparent relevance, at least at this stage.

35. Elizabeth O'Toole was an employee of Healthquest who prepared a report in relation to the applicant some 2 months after the applicant resigned her own employment. Jill Henessey was also an employee of Healthquest who assumed the position formerly held by Stephen Davison and who, the applicant asserts, was involved in the preparation of the report just mentioned. These witnesses have no apparent relevance for the reasons given above in relation to Phillip Youngman.

36. The applicant has also argued that witnesses employed by Healthquest would be able to give cogent evidence in relation to the question concerning Healthquest's proper constitution. However, this question can have no bearing in the present proceedings and therefore the question does not suffice to give the evidence that these witnesses may give on the point any apparent relevance.

37. There are two further summonses to give evidence requiring consideration. Both are considered in the discussions that follow.

THE SUMMONS TO HEALTHQUEST And NEW SOUTH WALES HEALTH

38. The applicant did not eventually press for the issue of the summons to produce to Healthquest. In any event it should not issue for the reasons given at paragraph 36 above as well as the fact that it has been dissolved. Equally, the summons to produce documents addressed to New South Wales Health, the repository of Healthquest's records, should not issue as the question whether Healthquest was properly constituted at material times is not a relevant issue in these current proceedings.

THE UNION COMPLAINT

39. With respect to this complaint the applicant seeks a summons to give evidence and a summons to produce documents.

40. Lizanne Bennet was an employee of the Association of Professional Engineers, Scientists and Managers Australia, the Union involved in the third complaint, and the applicant wishes a summons to issue to her to give evidence. The applicant also seeks a summons to issue to the Union to produce documents (exhibit AB2).

41. The draft summons to produce documents lists communications to and from the Union wherein the applicant is mentioned by name together with copies of investigations and reports by the Union into the affairs of the applicant. The applicant notes that the draft summons in exhibit AB2 requires the insertion of the words "in relation to the applicant" in paragraphs 7 and 8 thereof. In part, the applicant alleges that information was collected about her by the respondent and used by the respondent during the course of subsequent "disciplinary" proceedings. These several communications appear to be central to this complaint and accordingly have apparent relevance as they would reveal the passage of information, if that in fact occurred. This summons should issue in the terms set out in exhibit AB2 with the insertion of the above words in paragraphs 7 and 8.

42. As the respondent may wish to advance arguments that some of these documents are "exempt" in nature, being documents in issue with respect to the applicant's third claim, the respondent is granted first access to these documents when produced to ascertain whether these arguments are to be pressed. If that be so, the applicant is not granted access to documents the subject of any such arguments until further order. This may be discussed further at future directions hearings.

43. The witness Lizanne Bennet would be in a position to speak to these documents should any of them be tendered in due course. Her evidence is therefore of apparent relevance and a summons should issue to her.

THE PRIVACY COMMISSIONER

44. The applicant seeks a summons to give evidence to the Privacy Commissioner, Phillipa O'Dowd and also seeks the dismissal of the Privacy Commissioner as a party to the proceedings.

45. The Privacy Commissioner is entitled to be given notice of any application to the Tribunal pursuant to the Privacy and Personal Information protection Act 1998 (ss.55(6) and (7). Not withstanding these provisions, the applicant has argued that forwarding a copy of documents to the Commissioner, as well as the Commissioner's participation in the proceedings, has both denied her natural justice and constituted an infringement of her confidentiality (exhibit AB1 paragraphs 62ff). In addition she asserts that the involvement of the Commissioner may be activated by an improper purpose. However, there is no evidence to support these assertions and no order should be made in relation to the Commissioner's participation in these proceedings. Also, there is no basis for finding that the Commissioner would be able to give any evidence relevant to the issues involved and therefore there is no basis for establishing apparent relevance of any evidence that the Commissioner may give. Consequently, no summons should issue to the Commissioner to attend and give evidence.

46. Here the Tribunal notes that in the absence of any well founded argument, the Tribunal declines to embark on any consideration of the extent to which the Privacy Commissioner's involvement in the proceedings may be regulated, if at all.

THE SUMMONS TO THE RESPONDENT

47. The applicant, at the end of the day, sought the issue of a summons to produce to the respondent as set forth in exhibit AB8 whereas at an earlier stage the draft summons in exhibit AB5 had been pressed. Many categories of documents are listed in these draft summonses, many of which could, prima facie, have apparent relevance to the proceedings. The applicant presses this summonses upon the basis that it is her view that many documents are missing from the s.58 documents filed by the respondent pursuant to its statutory duty to do so. The s.58 documents are contained in exhibit R3 and in part comprise documents over which exemptions are claimed with the consequence that the applicant has not been provided with copies of all documents within exhibit R3.

48. The respondent objects to the issue of this summons on several grounds.

49. The Tribunal is not satisfied that it would be apposite to issue the requested summons in its broadly drafted terms. The respondent has in fact filed its s.58 documents and to the extent that the applicant has copies of documents which she argues should have been included, she is able to tender those copies in her own case. Should she not have copies of allegedly missing documents she can request the issue of summonses for specific documents that she is able to identify. This aspect can only be properly decided once the parties have filed all their evidence so that the Tribunal is in a position to properly adjudicate on the point. This is the better course to follow and consequently the requested summons should not issue.

50. By reason of this, it is not necessary here to address all of the arguments advanced by the parties concerning this summons.

THE SECTION 75 APPLICATION

51. The applicant seeks suppression orders concerning her "health information" and "other documents filed by the respondent in the proceedings" (exhibit AB1 paragraph 6). In support of this the applicant outlines in her submissions several actions which are said to be breaches of the Tribunal's earlier order that she be referred to as "AF" in the proceedings (exhibit AB1 paragraphs 20ff). The applicant has developed her submissions on this aspect extensively at hearing. In substance the applicant is really seeking broad orders from the Tribunal which would prohibit the respondent's use of information that it holds about her personal matters.

52. Whatever information the respondent holds about the applicant is currently protected by both the Tribunal's existing order as to the use of her name and the provisions of the privacy legislation itself. At present this protection is adequate and does not require the making of the broad orders under s.75 that the applicant now seeks. Consequently, such orders will not be made at this stage. Much turns on whether the breaches alleged in these proceedings have or have not occurred and any need for s.75 orders will better be determined when the matter has been heard substantively, particularly given the respondent's position that much of the information about the applicant is in fact outside the purview of the privacy legislation.

ANCILLARY MATTERS

53. The applicant's interlocutory submissions included a number of ancillary applications. She sought an adjournment of the interlocutory hearing to enable her to fully develop her submissions which, she said, were incomplete. One reason for this, she alleged, was because the respondent had not provided her with its written submissions until the morning of one of the hearing days. The Tribunal declined to grant this application. Sufficient time had been allowed for the development of argument and the applicant was given time to prepare and submit final submissions in reply in writing. Also, the Tribunal was persuaded that the only real issue that required consideration at this interlocutory stage was the determination of summonses that should issue and this issue had adequately been developed during the interlocutory hearing. The other issues raised by the applicant were not such that any more time needed to spent on them.

54. The applicant also sought a number of orders with respect to transcript corrections and the provision of further sound recordings. These matters, however, can be adequately dealt with at final hearing when the parties are referring to evidence that has been given or submissions should they become relevant. There is no point on spending significant time on past transcripts of interlocutory stages when the substantive hearing is yet to come. It will be the evidence that is given at substantive hearing that will be critical in the matters.

55. The Tribunal therefore makes orders in accordance with these reasons.

1. Summonses are to issue to witnesses to attend and give evidence in accordance with paragraphs 28 to 31 inclusive of these reasons.

2. A summons is to issue to Lizanne Bennett to attend and give evidence in accordance with paragraphs 39 to 43 inclusive of these reasons.

3. A summons is to issue to produce documents to the Association of Professional Engineers, Scientists and Managers Australia in accordance with paragraphs 39 to 43 of these reasons, the respondent to be given first access to any documents so produced.

4. Both proceedings are listed for further directions at 02:00pm on Thursday 05 May 2011, the directions hearing to be limited to procedural steps to prepare the proceedings for final hearing. The parties are granted leave to apply to the Registry to vary this date should it be inconvenient and if such application be made the parties should liaise to ascertain mutually convenient dates.

5. No further order.