AF v HealthQuest (GD)

[2009] NSWADTAP 42

Appeal Panel - Internal

CITATION:	AF v HealthQuest (GD) [2009] NSWADTAP 42 This decision has been amended. Please see the end of the decision for a list of the amendments.
PARTIES:	APPELLANT AF RESPONDENT HealthQuest
FILE NUMBER:	099008, 099012
HEARING DATES:	27 May 2009
SUBMISSIONS CLOSED:	27 May 2009
DATE OF DECISION:	6 July 2009
BEFORE:	Chesterman M - Deputy President; Handley R - Deputy President; Bolt M - Non-Judicial Member
CATCHWORDS:	Appeal against decision authorising issue of summonses – legitimate forensic purpose
DECISION UNDER APPEAL:	AF v Healthquest [2009] NSWADT 28
FILE NUMBER UNDER APPEAL:	073365
DATE OF DECISION UNDER APPEAL:	07/06/2009
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Health Records and Information Privacy Act 2002 Health Services Act 1997 Privacy and Personal Information Protection Act 1998
CASES CITED:	AF v Healthquest [2009] NSWADT 28 Arhill Pty Ltd v General Terminal Co Pty Ltd (1990) 23 NSWLR 545 Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984] 3 NSWLR 98 Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 574-575 Healthquest v AF [2009] NSWADTAP 31 Joan Street & Ors v Luna Park Sydney Pty Ltd & Anor [2006] NSWSC 95 Lloyd v Veterinary Surgeons Investigating Committee & Anor [1999] NSWCA 68 New South Wales Bar Association v Archer [2004] NSWADT 38O’Sullivan v Central Area Health Service [2005] NSWADT 16 PC v University of New South Wales (No 2) [2005] NSWADT 264 Re Ridgeway [1998] SASC 6963 R v Saleam (1989) 16 NSWLR 14 Sullivan v Adt [2000] NSWSC 386 Trade Practices Commission v Arnotts Ltd (No 2) (1989) 88 ALR 90 White v Tulloch (1995) 19 Fam LR 696
REPRESENTATION:	APPELLANT In person RESPONDENT J Lucy, solicitor
ORDERS:	1. The appeal by the Appellant/Cross Respondent (file 099008) is dismissed 2. The appeal by the Respondent/Cross Appellant (file 099012) is allowed in part 3. Order 2 of the Tribunal’s decision on 9 February 2009 is set aside and the following order substituted: ‘Approval is not granted for the issue of a summons to Telstra Corporation Ltd forming part of exhibit A3’ 4. Order 3 of the Tribunal’s decision on 9 February 2009 is set aside and the following order substituted: ‘Approval is not granted for the issue of a summons to New South Wales Health forming part of exhibit A3’ 5. The matter is remitted to the Tribunal for further consideration at a planning meeting listed for 12.30 p.m. on 22 July 2009.

Introduction

1 This decision relates to appeals lodged by the Appellant/Cross Respondent, ‘AF’, and the Respondent/Cross Appellant, HealthQuest. HealthQuest is a statutory health corporation constituted under section 41 of the Health Services Act 1997.

2 The decision under appeal, delivered by Judicial Member Wilson on 9 February 2009 (AF v Healthquest [2009] NSWADT 28 – hereafter ‘the Tribunal’s decision’), was made in the course of proceedings previously instituted by AF. In those proceedings, AF applied for a review by the Tribunal of alleged conduct by HealthQuest that she claims to have been in breach of privacy legislation.

3 The Tribunal’s decision dealt with an application by HealthQuest for orders setting aside a number of summonses that AF had sought to have issued by the Registrar under section 84 of the Administrative Decisions Tribunal Act 1997 (‘the ADT Act’). The principal ground advanced by HealthQuest was that the evidence likely to be obtained through the issue of the summonses was not relevant to the matters to be determined in the proceedings.

4 The Tribunal held that none of the summonses should be set aside, but that the range of documents required to be produced in one of them should be curtailed. It stated in Orders 1 to 4 that seven such summonses, addressed to persons who were not parties to the proceedings, might be issued requiring the recipients to attend and give evidence (in three instances) or to produce specified documents (in the remaining four instances). It expressed the opinion, at [21], that since the power to issue summonses was conferred by section 84 on the Registrar, the issuing of the summonses requested by AF should be referred to the Registrar for ‘final determination’.

5 Both of the parties to the proceedings appealed against this decision. The first appeal was lodged by AF on 12 March 2009. The second was lodged by HealthQuest eight days later. Because the Tribunal’s decision was an interlocutory decision, each appellant filed also an application for leave to appeal, as required by section 113(2A) of the ADT Act.

6 At a directions hearing on 31 March 2009, Magistrate Hennessy, Deputy President, made an order under section 75(2) of the ADT Act prohibiting publication of the Appellant/Cross-Respondent’s name, address or any other material that might lead to her identification in these proceedings. She also gave various directions including the following: (a) HealthQuest’s appeal should be accepted out of time pursuant to section 113(3) of the ADT Act; (b) the two appeals should be heard consecutively on the same day by the same Appeal Panel, with AF’s appeal heard first; and (c) AF’s application for the transcript of the Tribunal’s hearing of HealthQuest’s application to set aside the summonses should be refused.

7 In a decision delivered on 18 May 2009 (Healthquest v AF [2009] NSWADTAP 31), the Appeal Panel, constituted by the Presiding Member of the present Panel, acceded to an application by HealthQuest for an order staying Orders 1 to 4 of the Tribunal’s decision pending the disposition of its appeal or any contrary order of the Appeal Panel.

8 In accordance with one of the directions given by Magistrate Hennessy, the Appeal Panel heard AF’s appeal first, then HealthQuest’s appeal, on 27 May 2009. It indicated in the course of the hearings that the requisite leave to appeal was granted to each appellant.

Relevant aspects of the Tribunal proceedings

9 In her application initiating these proceedings, AF alleged that HealthQuest, in collecting personal information about her from her former employer and in using this information, had breached a number of ‘information protection principles’ and ‘health privacy principles’ laid down respectively in the Privacy and Personal Information Protection Act 1998 (‘the Privacy Act’) and the Health Records and Information Privacy Act 2002 (‘the Health Privacy Act’).

10 She alleged that HealthQuest had breached information protection principles set out in five sections of the Privacy Act. These sections require public sector agencies (which include HealthQuest) to observe principles to the following effect:-

(a) They must not collect ‘personal information’ (defined in section 4) about an individual unless (1) it is collected for a lawful purpose directly related to a function or activity of the agency and is reasonably necessary for that purpose and (2) it is collected by lawful means (section 8).

(b) Except in limited circumstances, they must collect such information directly from the individual concerned (section 9).

(c) When such information has been collected, they must take reasonable steps to ensure that the individual concerned is aware of a number of specified matters, such as the intended recipients of the information, the purpose(s) for which it is being or has been collected and the existence of any right to gain access to it and correct it (section 10).

(d) They must hold personal information for no longer than is necessary for the purpose(s) for which it may lawfully be used, and must observe certain requirements bearing upon the security of the information (section 12).

(e) They must not use the information for a purpose other than the purpose(s) for which it was collected, or for a ‘directly related’ purpose, unless the individual to whom it relates gives consent or such use is necessary to prevent or lessen a serious and imminent threat to the life or health of a person (section 17).

11 AF also alleged breaches of sections 20 and 21. These provisions of the Privacy Act define the applicability to public sector agencies of the information protection principles laid down in sections 8 to 19 inclusive.

12 In addition, AF alleged breaches by HealthQuest of nine health privacy principles set out in clauses of Schedule 1 to the Health Privacy Act. These principles apply to ‘organisations’ – which include public sector agencies such as HealthQuest – in their collection and use of ‘health information’ (as defined in sections 5 and 6 of this Act).

13 The breaches alleged by AF included breaches of clauses 1, 3, 4, 5 and 10 of the Schedule. In broad terms, the principles stated in these five clauses resemble the information protection principles set out respectively in sections 8, 9, 10, 12 and 17 of the Privacy Act, subject to an important exception. This is that under clause 3, health information may be collected from a person other than the individual concerned where it would be ‘unreasonable or impracticable’ to collect it from this individual.

14 AF also alleged breaches by HealthQuest of four further clauses of Schedule 1 of the Health Privacy Act. These oblige ‘organisations’ to provide access to health information to the individual to which it relates (clause 7), to ensure that information being used by it is accurate and complete (clause 9), to adhere to requirements limiting the disclosure of health information for any ‘secondary purpose’ (clause 11) and to refrain, subject to exceptions, from including health information in a ‘health records linkage system’ (clause 15).

15 It is convenient to note here that information of a type that is both ‘personal information’ under section 4 of the Privacy Act and ‘health information’ under sections 5 and 6 of the Health Privacy Act is excluded from the operation of the former Act by section 4A of that Act. The definitions of ‘personal information’ and ‘health information’ both exclude ‘information or an opinion about an individual’s suitability for appointment or employment’ as a ‘public sector official’ (see Privacy Act, section 4(3)(j); Health Privacy Act, section 5(3)(m)). The definitions of a ‘public sector official’ in these two Acts include a person employed or engaged by a public sector agency.

16 On 20 June 2007, HealthQuest received from the Roads and Traffic Authority (‘the RTA’), which was then AF’s employer and is a public sector agency, a request to assess her fitness to continue in her position at the RTA. According to AF, HealthQuest breached the information protection principles and health privacy principles listed in her application in the course of receiving and dealing with this request from the RTA.

17 By a letter dated 21 August 2007, AF requested HealthQuest to undertake an internal review of its alleged contraventions of these principles. Under section 53 of the Privacy Act and section 21 of the Health Privacy Act, she was entitled to seek such a review.

18 By a letter dated 8 November 2007, HealthQuest advised AF of the outcome of this review.

19 On 7 December 2007, being dissatisfied with this outcome, AF filed her application to the Tribunal. In addition to listing the information protection principles and health privacy principles that she claimed to have been breached by HealthQuest, she described the alleged conduct of HealthQuest on which she based this claim. The Tribunal’s decision contains an account of this alleged conduct, which is summarised below.

20 On 4 September 2008, in the course of a number of interlocutory procedures taking place during 2008, HealthQuest filed a document headed ‘Respondent’s Submissions’. It stated inter alia that HealthQuest now understood AF to be alleging a breach of section 18 of the Privacy Act. This section prohibits disclosure of personal information held by a public sector agency to any person or body unless (a) the disclosure is directly related to the purpose for which the information was collected and the agency has no reason to believe that the individual to whom it relates would object to the disclosure, or (b) the individual has been notified or would be likely to know that such disclosure was likely to occur, or (c) the agency believed on reasonable grounds that the disclosure was necessary to prevent or lessen a serious and imminent threat to the life or health of a person.

21 In this document, HealthQuest also contended that it had not breached either the Privacy Act or the Health Privacy Act for a number of reasons. One of these was that the relevant information fell outside the definitions of ‘personal information’ and ‘health information’ because it was ‘information or an opinion about an individual’s suitability for appointment or employment as a public sector official’.

22 At a planning meeting on 23 September 2008, Judicial Member Wilson gave directions for the filing and serving of drafts of summonses that AF wished to have issued under section 84 of the ADT Act and for the hearing of any objections by HealthQuest to the issuing of any of these summonses. In so directing, he followed procedures laid down in clause 12 of the Tribunal’s Practice Note No. 7 for the issue of summonses in matters arising under privacy legislation. This clause requires, among other things, that a party requesting the issue of a summons should ‘identify the relevance’ of the evidence sought to the proceedings.

23 On 11 November 2008, AF filed and served nine draft summonses in accordance with this direction. On 2 December 2008, Judicial Member Wilson heard objections by HealthQuest to the issue of seven of these summonses and AF’s responses to these objections. The Tribunal’s decision determined the validity of these objections.

The Tribunal’s decision

24 In its decision, the Tribunal, as already indicated, came to the conclusion that none of the seven summonses to which HealthQuest objected should be set aside, but that the range of documents required to be produced in one of them should be curtailed. It commenced by outlining relevant factual matters.

25 At [5 – 6], it described certain dealings in June 2007 involving AF (the applicant), HealthQuest (the respondent) and the RTA:-

5 The substantive proceedings concern acts of the respondent and of the RTA concerning the applicant’s personal information. In June 2007 the applicant was an employee of the RTA and was in the course of resuming her employment after an absence pursuant to a program that had been put in place by her employer. Her earlier absence from work was upon medical grounds. She provided a number of medical certificates to the RTA’s workcover insurer, Also, it seems, she provided other medical documents relating to her health to her employer which, it is alleged, had a connection with litigation between the applicant and her employer that was on foot as well as further document which related to an internal investigation conducted by the RTA.

6 On 20.06.07, the respondent received a written request from the RTA to prepare an assessment, putting it generally, of the applicant’s fitness to continue employment with the RTA. Attached to this request were other documents, referred to above, recording information about the applicant’s health and activities….

26 The Tribunal then set out (at [6 – 10]) what it described as six ‘contentions’ to be argued in the proceedings. They related, the Tribunal said, to the following conduct by HealthQuest that AF claimed to have been in breach of the information protection and health privacy principles:-

(1) HealthQuest unlawfully collected personal and health information relating to her. The unlawful aspects of its conduct included the fact that at the relevant time it had no properly constituted Board and was not accredited.

(2) In a manner contravening privacy legislation, it embarked on an assessment of her health using the medical documentation relating to her that it had received from the RTA and from the RTA’s workcover insurer.

(3) It incorrectly recorded her as having retired from employment with the RTA whereas in fact she resigned.

(4) It passed on to the RTA a number of emails relating to the assessment process that it had received from her.

(5) Its employee, Mr Steve Davison, made three telephone calls to her on her private telephone number.

(6) It recorded incorrectly that she had refused to attend an interview with it when in fact it had granted her an extension of time.

27 It is convenient to indicate here that in her submissions on the appeal, AF claimed that a number of statements forming part of this summary of six ‘contentions’ were inaccurate. She raised the following objections to it:-

(a) The Tribunal should not have said that she ‘resumed’ employment with the RTA in June 2007 because in fact she was continuously employed between a date in July 2003 and 14 September 2007. In June 2007, she was in a period of ‘graded return to work’ in accordance with medical restrictions that the RTA had approved.

(b) The Tribunal should not have said at a number of points in its decision that HealthQuest commenced an assessment of her health in order to determine her fitness to continue in employment. In fact, the ‘fitness to continue’ assessment never commenced.

(c) It was incorrect for the Tribunal to say that there was a dispute as to whether she was recorded by HealthQuest as having retired or resigned from the RTA. A suggestion that she had retired was made only in one phone call between the Chief Executive Office of Healthquest and Mr Richard Boggon, an employee of the RTA. In fact, HealthQuest’s records described her correctly as having resigned.

(d) It was also incorrect to say that according to HealthQuest’s records she had refused to attend an interview, or indeed to refer to a claim by her that HealthQuest had granted her an extension of time, because HealthQuest never proposed an interview to her at any time.

28 The Tribunal then stated (at [11]) that AF wished to establish that HealthQuest’s conduct was in breach of section 68 of the Privacy Act. It added that this aspect should be ‘put on one side’ since there were significant doubts as to the Tribunal’s powers and jurisdiction regarding such an allegation.

29 AF argued at the hearing of the appeal that this statement was erroneous. She said that the section of the Privacy Act to which she referred was section 62. This section is headed ‘Corrupt disclosure and use of personal information by public sector officials’. Under section 62(1), it is a criminal offence for a public sector official to disclose intentionally or use any personal information about another person to which the official has had access in the exercise of his or her official functions, save in connection with the lawful exercise of these functions. Under section 62(2), it is an offence to induce or attempt to induce disclosure by a public sector official of any such information.

30 At [12], the Tribunal considered two of the nine summonses that AF sought to have issued. They were summonses to two employees of HealthQuest (Ms Hennessy and Ms O’Toole) requiring them to attend and give evidence. Being satisfied from statements by HealthQuest that they would in fact do this, the Tribunal held that there was no need for the two summonses to be issued.

31 In the ensuing paragraphs, the Tribunal turned its attention to six of the remaining seven summonses. It stated (at [13]) that in determining their validity it should ‘act upon the broad issues as the applicant [AF] has outlined them’.

32 At [14], it considered summonses to attend addressed to two employees of the RTA (Mr Boggon and Ms Cvetkovic), who were involved in the assessment referral to HealthQuest and/or with the litigation currently occurring between AF and HealthQuest. It held that because of this involvement ‘they may possibly be able to give evidence relevant to the issues that the applicant seeks to argue’ and that the summonses to them should therefore be issued.

33 At the hearing of the appeal, AF claimed that the Tribunal misrepresented her reason for wishing to secure the attendance of these two witnesses. The reason set out in her evidence and submissions to the Tribunal was, she said, that these two witnesses improperly used and disclosed personal and health information relating to her.

34 At [15], the Tribunal held that the summons to attend addressed to a further proposed witness, Ms Giffin, should be issued. It said that Ms Giffin, being an employee of the RTA’s workcover insurer who dealt with AF’s claim in relation to her absences from work, appeared to have provided information to the RTA during the course of her duties. ‘This’, the Tribunal said, had ‘possible relevance as well’.

35 At [16], the Tribunal considered a summons to the Telstra Corporation requiring it to produce any documents relating to three specified telephone calls. The calls were all made in October 2007. The Tribunal stated that the making of these calls did not appear to be really in issue in the proceedings. It then said, however, that according to AF an officer of Telstra had told her that these documents might include a record of the actual conversations, though this could only be ascertained if a summons was issued and served. The Tribunal then said: ‘Whilst there is some doubt about this, the Corporation should have no difficulty in locating relevant documents and therefore, as a matter of convenience, the summons should issue.’

36 At [17], the Tribunal dealt with a summons to New South Wales Health requiring it to produce documents relating to two matters: (a) whether HealthQuest was accredited under relevant legislation at the relevant time; and (b) the proper constitution of the HealthQuest Board under the legislation.

37 With regard to the first of these matters, the Tribunal indicated that HealthQuest had accepted that it was not accredited at the relevant time. Accordingly, it said, there was no factual matter in dispute upon which such documents might bear. It held that for this reason the summons to New South Wales Health should not require any records relating to accreditation.

38 With regard to the second matter, the Tribunal referred to an acknowledgment by HealthQuest ‘for present purposes’ to the effect that ‘particular steps were in fact taken arising from some concerns about the appointment of the Board, putting it very generally and imprecisely’. The Tribunal then held as follows:-

17… If the Board was not properly constituted, the applicant seeks to argue that it had no entitlement to collect information from the RTA and, perhaps, no entitlement to embark upon the assessment of the applicant that the RTA had requested it to undertake. Whilst these arguments do not appear to be very strong ones, it is often the case that proceedings in this Tribunal can turn on an issue like this, so there is some merit in the argument. As the summons in this regard does not seem too onerous it would be appropriate for a summons to issue requiring the production of the records establishing how the Board was established. The summons however should be limited to all records maintained by NSW Health evidencing the establishment of the HealthQuest Board in 2006 and 2007 (emphasis in the Tribunal’s decision).

39 At [18 – 20], the Tribunal set out as follows it reasoning and conclusions relating to a summons to produce addressed to the RTA:-

18 The draft summons proposed to be issued to the RTA (contained in exhibit A3) is very broad and compliance could involve a significant amount of time on the part of officers dealing with the summons. Parts of the proposed summons cover an extensive period, that between April and November 2007. However, the summons specifies clear criteria by which the documents sought may be ascertained so that it may well be that the RTA is able to manage compliance within reasonable limits. Whilst this remains to be seen, it may well be that compliance with the summons may be achieved by the production of specific files containing the relevant records. Should the RTA take a different view it may seek orders in relation to the breadth of the summons.

19 The critical issue however, is the potential relevance of the documents sought. There are basically four categories of documents specified, all of which the applicant submits have potential relevance: firstly, records which are concerned with the referral by the RTA to HealthQuest seeking a work assessment of the applicant, which clearly have potential relevance; secondly, records of communications between officers of the RTA and officers of HealthQuest concerning this referral, which appear most likely to fall within the first category in any event, and therefore have potential relevance; thirdly, records of communications between the applicant and any of three specified persons who are to be witnesses in the proceedings, which potentially could go towards proving facts in the case or towards the credit of the witnesses, depending upon the evidence they may give, and therefore have potential relevance; and fourthly, communications between these witnesses themselves concerning the applicant, which have similar relevance to documents in the third category.

20 The applicant has essentially based her case on the argument that the specific documents which record the acts of the respondent (such as the referral document) do not fully set out the whole factual matrix, which she argues it is necessary for the Tribunal to know. She has subsequently formulated the terms of this summons with a degree of careful thought so that it is not difficult to see how the type of documents sought could possibly assist her in presenting her case. Whether they in fact do this is, of course, unknown at present. However, it is appropriate that a summons issue to the RTA in the terms set forth in the draft summons to the RTA contained in exhibit A3.

40 It should be added here that the ‘three specified persons’ referred to in paragraph [19] were Mr Boggon, Ms Cvetkovic and Ms Giffin.

41 The remaining summons to which the Tribunal’s orders related was a summons to attend and give evidence addressed to Mr Davison, an employee of the RTA. As mentioned above at [26], one of the six ‘contentions’ outlined by the Tribunal concerned a claim by AF that he had called her on her private telephone number. The Tribunal’s decision did not contain any discussion of this summons.

42 In the final paragraph of its decision ([21]), the Tribunal formulated its overall conclusion in the following way:-

The power to issue summonses is conferred upon the Registrar of the Tribunal pursuant to s.84 of the Tribunal’s enabling legislation. Accordingly, the issue of the summonses requested by the applicant is referred to the registrar for final determination in accordance with the Act.

43 Order 1 made by the Tribunal related to the summonses to attend and give evidence addressed to Mr Davison, Mr Boggon, Ms Cvetkovic and Ms Giffin. It commenced with the words ‘Summonses may be issued at the request of the applicant…’

44 Orders 2, 3 and 4 related respectively to the summonses to produce documents addressed to Telstra Corporation Ltd, New South Wales Health and the RTA. Each of them commenced with the words ‘A summons may issue at the request of the applicant…’ The range of documents required was limited in each case as indicated in the Tribunal’s decision (see above at [35], [36] and [39]).

The appeal by HealthQuest (file 099012)

45 Although, as indicated above, the Appeal Panel heard AF’s appeal before HealthQuest’s appeal, it is convenient in these reasons to treat them in the reverse order.

46 In reaching its conclusions in both appeals regarding the four orders made by the Tribunal, the Panel has taken account of AF’s objections, outlined above at [27] and [33], to the summary of relevant facts contained in the Tribunal’s decision. Its conclusions are not dependent on acceptance of the Tribunal’s version of the contested factual matters. They would be the same if AF’s version were treated as correct. In this connection, it is important to note that the Tribunal’s summary was not, and did not purport to be, based on an assessment of all the evidence that the parties might wish to tender in these proceedings. It expressly stated at [4] that it had not reviewed the evidence filed by the parties.

47 The criterion of ‘relevance’ adopted by the Tribunal. A major contention advanced by Ms Lucy, who appeared for HealthQuest, was that the Tribunal applied an incorrect test of relevance in rejecting HealthQuest’s application to set aside the summonses. She relied on the principle that an applicant for the issue of a summons or subpoena must demonstrate a ‘legitimate forensic purpose’ (Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 574-575). This meant, she said, that the evidence sought must have an ‘apparent relevance’ to the issues to be resolved in the principal proceedings (Trade Practices Commission v Arnotts Ltd (No 2) (1989) 88 ALR 90 at 103, cited and applied by the Tribunal in New South Wales Bar Association v Archer [2004] NSWADT 38 at [43]). There must indeed be ‘reasonable grounds’ for believing that this evidence would ‘materially assist’ the case being made by the ‘summonsing party’ (O’Sullivan v Central Area Health Service [2005] NSWADT 16 at [26]). It was not enough to show that there was an ‘outside chance that something useful might turn up’ (Re Ridgeway [1998] SASC 6963 at [174]).

48 Ms Lucy submitted that, measured against what these authorities required, the different criteria stated by the Tribunal were unduly broad. It used phrases such as ‘possible relevance’ (at [14] and [15]), ‘a matter of convenience’ (at [16]), the existence of ‘some merit’ in relevant arguments, albeit that they are ‘not strong’, and the fact that production would not be ‘too onerous’ (at [17]), ‘potential relevance’ (at [19]) and ‘not difficult to see how the type of documents sought could possible assist’ the applicant (at [20]).

49 The arguments put on this matter by AF, who represented herself, acknowledged that summonses must be issued for a ‘legitimate forensic purpose’, but did not directly address the associated question of whether the criteria of relevance stated by the Tribunal were correct in law.

50 The Appeal Panel has given careful consideration to this question. In addition to the authorities cited by Ms Lucy, it has taken account of other formulations of the criterion of relevance that are usefully cited in Ritchie’s Uniform Civil Procedure NSW at [33.4.30] in the particular context of subpoenas to produce documents. They variously state that documents have sufficient relevance if (a) they ‘could possibly throw light on the issues in the main case’ (Trade Practices Commission v Arnotts Ltd (No 2) (1989) 88 ALR 90 at 103); (b) they are ‘necessary for fairly disposing of the proceedings’ (Arhill Pty Ltd v General Terminal Co Pty Ltd (1990) 23 NSWLR 545 at 556); (c) they have a ‘sufficient apparent connection’ with the issues in the proceedings (White v Tulloch (1995) 19 Fam LR 696 at 708); or (d) it is ‘on the cards’ that they would ‘materially assist’ the resolution of the issues in the proceedings (R v Saleam (1989) 16 NSWLR 14 at 18).

51 As the Tribunal pointed out in New South Wales Bar Association v Archer [2004] NSWADT 38 at [45], these formulations vary in breadth. One of them – the test stated in Arhill Pty Ltd v General Terminal Co Pty Ltd (1990) 23 NSWLR 545 – seems noticeably stricter or (as the Tribunal put it in Archer, ‘more guarded’) than, for instance, the test of ‘apparent relevance’ stated and explained in Trade Practices Commission v Arnotts Ltd (No 2) (1989) 88 ALR 90). As mentioned in Ms Lucy’s submissions, the Tribunal in Archer held the latter test to be applicable.

52 In the Appeal Panel’s opinion, the weight of authority favours a relatively broad criterion such as ‘apparent relevance’. Furthermore, the difference between a criterion of ‘possible’ or ‘potential’ relevance – which in substance was the test put forward by the Tribunal in the present case at [14], [15], [19] and [20] – and this criterion of ‘apparent relevance’ outlined in Trade Practices Commission v Arnotts Ltd (No 2) is insufficient to support the conclusion that the Tribunal erred in its statement of the law. The alternative formulation in the Arnotts case – whether the documents sought ‘could possibly throw light on the issues in the main case’ – is virtually synonymous with a test of ‘possible’ or ‘potential’ relevance.

53 On the other hand, the formulations stated by the Tribunal at [16] (‘a matter of convenience’) and at [17] (the existence of ‘some merit’ in relevant arguments, albeit that they are ‘not strong’, coupled with a requirement that production should not be ‘too onerous’) give cause for concern. The former, in particular, is on the face of it unduly broad. This concern gives grounds, presumptively at least, for setting aside the Tribunal’s orders (Orders 2 and 3) relating respectively to the two summonses to which these criteria were applied (i.e., the summonses to Telstra and New South Wales Health). As will appear below, there are other reasons why these two summonses are open to objection.

54 Whether the Tribunal should have directed, as opposed to merely approving, the issuing of the summonses. A second line of argument put by Ms Lucy was that the Tribunal erred in ruling (at [21]) that the issue of the summonses requested by AF should be ‘referred to the registrar for final determination’ in accordance with section 84 of the ADT Act. If it was minded not to set aside the summonses as sought by HealthQuest, it should, she submitted, have given a direction to the Registrar to issue them, not left the matter to the exercise of the Registrar’s discretion.

55 To a significant extent, this argument stemmed from the wording of section 84. So far as relevant for present purposes, this section states:-

84 Issue of summons

(1) A summons for the purposes of this Act may be issued by the Registrar:

(a) if the Registrar considers it appropriate to do so in the circumstances, on the application of a party to proceedings before the Tribunal, or

(b) at the direction of the Tribunal.

Note. The Registrar may refuse to issue a summons on the application of a party if the Registrar considers that it is not appropriate for a summons to be issued.

(2) Any such summons must be signed by the Registrar or as otherwise provided by the rules of the Tribunal.

(3) Any such summons may require a person to do any one or more of the following:

(a) attend and give evidence,

(b) attend and produce documents or other things….

(6) The Registrar may give directions with respect to access to documents or other things produced pursuant to a summons if no objection has been made to the summons.

56 Ms Lucy referred to clause 12 of the Tribunal’s Practice Note No. 7, which (as already mentioned) regulates the issue of summonses in matters arising under privacy legislation. This clause defines the role of a Tribunal member as one of ‘approving’ the issuing of ‘some or all’ of the summonses requested by a party, following which the party ‘can then apply to the Registrar for the approved summonses to be issued’.

57 According to Ms Lucy, the Tribunal, when performing this role, should in fact ‘direct’ the issuing of summonses, exercising the power conferred on it by section 84(1)(b). If it merely ‘approved’ or ‘authorised’ such a step, she said, the Registrar would retain the discretion to refuse to issue the summons in question. The legislature, she submitted, could not have intended that following a decision by the Tribunal that a summons should be issued, the Registrar would be entitled to decide not to issue it. Citing a number of authorities for the proposition that the word ‘may’ in a statute should, where the context requires, be interpreted as ‘must’, she argued that where the Tribunal exercised the power conferred by section 84(1)(b), the word ‘may’ in the opening words of the section should indeed to be construed in this way, irrespective of any contrary inference arising from the Practice Note.

58 In her submissions, AF contested this line of argument. She pointed out, amongst other things, that following ‘approval’ or ‘authorisation’ by a Tribunal member, there might well be grounds, of which the member was not made aware, on which the Registrar might appropriately decide that a summons should not be issued.

59 The opinion of the Appeal Panel on this question is as follows. The fact that, pursuant to the Practice Note or indeed in circumstances falling outside it, a Tribunal member has approved the issue of a summons for which a party has applied under section 84(1)(a) does not take the summons outside the category to which it initially belonged: that is, a summons falling under section 84(1)(a). While in theory the Registrar, relying on the word ‘may’ in the opening words of the section and on the power conferred by section 84(1)(a), might refuse to issue a summons on the ground that it was not ‘appropriate’, the section cannot be interpreted as entitling the Registrar to act in direct conflict with the Tribunal’s ruling. If the Tribunal has rejected a ground for setting aside a summons, such as the ground of lack of relevance put forward by HealthQuest in this case, the Registrar, as in many other circumstances envisaged in the ADT Act, is bound by the Tribunal’s decision. But if another ground for rejecting the summons, one not considered by the Tribunal, is advanced before the Registrar, the Registrar must be entitled to determine it on its merits.

60 For these reasons, the Appeal Panel rejects this ground of appeal put forward by HealthQuest.

61 Standing to object to a summons. In the Appeal Panel’s decision staying the operation of Orders 1 to 4 of the Tribunal’s decision (see [7] above), the question whether a party to proceedings had standing to object to the issue of a summons addressed to a non-party was briefly discussed (see Healthquest v AF [2009] NSWADTAP 31 at [19 – 21]). The Appeal Panel concluded that HealthQuest’s claim to have standing to set aside the summonses in this case was ‘at least arguable’.

62 This question was not canvassed at any length at the hearing of the appeals. It is clearly important since, if it were determined adversely to HealthQuest, this would be enough in itself to require dismissal of HealthQuest’s appeal. It would also be of direct relevance to the outcome of AF’s appeal.

63 The Appeal Panel, having examined the cases mentioned in the earlier discussion, has concluded that the weight of case-law authority is in favour of standing being accorded to a party in these circumstances, including where the ground, or one of the grounds, of objection to the summons is lack of relevance. It notes in particular that the cases supporting this proposition include two Supreme Court decisions: Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984] 3 NSWLR 98 and Joan Street & Ors v Luna Park Sydney Pty Ltd & Anor [2006] NSWSC 95.

64 Nothing in the statutory provisions governing the issuing of summonses in this Tribunal indicates that the answer given to the question in the case law is inapplicable. Indeed, the procedure laid down in clause 12 of Practice Note 7 for prior approval of the issue of summonses in Tribunal cases brought under privacy legislation implicitly suggests that at the planning meeting, case conference or directions hearing at which approval is sought by a party, the opposing party should be permitted to contest the question of relevance. As mentioned above at [22], the Practice Note expressly requires that the party seeking approval should ‘identify the relevance’ of the evidence sought.

65 The remainder of this discussion of HealthQuest’s appeal concerns grounds of appeal relating to individual summonses.

66 The summonses to Mr Boggon, Ms Cvetkovic and Ms Giffin. As indicated above, Mr Boggon and Ms Cvetkovic were employed by the RTA at the relevant time and Ms Giffin was employed by the RTA’s workcover insurer. Ms Lucy argued that even though these three individuals were involved in matters concerning AF in the ways indicated in the Tribunal’s decision at [14] and [15], the evidence that they might give could not assist AF in establishing any of the matters claimed by her.

67 With specific reference to the first of the six ‘contentions’ identified by the Tribunal (see [26] above), Ms Lucy argued that none of these three people could throw light on the question whether personal information or health information was, as AF maintained, collected by HealthQuest for an unlawful purpose and/or by unlawful means, so as to contravene section 8 of the Privacy Act and/or clause 1 of Schedule 1 of the Health Privacy Act. The fact that they were involved in the process whereby the RTA disclosed such information to HealthQuest was not enough to make their testimony relevant in the present proceedings, since the lawfulness of the RTA’s conduct in making this disclosure was not an issue to be determined. According to Ms Lucy, the evidence of people who did not work for HealthQuest could not materially assist this part of AF’s case.

68 In response, AF submitted that by virtue of the parts that they played in transmitting personal information and health information about her, the testimony of these three people would be highly relevant in showing that HealthQuest did indeed collect this information for an unlawful purpose and by lawful means. She also argued that this testimony was relevant to the present proceedings because of her allegation that their conduct in the matter amounted to ‘corrupt disclosure and use of personal information by public sector officials’ within the meaning of section 62 of the Privacy Act (as to which see [29] above).

69 In the Appeal Panel’s opinion, evidence given by people who, while not employed by HealthQuest, were directly involved in the transmission of personal information and/or health information to HealthQuest might well assist in determining whether the collection of this information by HealthQuest occurred for an unlawful purpose or by unlawful means. The proposition, advanced by Ms Lucy, that no-one other than HealthQuest’s employees could give evidence bearing on this question does not withstand close scrutiny. The possibility that Mr Boggon, Ms Cvetkovic and/or Ms Giffin, by virtue of their role in passing information regarding AF to HealthQuest, might be able to testify as to the purposes for which, and/or the means by which, HealthQuest collected the information cannot be discounted.

70 For this reason, it cannot be said that the Tribunal’s ruling that the testimony of these three witnesses would ‘possibly’ be of relevance in these proceedings was unsupportable having regard to the factual material on which it was based.

71 By virtue of this reasoning, HealthQuest’s appeal must be dismissed with regard to the Tribunal’s decision relating to the summonses to attend addressed to Mr Boggon, Ms Cvetkovic and Ms Giffin. It is unnecessary to consider Ms Lucy’s further submissions to the effect that their evidence could have no relevance to the determination of the remaining five ‘contentions’.

72 As to AF’s submission based on alleged breaches of section 62 of the Privacy Act, it is sufficient to say, in line with comments of the Tribunal at [11], that (a) the Tribunal has not been vested with any jurisdiction at all under this section, and (b) even if it was so vested, the question whether one or more persons contravened the section is not a matter for determination in these proceedings.

73 The summons to Telstra. Ms Lucy raised four contentions bearing specifically on this summons, which sought production of Telstra’s records of three telephone calls occurring during October 2007. These were (1) that the test of ‘convenience’ applied by the Tribunal when considering it was manifestly too broad; (2) that the Tribunal, having noted that the occurrence of the calls was not in dispute, should have held that a summons seeking evidence of their content had no legitimate forensic purpose; (3) that there was no real likelihood that Telstra’s records of the calls would include their content; and (4) that although AF seemed to believe that this content would assist a claim by her (to the effect that HealthQuest continued her health assessment after her resignation from the RTA on 14 September 2007), this claim fell outside the Tribunal’s jurisdiction because it related to events after the internal review of her initial complaint of breaches of privacy legislation (which took place in August 2007).

74 AF’s response to these arguments was that the content of the conversations was relevant in establishing the detriment that she suffered on account of the breaches of privacy legislation committed by HealthQuest.

75 The Appeal Panel has already held (see [53] above) that the criterion of ‘convenience’ stated by the Tribunal in this particular context was unduly broad. It also considers that the factual basis on which the Tribunal appeared to accept that Telstra’s records might include the content of the conversations – i.e. that AF was advised to this effect – is inadequate. Commonwealth legislation regulating telecommunications prohibits the recording of conversations unless appropriate permission is obtained. The Tribunal did not refer to any evidence indicating that permission was or might have been obtained.

76 In view of these two matters, the Appeal Panel upholds HealthQuest’s appeal in so far as it relates to the Tribunal’s order (Order 2) authorising the issue of the summons to Telstra Corporation Ltd requested by AF. It is not necessary to rule on the two other matters raised by Ms Lucy.

77 The summons to New South Wales Health. HealthQuest’s appeal regarding this summons related to the Tribunal’s ruling that the summons should remain on foot so far as it required production of records relating to the establishment of the HealthQuest Board in 2006 and 2007. The Tribunal’s disallowance of the summons in so far as it required production of documents relating to HealthQuest’s accreditation was the subject of challenge by AF in her appeal.

78 Ms Lucy submitted that the decision requiring production of documents relating to the establishment of the HealthQuest Board should be set aside for two reasons. First, the criteria of relevance applied by the Tribunal in this context were unduly broad (the Tribunal said at [17] that there was ‘some merit’ in relevant arguments, albeit that they were ‘not strong’, and that production would not be ‘too onerous’). Secondly, the question whether HealthQuest’s Board was properly constituted during the period of its alleged breaches of privacy legislation was not relevant at all in determining whether such breaches actually occurred.

79 AF argued that if in fact HealthQuest’s Board was improperly constituted at the time when it collected personal information and health information relating to her, it followed that this collection was carried out by ‘unlawful means’, within the meaning of section 8 of the Privacy Act and clause 1 of Schedule 1 of the Health Privacy Act. She did not cite any authority supporting this proposition.

80 For reasons already given (see [53] above), the Appeal Panel agrees with Ms Lucy’s first submission.

81 Her second submission requires further consideration. As mentioned earlier, HealthQuest is a statutory health corporation constituted under section 41 of the Health Services Act 1997. Schedule 2 identifies its Board as its governing body. As far as the Appeal Panel can discern from an examination of this Act, it contains no provision indicating expressly or by implication what consequences follow if at any given time it has no properly constituted Board. It would seem relevant, however, that section 51 provides in subsections (6) and (7) for the ‘affairs’ of a ‘Board governed health corporation’ to be ‘managed’ by its chief executive, subject to ‘the control and direction’ of the Board.

82 The proposition urged by AF, if correct, would seem to have the effect that any act by HealthQuest, or indeed any other ‘Board governed health corporation’, during a period when it had no properly constituted Board would have to be characterised as done ‘by unlawful means’.

83 The Tribunal stated in its decision that arguments to this effect ‘do not appear to be very strong ones’, though there was ‘some merit’ in them. In the Appeal Panel’s opinion, however, such an argument should not be accepted as the basis for requiring documents to be produced under summons in the absence of any support whatever from relevant statutory provisions or case law. A ‘legitimate forensic purpose’ is not established if the alleged link between the factual matters sought to be proved and the legal consequences claimed to follow from them is distinctly implausible.

84 For these reasons, the Appeal Panel upholds HealthQuest’s appeal in so far as it relates to the Tribunal’s order (Order 3) authorising the issue of a summons to New South Wales Health requiring the production of documents relating to the establishment of the HealthQuest Board.

85 The summons to the RTA. The Tribunal, in its decision at [19] (this paragraph is reproduced above at [39]), listed the four categories of documents to which this summons applied. In her oral submissions, Ms Lucy conceded that documents within the second category had sufficient relevance to the proceedings to be included in a summons, except for those postdating the internal review of AF’s complaint. But she argued that documents in the other three categories did not satisfy the test of ‘apparent relevance’.

86 Her submissions here resembled those advanced by her with regard to the summonses issued to Mr Boggon, Ms Cvetkovic and Ms Giffin. They were to the effect that documents of the RTA recording its request to HealthQuest for an assessment of AF, or relating to communications between AF and specified employees of the RTA or of its workcover insurer, or between these employees, clearly lacked apparent relevance because what mattered in this case was the activities of HealthQuest in collecting and using information about AF.

87 In the opinion of the Appeal Panel, this line of argument is unpersuasive for the same reasons as apply to its dismissal of HealthQuest’s appeal relating to the summonses to Mr Boggon, Ms Cvetkovic and Ms Giffin. The Tribunal did not commit appealable error, either with regard to the criterion of relevance that it adopted in this context, or in applying this criterion.

88 The summons to Mr Davison. This summons was not specifically addressed in the appeal. The Tribunal’s order relating to it should remain on foot.

89 The outcome of HealthQuest’s appeal. This appeal is allowed in part. Approval should be denied to the issue of the requested summons to Telstra Corporation Ltd and to the issue of the requested summons to New South Wales Health, in so far as this summons required the production of records evidencing the establishment of the HealthQuest Board. The appeal fails in so far as it challenges the Tribunal’s approval of the requested summonses to Mr Davison, Mr Boggon, Ms Cvetkovic, Ms Giffin and the RTA.

The appeal by AF (file 099008)

90 Although (as Ms Lucy pointed out) the Tribunal’s decision was largely favourable to AF, her appeal raised a number of contentions relating both to the decision and to the conduct of the appeal proceedings.

91 The summons to New South Wales Health. As already noted, the Tribunal’s decision reduced the scope of the summons addressed to New South Wales Health by ruling that the production of documents relating to the accreditation of HealthQuest should not be required.

92 AF claimed that this ruling was not warranted, for essentially the same reason as applied to production of documents relating to the establishment of HealthQuest’s Board. She asserted that an examination of the circumstances of the non-accreditation of HealthQuest might reveal grounds for concluding that its collection of personal information and health information relating to her was carried out ‘by unlawful means’.

93 In the Appeal Panel’s opinion, however, this claim fails for essentially the same reason as applied to the requirement in the summons that documents relating to HealthQuest’s Board should be produced. Indeed, in the present instance the alleged link between the relevant factual matter (namely, that HealthQuest was not accredited) and the legal result sought to be proved (that information was collected by unlawful means) seems even more tenuous. Nothing was put before the Tribunal or the Appeal Panel to indicate what form of ‘accreditation’ was in issue.

94 This part of AF’s appeal accordingly fails.

95 The summons to the RTA. AF argued that the Tribunal erred by ‘varying’ the summons addressed to the RTA. She claimed that it did this in the following passage (at [18]):-

Parts of the proposed summons cover an extensive period, that between April and November 2007. However, the summons specifies clear criteria by which the documents sought may be ascertained so that it may well be that the RTA is able to manage compliance within reasonable limits. Whilst this remains to be seen, it may well be that compliance with the summons may be achieved by the production of specific files containing the relevant records.

96 It is clear to the Appeal Panel, however, that the Tribunal did not vary the terms of the summons. Its order (Order 4) was that a summons may issue to the RTA ‘to produce documents as set forth in the schedule to the draft summons to the RTA contained in exhibit A3’. In the passage quoted, the Tribunal merely recorded some observations as to what might constitute compliance with the summons.

97 This ground of AF’s appeal is accordingly rejected.

98 The accuracy of factual statements made by the Tribunal. As explained above at [27] and [33], AF maintained that the Tribunal’s statements regarding relevant factual matters were inaccurate in a number of respects. She argued that these ‘decisions’ of the Tribunal were open to be corrected by the Appeal Panel in appeal proceedings and that the Panel should make orders to this effect. She claimed that if this were not done she would suffer significant prejudice, both in these proceedings and in other contexts.

99 In support of this argument, AF relied on the broad range of matters contained in the definition of ‘decision’ in section 6(1) of the ADT Act. This states as follows:-

(1) General meaning

A decision includes any of the following:

(a) making, suspending, revoking or refusing to make an order or determination,

(b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission,

(c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument,

(d) imposing a condition or restriction,

(e) making a declaration, demand or requirement,

(f) retaining, or refusing to deliver up, an article,

(g) doing or refusing to do any other act or thing.

100 This argument fails, however, to take account of the fact that under section 113 of the ADT Act, an appeal can only be made against an ‘appealable decision’, as defined in section 112. The definition in section 112 includes ‘a decision of the Tribunal… made in proceedings for…a review of a reviewable decision’. The proceedings in this case fall within the Tribunal’s jurisdiction to review a ‘reviewable decision’ of an administrator as defined in section 8 of the ADT Act: see PC v University of New South Wales (No 2) [2005] NSWADT 264 at [27 – 42].

101 It is clear from the terms of section 112(2) and from relevant case law (see for example Lloyd v Veterinary Surgeons Investigating Committee & Anor [1999] NSWCA 68 at [23]; Sullivan v Adt [2000] NSWSC 386 at [4]) that interlocutory as well as final decisions may be ‘appealable decisions’. But the phraseology of subsections (2) to (6) of section 6 (in which terms such as ‘decision under an enactment’ and ‘decision-maker’ are to be found) and also of sections 8 and 9 indicates that the primary range of application of the broad concept of ‘decision’ in section 6(1) is to decisions of administrators that may be subject to Tribunal review under section 8. A ‘decision’ of a person such as an administrator under section 6 is not the same as an ‘appealable decision’ of the Tribunal under section 112.

102 If, contrary to the Appeal Panel’s opinion on this matter, each of the factual statements by the Tribunal to which AF has objected is in itself an ‘appealable decision’, the Panel would in any event refuse leave under section 113(2)(b) of the ADT Act for AF’s appeal to extend to the merits of these statements. It would refuse leave because, as pointed out above at [46], these statements were not, and did not purport to be, based on an assessment of all the evidence that the parties might wish to tender in these proceedings. At most, they constituted provisional findings from which the Tribunal’s determination regarding the summonses could proceed. No useful purpose whatever would be served by reviewing their accuracy at the present stage of the proceedings.

103 It is to be hoped that by both drawing attention to the provisional nature of the Tribunal’s factual summary and recording AF’s objections to it, this judgment of the Appeal Panel will allay, at least to some extent, her concern that the alleged inaccuracies in the summary are prejudicial to her.

104 A further error of the Tribunal to which AF referred was its citation of the wrong number (68 instead of 62) for a section of the Privacy Act on which she relied. This may well have been just a typographical error. But since, as explained above at [72], the Tribunal has no jurisdiction to deal with the subject-matter of section 62, the error has no implications of significance.

105 For the foregoing reasons, this ground of AF’s appeal is rejected.

106 Procedural matters. Finally, AF claimed that she had been unfairly treated as a result of three procedural defects affecting the Tribunal proceedings or the appeal proceedings.

107 First, she asserted that since at the hearing on 2 December 2008 of HealthQuest’s objections to her draft summonses the Tribunal had admitted as ‘exhibit A3’ copies of the summonses supplied by HealthQuest (the originals having apparently been mislaid in the Registry), the Tribunal might have based its decision on incorrect documents. On 9 December 2008, AF filed further written submissions to which fresh copies of the draft summonses were attached.

108 The Appeal Panel has satisfied itself that the copies of the summonses to Telstra, New South Wales Health and the RTA that were admitted as exhibit A3 are identical to the copies that AF filed on 9 December 2008. It notes also that in the Tribunal’s decision at [1] reference was made to the ‘further written submissions’ filed by AF on 9 December 2008. For these reasons, it rejects AF’s argument that the Tribunal might have based its decision on incorrect versions of the summonses.

109 Secondly, AF argued at length that she was unfairly prejudiced by Magistrate Hennessy’s rejection (at the directions hearing on 31 March 2009 – see [6] above) of her application for a transcript of the Tribunal hearing on 2 December 2008. The Appeal Panel does not accept this argument. It observes that (a) the Tribunal as a matter of general policy does not provide transcripts to parties save in exceptional circumstances; (b) the hearing in question did not involve any examination or cross-examination of witnesses; and (c) the task of the Appeal Panel in these two appeals has been to determine whether various alleged errors of law are discernible in the Tribunal’s decision.

110 Thirdly, AF submitted that it was improper for the legal representative of HealthQuest at the Tribunal hearing to, in effect, represent New South Wales Health in maintaining that the summons to this organisation should not be issued. This submission fails, however, by virtue of the above ruling (at [63]) that HealthQuest, as a party to the proceedings, has standing to challenge summonses addressed to non-parties such as New South Wales Health.

111 For the foregoing reasons, AF’s appeal must be dismissed.

112 The proceedings are remitted to the Tribunal for further consideration at a planning meeting already listed at 12.30 p.m. on 22 July 2009.

24/09/2009 - Paragraph 41 Omitted reference to paragraph number Paragraph 27 amend word 'her' to 'the Chief Executive Office of Healthquest' - Paragraph(s) paragraph 27 and 41