Roads and Maritime Services v AF; AF v Roads and Maritime Services (GD)

[2011] NSWADTAP 63

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

Roads and Maritime Services v AF; AF v Roads and Maritime Services (GD) [2011] NSWADTAP 63

Hearing dates:

12 September 2011

Decision date:

21 December 2011

Jurisdiction:

Appeal Panel - Internal

Before:

Judge K P O'Connor, President
S Montgomery, Judicial Member
M Bolt, Non-judicial Member

Decision:

Appeal no. 119016 (by the agency)

1. The appeal is allowed in respect of the Tribunal's decisions to allow summonses to Mr Bushby, Mr Job and Mr Tout. The summonses are set aside.

2. The appeal is not allowed in relation to the decision affecting Mr Boggon.

Appeal no. 119020 (by the review applicant)

3. The appeal is dismissed.

Further Orders

4. The review applications are remitted to the Tribunal differently constituted.

5. The Tribunal is to hold its own directions hearing as soon as practicable.

Catchwords:

PROCEDURE - Summonses - Interlocutory Appeal - Approval sought by review applicant for summonses to agency officers and other bodies - Tribunal approved some and refused others - Relevant principles especially in privacy review cases - Agency appeal allowed in part - Review applicant's appeal disallowed - Administrative Decisions Tribunal Act 1997, s 84.

Legislation Cited:

Administrative Decisions Tribunal Act 1997
Health Records and Information Privacy Act 2002
Privacy and Personal Information Protection Act 1998

Cases Cited:

AF v HealthQuest (GD) [2009] NSWADTAP 42
AF v Roads and Traffic Authority [2011] NSWADT 69
R v A and B [1999] NSWADTAP 2
Vice-Chancellor Macquarie University v FM [2005] NSWCA 192
Waind v Hill and National Employers Mutual General Association Ltd [1978] 1 NSWLR 372

Category:

Procedural and other rulings

Parties:

Roads and Maritime Services (Appellant)
AF (Respondent

Representation:

P Gunning, Mallesons Stephen Jaques (Appellant)
In person (Respondent)

File Number(s):

119016 and 119020

 Decision under appeal 

Citation:

AF v Roads and Traffic Authority [2011] NSWADT 69

Date of Decision:

2011-04-05 00:00:00

Before:

General Division

File Number(s):

073135 and 073275

REASONS FOR DECISION

1. Ms AF is an applicant for review in applications brought under the Privacy and Personal Information Protection Act 1998 (PPIP Act) and the Health Records and Information Privacy Act 2002 (HRIP Act). She is a former employee of the Roads and Traffic Authority.

1. The applications are at the pre-hearing stage before the General Division of the Tribunal. Both parties have appealed to the Appeal Panel against summons rulings made by the Tribunal. See AF v Roads and Traffic Authority [2011] NSWADT 69 (5 April 2011). The agency appeal is no. 119016, Ms AF's appeal is no. 119020. (When the applications were filed in 2007 the respondent agency was the Roads and Traffic Authority. The Authority's functions have recently been absorbed into a new government agency, Roads and Maritime Services, so the party name for this case has been altered to reflect that change. We will refer to the parties in these reasons as 'the applicant' and 'the agency'.)

1. Being interlocutory appeals, they require the leave of the Appeal Panel to proceed. On this occasion directions were given for the leave and substance of both appeals to be considered in the one hearing. An appeal is confined to questions of law, unless the Appeal Panel gives leave to extend the appeal to the merits. Both parties have nominated questions of law and applied for extension to the merits. See generally, Administrative Decisions Tribunal Act 1997 (ADT Act), ss 112, 113. To expedite the matter, it will be seen below that we have extended the appeal to the merits, and set aside some of the summons decisions.

1. The appeals were heard on 12 September 2011.

Further Attempt at Mediation

1. Towards the close of the appeal hearing we canvassed with the parties the possibility of one further attempt at private resolution of the dispute. The case has already been with the Tribunal for about four years, it is still at the interlocutory stage, there are voluminous filings, the costs on the agency side must be considerable with the agency having briefed the matter out and experienced counsel retained, and there have been (we were informed) nine decisions in the Industrial Relations Commission dealing with the case brought by the applicant in relation to the cessation of her employment.

1. As a consequence, we directed the Registrar to convene a voluntary mediation session of one day's duration. If the mediation session failed to resolve the dispute, we foreshadowed that this decision would be published and an order for remittal with time lines would be given.

1. We reserved the costs of the appeal as follows: reserve the agency's costs of today in respect of its appeal and in defending the cross-appeal; and reserve the applicant's costs of today in respect of her appeal and in defending the cross-appeal.

1. The mediation session proceeded on 17 October 2011. While the mediator reported some apparent progress, we have now been informed that the attempt at mediation has been unsuccessful.

1. In these circumstances, we have proceeded to issue these reasons, and make, as indicated at the appeal hearing, the directions which appear at the end of these reasons which include basic timings as to the final hearing at first instance and the issuance of a final decision. These, we hope, will bring some end to this dispute at first instance.

Background

1. The applicant is a professional engineer. Between 2003 and 2007, she was employed by the agency.

1. There were a number of workplace events affecting her. She made complaints alleging misconduct by other officers, some officers made similar complaints against her. She took leave for health reasons. She made claims for workers compensation that were refused. She was the subject of redundant officer procedures, she sought redeployment and promotion and she declined to present for a HealthQuest assessment. After declining to undergo the HealthQuest assessment, the agency commenced a disciplinary process. She resigned on 11 September 2007, and the disciplinary process ended.

1. Previously, on 8 May 2007, she had applied to the Tribunal under the PPIP Act for review of certain of the agency's conduct. This was followed by a further application on 17 September 2007 made under the HRIP Act. The two applications refer to a common set of events.

1. The PPIP Act requires agencies to comply with statutory standards in relation to the handling of the 'personal information' of individuals (the main standards are the Information Protection Principles set out in ss 8-18 of the Act). The HRIP Act requires agencies to comply with statutory standards in relation to the 'health information' (the main standards are the Health Privacy Principles set out in Schedule 1). Those standards displace the PPIP Act standards where 'personal information' fits the definition of 'health information'.

1. This distinction provides the explanation for the not unusual practice of applicants bringing two review applications in cases where the affected 'personal information' might be seen as constituting 'health information'.

1. The complaints refer to events beginning June 2004 and ending in November 2007.

The Complaints, an Outline

1. The applicant's complaints are divided into seven headline complaints: complaints 1 to 5 are raised by the application filed under the PPIP Act; complaints 6 and 7 by the HRIP Act review application. We note that the number sequence is not in order of time. They are dealt with in numerical order in the decision under appeal. We feel they are better approached in a chronological order. Moreover complaint 3 has 4 components. It is helpful to see them as 10 complaints.

1. Ordered by reference to time, the complaints have the following sequence:

Complaint #3.3 : agency disclosure practices in the period June 2004-August 2005 :

This is the period of the internal investigation of complaints of misconduct made by the applicant against others, and by others against the applicant. The applicant disputes the lawfulness of many of the disclosures that occurred. The agency's position, as we understand the material at this stage, is that the disclosures that occurred (to investigators engaged by the agency, to external lawyers and to the applicant's union representative) were lawful.

Complaint #4 : placement of WorkCover certificates in the applicant's personal staff files: 2004-2005 .

As we understand the material, she is concerned that WorkCover medical certificates were present on her two general employment files, 'personal file' S 54712 and 'skill hire file' SH 45030. The certificates were removed following her request on 29 November 2005.

The applicant's complaints go to such matters as why those placements occurred and who saw this material and how often. These are essentially security safeguards issues, as we see it. The RTA's position is that it was justified in placing the material on the files because of their connection to such matters as non-routine leave and fitness for employment advice.

Complaint #5 : alleged disclosure of personal information to Union official and another person: 14 June 2005 : The complaint is that the General Manager, Human Resources Dept (Mr Boggon) briefed the applicant's Union Representative and a staff member, Mr Ormiston, re the outcome of an internal investigation of alleged misconduct by AF and disclosed confidential information. The occurrence of a discussion with the Union Representative is acknowledged, but it is argued that it was lawful. As to the alleged communication with Ormiston, the occurrence of the conversations and consequently any impermissible disclosure is denied.

Complaint #2 : referee contact issues: April 2006 : After the assessment panel's interview in relation to the applicant's Project Engineer application, the panel contacted three of her named referees. She has concerns over what personal information about her was discussed and why. [The agency raises a jurisdictional objection (not yet addressed) that the exception from the meaning of 'personal information' referring to information relating to suitability for employment takes this outside the scope of the PPIP Act.]

Complaint #3.1 : response to request for access: exempted documents (May 2006).

This is a major item in its own right. The agency has identified 2239 pages of documentation as responsive to an access to documents application made by the applicant. The agency claimed exemption for 411 pages under the FOI Act. A later internal review released 333, therefore the net withheld is 78. The agency refers in its statement of issues to the number, 90 [not 78], as having been 'withheld' but says they were given to IRC under subpoena sought by the applicant.

Complaint #3.2 : request to the agency for information re its internal administrative practices. As best we understand it, this particular request formed part of the larger Request for Access to documents referred to in #3.1. The applicant appears to have asked for information about where in the agency her documents are held and who has access to them. The agency did not give her that information.

Complaint #3.4 : internal processing of health documents released in response to her access request - May 2006 : This is another aspect of the Request for Access referred to at #3.1. As we understand it, the objection is that the agency went too far in including in its response to her Request for Access her health records, i.e. they 'over-reached'. Further, the applicant complains, as we understand it, that it was not appropriate for the documents to pass through the Human Resources Dept before being moved on to the Record Access Unit for final processing. The issue goes basically to internal security practices. The agency denies any breach.

The applicant also raises the issue of the handling of the documents by untrained (etc) staff of the Human Resources unit.

Apart from the security safeguards issue, there is the antecedent issue of alleged misinterpretation of the scope of the request. The agency says they reasonably interpreted the request, and sought to act in the spirit of the law.

Complaint #1 : the fax machine incident ( June 5/6, 2006 ).

The applicant sent her appeal documents for the CEO, Mr Bushby's consideration. She transmitted them by fax to a number given to her by an agency officer, but it was not the correct one. The documents were exposed on the fax, at least overnight. The applicant raises concern over who saw the documents and therefore her personal information, and other issues such as security practices.

Complaint #7 : use of WorkCover certificates and handling by certain employees: 20 July 06-18 June 07 .

The focus here is the continued use of the workers compensation certificates after the claim was declined. In this period the applicant was the recipient of the 'return to work services' provided by the agency to employees who have had a claim declined. She also continued on sick leave. She supplied the certificates in connection with her sick leave claims.

The applicant's objection, as we understand it, is that the certificates should not have been provided to the separate Injury Management and Claims Services Section of the agency nor in particular to the Manager, Workplace Conduct. The agency's position is that the actions were lawful, having regard to the need for such certificates in connection with continued sick leave and the role of the Manager mentioned as the applicant's contact person in relation to all human resources-related matters. There are disputes of fact as to certain matters, especially when was the applicant informed of the agency's practices. Security issues are also raised.

Complaint #6 : referral and provision of information to HealthQuest: June 2007 .

At this point the applicant was an 'excess officer' and had been on sick leave since 31 May 2006. The RTA referred her to HealthQuest to assess her fitness to continue duties. It provided HealthQuest with her medical certificates. She did not obey a formal direction to attend. This led to disciplinary action and the tender of her resignation on 11 September 2007. The agency contends that its conduct was lawful.

Tribunal Decision

1. The applicant initially sought 16 summonses to witnesses to attend and give evidence and 4 summonses for production of documents (Tribunal reasons [27]). Two of the witness summonses are no longer pressed (see [27]), leaving 14 in dispute.

1. Applicants for summonses to be issued must obtain the approval of the Registrar or the Tribunal. Section 84 of the ADT Act provides:

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.

(4) A person who, without reasonable excuse, fails to comply with the requirements of a summons is guilty of an offence.

Maximum penalty: 100 penalty units.

(5) A summons may be served within or outside the State.

(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.

1. The Tribunal ruled that the following persons, all officers of the agency at the relevant times, could give evidence of 'apparent relevance' to the matters raised by the review applications: Mr Boggon (General Manager, Human Resources Department, signatory of referral to HealthQuest, relevant to complaint 6, as numbered by the Tribunal), Ms Cvetkovic (officer of the agency, recipient of information from the WorkCover insurer, relevant to complaints 6 and 7), Mr Tout (officer of the agency, signatory of file note referring to placement of information about the applicant on a particular file, relevant to complaint 4), Mr Job (officer, signatory of an assessment of the applicant that occurred as part of the redeployment process, relevant to complaint 2), Mr de Roos (officer, who made contact with referees, relevant to complaint 2), Ms Dooley and Ms Yen Phu (officers connected with the applicant sending her health information to the wrong fax number, relevant to complaint 1) and Mr Bushby, CEO (the intended recipient of the misdirected fax, relevant to complaint 1). These rulings therefore allowed summonses to go to 8 of the 14 witnesses.

1. The Tribunal then gave reasons as to why it was not satisfied that a further 4 should be called: Mr Davison, CEO, HealthQuest, and his successor, Ms Hennessy (said to be relevant to complaint 6), Mr Youngman (agency officer responsible for internal review of the applicant's applications under the two Acts to the agency), and Ms O'Toole (officer, HealthQuest, author of a report to the agency made 2 months after the applicant resigned). The remaining two persons were dealt with in the context of the document summonses.

1. In relation to the document summonses, the applicant did not eventually press an application in respect of HealthQuest (reasons, [38]), and another addressed to NSW Health was refused on the basis that it did not go to a relevant issue ([38]).

1. The remaining summonses start with a document summons addressed to the union to which the applicant belonged (the Association of Professional Engineers, Scientists and Managers Australia (the Union)) and a witness summons addressed to an officer, Ms Bennett (said to be relevant to complaint 3). These summonses were allowed, with the document summons subject to some limitations.

1. The next summons was a witness summons to the then occupant of the office of Privacy Commissioner, Ms O'Dowd. This summons was refused.

1. The final summons was to the agency, in consequence of the applicant's view that many of the relevant documents were not included by the agency in the lodgement of all its relevant material as required by s 58 of the ADT Act. The Tribunal deferred ruling on this application until all other evidence had been filed.

1. So the net position is that the Tribunal allowed 9 witness summonses and one document summons. It disallowed 5 witness summonses and 3 document summonses.

Scope of Appeals

1. The agency has appealed against the Tribunal's ruling as it relates to 4 of the summonses to attend. The appeal relates to the decisions as they affect Mr Bushby, Mr Boggon, Mr Job and Mr Tout.

1. There is no appeal in respect of the rulings as they affect Ms Cvetkovic, Mr de Roos, Ms Dooley and Ms Yen Phu. There is no appeal in relation to the one document summons allowed (to the Union) or to the related witness summons (to Ms Bennett).

1. The applicant has appealed against the Tribunal's ruling refusing her witness summonses to the three officers of HealthQuest (Mr Davison, Ms O'Toole and Ms Hennessy) and Ms O'Dowd and the ruling deferring consideration of the document summons to the agency. The appeal also challenges the restrictions placed on the summons to Ms Bennett (order 2), the restrictions placed on the Union summons (order 3) and in relation to other matters that the applicant asserts were the subject of applications by her in the course of the proceedings before the Tribunal (order 5).

The Relevant Principles

1. In this case the applicant puts in issue a series of interactions with her that are spread over four years. We have given a summary account of the complaints above.

1. The Tribunal's procedural framework is provided by Chapter 6 of the ADT Act. It seeks to give specific expression to the Parliament's goals in creating new administrative review rights. The Parliament's goals for the Tribunal include that it is 'accessible, that its proceedings are efficient and effective and its decisions are fair' (s 3(b)), and that it 'enable proceedings before the Tribunal to be determined in an informal and expeditious manner'. The provisions of Chapter 6 include a flexible statement as to the procedures the Tribunal may follow and how it might organise its business (s 73), a rule that ordinarily each party bears their own costs of proceedings (s 88), and, relevantly to this case, controls on the issue of summonses by parties (s 84).

1. The privacy laws contain detailed standards in relation to the handling of personal and health information.

1. This case puts in issue ten sets of circumstances over a period of four years. Inevitably, there will have been many employees with some degree of involvement in those circumstances.

1. The scheme of both privacy laws under notice in this case requires the aggrieved individual first to complain to the agency, and then requires the agency to undertake an internal review of the conduct the subject of complaint. See PPIP Act, s 53; HRIP Act s 21 adopting PPIP Act, s 53. The agency is in the best position to make the initial examination of the subject-matter of the complaint. The agency is obliged to furnish to the Tribunal all material in its possession relevant to the review application (ADT Act, s 58).

1. The internal review report and the s 58 documents should, we consider, normally be sufficient for the Tribunal to undertake the process of review of the conduct under notice. At hearing the applicant submitted that the Tribunal had misunderstood her case, and the nature of the evidence or material that was already filed as to the relevance of particular witness attendance summonses or document summonses.

1. The facts as set out in the internal review report will, ordinarily, provide the main evidence for the Tribunal as to what occurred. It will not, as we see it, usually be necessary or desirable for the review applicant to seek to put on other evidence.

1. The review applicant would rarely be seized directly of evidence in reply to the agency's evidence. As has been noted by the Appeal Panel on previous occasions, the review applicant is often not in a position to have any direct knowledge of the internal administration of records of personal information.

1. The Tribunal should be cautious in allowing the hearing process in privacy cases to be used as a collateral way of revisiting the justification for the particular administrative decisions and the particular administrative processes to which the personal information transactions were regarded as relevant. In this case, for example, there was a misconduct investigation process and related decisions, consideration of redeployment including the involvement of the Union, sick leave issues, workers compensation issues and the circumstances of the referral to HealthQuest. We note that the applicant has a separate application for review proceeding in the Tribunal in relation to HealthQuest's compliance.

1. There is a real danger in cases with these characteristics that the summons mechanism will be used oppressively.

1. In dealing with summonses, the Tribunal has traditionally had regard to the well-known criteria of 'legitimate forensic purpose' or 'apparent relevance': see Waind v Hill and National Employers Mutual General Association Ltd [1978] 1 NSWLR 372 at 385; R v A and B [1999] NSWADTAP 2; and AF v HealthQuest (GD) [2009] NSWADTAP 42 (6 July 2009) at [52].

1. The Tribunal has acknowledged that when proceedings are in their early stages there may be difficulty in forming a view as to whether the oral testimony or documents sought by a summons fall within the boundaries of the case.

1. That task should, we think, be less difficult in review proceedings where already a significant body of relevant material is known and clearly identified. In the privacy review jurisdiction ordinarily the body of data about the complainant and to which legal responsibilities attach will be in recorded form. The jurisdiction does not ordinarily involve itself with oral communications or information held in the memory of an officer that has not been reduced to recorded form (see Vice-Chancellor Macquarie University v FM [2005] NSWCA 192). Those records should be able to be assembled and uplifted by the agency. There would need, as we see it, to be some anomaly apparent to the Tribunal on the face of those records before it would interest itself in the question of whether there are other records missing (and to which summonses may seek to go) from the material identified by the agency.

1. Privacy cases can involve the need to scrutinise a series of transactions, but there must, as we see it, be some material that justifies going behind the account given in the internal review report as to the conduct of the agency. In this regard we are referring to the factual circumstances of the conduct.

1. There is a separate issue always as to the lawfulness of the conduct revealed by those factual circumstances. In this regard sometimes agency witness evidence may be of value, for example in relation to the exercise of discretionary judgements as to such matters as 'the public interest', 'the protection of the revenue', 'the purpose of collection' and so on.

1. This evidence is well suited to being put on in affidavit form. In many cases the affidavits may well be sufficient, and any requirement for attendance at hearing would be dealt with by notices for cross-examination.

1. In our view, care must also be shown where the review applicant is, as is the case here, a litigant in person. There is an increased risk as compared to cases where a legal practitioner appears on behalf of the review applicant, of the examination and cross-examination of witnesses exceeding the bounds of relevance, respect and fairness expected to be observed by a legal practitioner.

1. The review applicant should have the opportunity to examine the persons directly involved in the transactions of which she complains if there is some cogent basis to indicate that their statements as recorded in the internal review report are in error or do not properly depict the transaction that is in issue. For example, the internal review report might find that a disclosure of personal information was recorded as made by the agency to external body A. It may be that there is some credible material to suggest that the log of disclosure failed to record disclosure to external body B. In that instance the Tribunal might wish to hear from a relevant officer, and the review applicant may be given leave to ask questions of the officer.

1. Care must be taken, as we see it, for the Tribunal not to accede to review applicant applications for witness summonses that are in the nature of fishing expeditions based on suspicion, speculation or the attribution of corrupt motives.

Consideration

1. In our view, it is not necessary to give extended consideration to the many issues canvassed by both parties in their notices of appeal.

1. As to the applicant's case, in our opinion the Tribunal ruled appropriately in relation to the summonses denied to her. They were all people or bodies of documents external to the agency. There would rarely if ever be a case for having people external to an agency called in a privacy review application. The focus of a privacy review application is the conduct of the agency, that is all. Similarly it ruled appropriately on the document summonses for similar reasons. In the case of the summons to the agency it was right, as we see it, not to consider going down that path until all the agency evidence has been filed.

1. We will now turn to the agency appeal on the rulings that affected Mr Bushby, Mr Boggon, Mr Job and Mr Tout. It is submitted that all four were in senior manager roles with practical administration being carried out by more junior staff. It is submitted that they can add little or nothing to the evidence that will be given by those staff.

1. Mr Bushby was the chief executive officer of the agency. In our view, great caution should be exercised before approving a summons directed to having a head of agency (or a Minister) called to give evidence. In this case the relevant complaint goes to an admitted mistake. The agency gave the applicant the wrong fax number for Mr Bushby leading to the documents being exposed in an insecure way. The officers directly connected with this event are to be called.

1. Mistakes of the kind that occurred in this case may reflect a failing in security practices in an agency. But there is nothing in the Tribunal's reasons or the applicant's submission which explains to our satisfaction why Mr Bushby would need to attend to address an agency issue of this kind.

1. We also think that the Tribunal's discretion miscarried in relation to the summonses to Mr Job and Mr Tout.

1. Mr Job was one of the group of senior officers that were deputies to Mr Bushby. He was the NSW director for road safety. His delegate was Mr de Roos for the purpose of the appointment process affecting the applicant, about which she complains. Mr de Roos is to give evidence. We agree with the agency's submissions that at this stage there is no useful purpose to be served by having Mr Job summoned.

1. Mr Tout was on the same line as Mr Job and an immediate deputy to Mr Bushby. He held the position of director of corporate services. Again the matters raised by the applicant in relation to the handling of her personal information by corporate services officers did not implicate Mr Tout. We agree with the agency's submissions that Mr Tout was simply the signatory to a set of reasons for decision responding to her privacy complaints. The internal decision maker should not be called to justify their decision.

1. As we see it, the position in relation to Mr Boggon (General Manager, Human Resources) is different. The agency conceded that Mr Boggon's evidence had relevance, but essentially has resisted the summons on the basis that he had given evidence and been extensively cross-examined in the HealthQuest proceedings, now concluded at first instance (and on appeal to the Appeal Panel).

1. The submission is essentially that it is unnecessary and would be oppressive to have Mr Boggon re-trace that ground in these proceedings, as they traverse the same conduct. In our view, given the concession that his evidence has relevance, it is better at this stage to allow the summons to stand, and for the agency to press any concerns with the Tribunal at hearing over any misuse by the applicant of the opportunity given to question Mr Boggon. It may be that the Tribunal will see value in having the transcript of the evidence in the other case, and restrict re-opening of that evidence.

1. The applicant's appeals against the scope of the restrictions on the summonses the subject of Orders 2 and 3 are rejected. The Tribunal adequately explains its reasons for restraint in these regards.

1. Finally we note that all these rulings are interlocutory in character, and it is open for them to be reconsidered as the case unfolds.

1. The member responsible for this case has retired from the Tribunal. As the case has not reached the stage of the substantive hearing we think it preferable for the case to be handled by a serving member. We will remit it to the Tribunal differently constituted.

1. We recommend to the judicial member to whom this case is assigned that he or she hold a Case Conference in January or February 2012 with a view to fixing the matter for hearing in April 2012. We would ask the member to deliver the decision not later than three months after the hearing is concluded.

Costs Applications and Costs Reserved

1. We will defer any further consideration of the costs applications until the matter is resolved at first instance. The parties have leave to re-open this appeal for this purpose when the matter is concluded at first instance.

ORDERS

Appeal no. 119016 (by the agency)

1. The appeal is allowed in respect of the Tribunal's decisions to allow summonses to Mr Bushby, Mr Job and Mr Tout. The summonses are set aside.

2. The appeal is not allowed in relation to the decision affecting Mr Boggon.

Appeal no. 119020 (by the review applicant)

3. The appeal is dismissed.

Further Orders

4. The review applications are remitted to the Tribunal differently constituted.

5. The Tribunal is to hold its own directions hearing as soon as practicable.

**********

Decision last updated: 21 December 2011