Appeal Panel - Internal CITATION: AVS Group of Companies Pty Ltd v Commissioner of Police, NSW Police Force (GD) [2010] NSWADTAP 61 (109035) FIRST APPELLANT AVS Group of Companies Pty Ltd SECOND APPELLANT Peter Sleiman RESPONDENT Commissioner of Police, NSW Police Force (109036) FIRST APPELLANT AVS Group Australia Pty Ltd PARTIES: SECOND APPELLANT Tony Sleiman RESPONDENT Commissioner of Police, NSW Police Force (109038) FIRST APPELLANT AVS Group of Companies Australia Pty Ltd SECOND APPELLANT Peter Sleiman RESPONDENT Commissioner of Police, NSW Police Force FILE NUMBER: 109035, 109036, 109038 HEARING DATES: 16 July 2010 SUBMISSIONS CLOSED: 23 July 2010 DATE OF DECISION: 10 September 2010 BEFORE: O'Connor K - DCJ (President); Fitzgerald K - Judicial Member; Bolt M - Non-Judicial Member CATCHWORDS: SECURITY INDUSTRY – Revocation of licences – Extent of Police Commissioner`s obligation to give reasons and disclose, or confirm the existence of, confidential information – Powers of Tribunal in that regard – Appeal by review applicants against various interlocutory rulings – Leave to appeal refused – Remitted – Security Industry Act 1997, s 15(6), s 29(3) DECISION UNDER APPEAL: Various preliminary rulings (August 2009 to May 2010) FILE NUMBER UNDER APPEAL: 093202, 093216 LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Security Industry Act 1997 AVS Group Australia Pty Ltd v Commissioner of Police, New South Wales Police Force (GD) [2010] NSWADTAP 26 AVS Group of Companies Pty Limited and Ors v Commissioner of Police and Anor [2010] NSWSC 109 AVS Group of Companies Pty Ltd & Anor v Commissioner of Police & Anor AVS Group Australia Pty Ltd & Anor v Commissioner of Police & Anor [2010] NSWSC 447 AVS Group of Companies Pty Ltd & Ors v Commissioner of Police, NSW (GD) [2009] NSWADTAP 48 AVS Group of Companies Pty Ltd v Commissioner of Police [2009] NSWSC 1391 CASES CITED: AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81 AVS Group of Companies Pty Ltd v Commissioner of Police, New South Wales Police Force [2009] NSWADTAP 52 AVS Group of Companies Pty Ltd v Commissioner of Police, NSW Police Force [2009] NSWADT 223 AVS Group of Companies v Commissioner of Police [2010] NSWSC 659 Commissioner of Police (NSW) v. Gray [2009] NSWCA 49 Commissioner of Police v AVS Group of Companies Pty Ltd v Commissioner of Police [2009] NSWSC 1408 APPELLANT K Oliver, counsel / S Laface, AJL Legal REPRESENTATION: RESPONDENT T Lynch, counsel / S Sivarajah, Crown Solicitor's Office ORDERS: 1. Appellant's application for leave to appeal refused. 2. Applications for review remitted to the General Division of the Tribunal for determination. Tribunal to conduct final hearing as early as practicable after the Court of Appeal delivers its decision in 2009/298022. REASONS FOR DECISION 1 The General Division of the Tribunal has before it two review applications relating to the revocation of master licences issued under the Security Industry Act 1997 (SI Act). The review applications, as the history below sets out in fuller detail, were filed on 30 July 2009 and 13 August 2009. On 13 August 2009 all revocations were stayed. The stays remain in force. The applications have yet to reach a final hearing in the General Division. There have been numerous interlocutory appeals and related proceedings, further explained below. 2 These appeals concern procedural rulings made by the General Division bearing on the extent to which the review applicants are entitled to be given the reasons for decision of the administrator, the Commissioner of Police, and the information on which he has relied; and related matters such as how the reasons and information on which they rely might be tested, if the review applicants are excluded from the process. 3 Section 113(2A) of the Administrative Decisions Tribunal Act 1997 (ADT Act) states that 'an appeal does not lie to an Appeal Panel of the Tribunal against the exercise of an interlocutory function (within the meaning of section 24A) by of [sic] the Tribunal except by leave of the Appeal Panel'. A number of specific matters are listed as 'interlocutory' in s 24A. These rulings do not belong to any of the specific categories. They are all instances falling into the final catch-all category of an 'other interlocutory issue before the Tribunal'. 4 The Commissioner of Police has objected to the grant of leave to appeal these matters. There is an order on foot at the moment from the Supreme Court made 18 June 2010 staying, one, the hearing of an application by the Commissioner to revoke the stay orders made 13 August 2009 and, two, the substantive hearing of the two review applications. As to the Commissioner's application to revoke the stay, the Commissioner advised the Appeal Panel at hearing that the revocation application is withdrawn (see principal submissions, [3.2]). 5 The Supreme Court orders made 18 June 2010 also remove the issues raised in those proceedings to the Court of Appeal to be joined with an appeal before it from the Commissioner challenged orders made by the Supreme Court in February 2010 obliging the Commissioner to consider allowing the review applicants to have a special advocate represent their interests if the Tribunal hearing is closed. 6 The parties agree that the precise issues raised by these appeals lie outside the scope of the Commissioner's appeal and the further Supreme Court order of 18 June 2010. 7 To assist in considering the leave question, and in the interests of having a record in a published decision of the overall state of the proceedings, the following narrative is provided. Revocation of Licences 8 On 23 July 2009 the Commissioner of Police served a notice of revocation on Mr Peter Sleiman revoking his personal licence held under the Security Industry Act 1997 (SI Act), Class 1ABC Class 2ABD, and the Master Licences held by the two companies for which he is the nominated person, AVS Group of Companies Pty Ltd and ASET Security and Training Pty Ltd, numbers 4084999079 & 408981164. 9 On 13 August 2009 the Commissioner of Police served a notice of revocation on Mr Tony Sleiman as the nominated person revoking the Master Licence issued in the name of AVS Group Australia Pty Ltd. 10 In both cases service was effected at the common business address for the above businesses, 88 Parramatta Rd, Granville. Contents of Notices of Revocation 11 The 23 July 2009 notice of revocation gave as grounds for revocation that Peter was no longer a fit and proper person to hold a security licence (referring to s 26(1A) read in combination with s 15(1)(a) of the SI Act) and was not in the public interest (not referring to any provisions, but the relevant provisions are s 26(1A) read in combination with s 15(3)). 12 The body of the notice made no further reference to the public interest ground. It confined itself to the fitness ground. It begin with words: 'For the purposes of Section 26(1A) and Section 15(1)(a) of the Act, Section 15(6) provides; and then set out the words of the sub-section which are as follows: (6) For the purpose of determining whether an applicant is a fit and proper person to hold the class of licence sought by the applicant, the Commissioner may have regard to any criminal intelligence report or other criminal information held in relation to the applicant that: (a) is relevant to the activities carried out under the class of licence sought by the applicant, or (b) causes the Commissioner to conclude that improper conduct is likely to occur if the applicant were granted the licence, or (c) causes the Commissioner not to have confidence that improper conduct will not occur if the applicant were granted the licence. 13 The 13 August 2009 notice gave as the grounds for revocation that Tony had contravened a condition of a licence being failure to disclose particulars of a close associate, Peter Sleiman, that a close associate of AVS Group Australia Pty Ltd is not a fit and proper person to hold a licence (Peter Sleiman) and that it is not in the public interest that Tony hold a licence. Section 26(1)(b)(iii) provides that contravention of a condition is a ground for revocation. 14 The body of the notice was fuller than in the case of the Peter notice. It started off with the same material as in the Peter notice relating to the fitness ground, quoting s 15(6) and then went on to state: Section 15(7) of the Act states that the Commissioner is not, under this or any other law, required to give any reasons for not granting a licence if the giving of those reasons would disclose the existence or content of any criminal intelligence report or other criminal information as referred to in subsection (6). Section 15(5) of the Security Industry Act 1997 prescribes that except as provided by the regulations, reference in this section to an applicant includes, in the case of an application for a master licence, a reference to each close associate of the applicant. Section 26(1)(d) of the Security Industry Act 1997 prescribes that a licence may be revoked for any other reason prescribed by the regulations. Clause 29 of the Security Industry Regulation 2007 provides that a licence may be revoked if the Commissioner considers that it is not in the public interest for the person to whom it was granted to continue to hold it. 15 The notice then gave information as to the licensee's rights to apply for review by the Tribunal. 16 [The Commissioner has indicated in the course of these proceedings that the 'public interest' grounds in each of the decisions is no longer pressed. Some of the appeal submissions, while noting this change of position, assert that there remain obligations on the Commissioner to give reasons in support of the public interest ground.] 17 In respect of the 'Peter Sleiman' revocations, the affected persons filed an application for review by the Tribunal on 30 July 2009. In the 'Tony Sleiman' case the affected party filed an application for review on 13 August 2009. As already noted, on 13 August 2009 stays were granted, the context further explained below. 18 After that round of activity, both files were referred to Judicial Member Montgomery to conduct the reviews. Since then both applications have not reached any substantive outcome, because of a welter of interlocutory appeal activity. 19 The focus of the proceedings has been the extent to which the review applicants are entitled to know the case against them, and test it. The cases raise the question of the extent to which the procedural fairness obligations of the Tribunal are ousted if the Commissioner seeks to rely on confidential intelligence material. 20 The provisions that have received close attention are ss 15(6) and 29(3) of the SI Act. We have already quoted s 15(6). 21 Section 29(3) provides: (3) In determining an application for a review of any decision to refuse to grant a licence or to revoke a licence that was made on the ground of the applicant not being a fit and proper person, the Administrative Decisions Tribunal: (a) is to ensure that it does not, in the reasons for its decision or otherwise, disclose the existence or content of any criminal intelligence report or other criminal information referred to in section 15 (6) without the approval of the Commissioner, and (b) in order to prevent the disclosure of any such report or other criminal information, is to receive evidence and hear argument in the absence of the public, the applicant for review, the applicant's representative and any other interested party, unless the Commissioner approves otherwise. Note. Section 15 (7) of this Act provides that the Commissioner is not, under this or any other Act or law, required to give any reasons for not granting a licence if the giving of those reasons would disclose the existence or content of any criminal intelligence report or other criminal information referred to in section 15 (6). Accordingly, Part 2 of Chapter 5 of the Administrative Decisions Tribunal Act 1997 does not apply to any decision to refuse to grant a licence based on such information to the extent that it would require disclosure of the existence or content of any criminal intelligence report or other criminal information. Litigation History 22 The following is a history of the various proceedings, and a brief account of the issues raised: ( 1) The Stay proceedings. Whether the prohibition in s 29(3) is confined to the substantive consideration of the application for review or extends to all proceedings in the Tribunal in respect of the review application including stay proceedings. Ruled, prohibition applies to stay proceedings (Gen Div, Hennessy M, DP), 30 July 2009 (ex tempore); review applicants appeal successfully, General Division decision overruled, AVS Group of Companies Pty Ltd & Ors v Commissioner of Police, NSW (GD) [2009] NSWADTAP 48 Appeal Panel (Needham SC, DP and others) 11 August 2009, matter remitted. Stay hearing resumes. Commissioner declines to tender confidential material. Stays granted (13 August 2009). Commissioner seeks review of Appeal Panel ruling. Appeal Panel decision quashed in Commissioner of Police v AVS Group of Companies Pty Ltd v Commissioner of Police [2009] NSWSC 1408 16 December 2009 (Rothman J). Review applicants appeal, appeal dismissed, AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81 (15 April 2010) (Basten JA; Campbell JA; and Handley AJA). The Commissioner gives notice of application to Tribunal for revocation of the stay orders [application now withdrawn]. See further next heading. (2) The Proceedings Generally. Whether the review applicants can have a Special Advocate appointed to examine any confidential material and test any intelligence information relied upon by the Commissioner. Ruled, no (Gen Div (Montgomery JM, ex tempore)). On review, Supreme Court upholds Tribunal's ruling as to its procedural powers, but considers that the Commissioner has a common law duty to consider such a proposed procedure, and states: 'With the Commissioner's consent, the confidential exhibit may be disclosed to the special advocate. The Commissioner must give the plaintiffs' proposal consideration, as the Security Industry Act requires.' AVS Group of Companies Pty Limited and Ors v Commissioner of Police and Anor [2010] NSWSC 109 (26 February 2010) (Schmidt J). On 3 March 2010 the review applicants formally requested the Commissioner to approve in principle the appointment of a "special advocate" to represent their interests at the final hearing, the approval of Mr Whitlam QC as the special advocate and the approval and consent to further proposed orders. On 26 March 2010 the Commissioner filed a notice of intention to appeal the ruling to the Court of Appeal. On 15 April 2010 the Commissioner applied to the Tribunal to have the stay orders lifted. Hearing listed for 14 May 2010. Commissioner refused to agree to special advocate procedure on stay application. Review applicants applied to Supreme Court for orders restraining the Tribunal from proceeding. Granted, AVS Group of Companies Pty Ltd & Anor v Commissioner of Police & Anor AVS Group Australia Pty Ltd & Anor v Commissioner of Police & Anor [2010] NSWSC 447 (13 May 2010) Davies J. Review applicants then applied for order compelling Commissioner to adopt special advocate procedure. Question removed to the Court of Appeal, orders restraining Tribunal continued. Final hearing in Tribunal fixed for 14 July 2010 stayed. AVS Group of Companies v Commissioner of Police [2010] NSWSC 659 (18 June 2010) (Price J). [As noted earlier, Commissioner has now withdrawn the stay application.] Appeal has been listed for hearing by Court of Appeal on 20 and 21 October 2010. (3) Whether material covered by s 15(6) can be excluded by the Commissioner from a statement of reasons. Ruled yes, AVS Group of Companies Pty Ltd v Commissioner of Police, NSW Police Force [2009] NSWADT 223 (21 August 2009) (Gen Div, Hennessy M, DP), and applies equally to s 29(3), applying the reasoning in another security industry case where the Commissioner sought to rely on confidential material, Commissioner of Police (NSW) v. Gray [2009] NSWCA 49. Appeal by review applicants to Appeal Panel, reasoning approved, leave to appeal refused: AVS Group of Companies Pty Ltd v Commissioner of Police, New South Wales Police Force [2009] NSWADTAP 52 Appeal Panel (Needham SC, DP) 21 September 2009. Appeal dismissed, AVS Group of Companies Pty Ltd v Commissioner of Police [2009] NSWSC 1391 (18 December 2009) Davies J. (4) Whether any objection under s 59 of the ADT Act by the Commissioner to complying with duty under s 58 to lodge all relevant material is to be made known to the review applicant, and to what extent. Ruled: not to be made known (Gen Div, ex tempore ruling). Appeal by review applicants, upheld in part. Held entitled to the date of any application by the respondent for orders under s 59; and that an order has issued, and its date: AVS Group Australia Pty Ltd v Commissioner of Police, New South Wales Police Force (GD) [2010] NSWADTAP 26 Appeal Panel (O'Connor DCJ, P and others) 20 April 2010. On 4 June 2010, after expiry of period allowed for any appeal, the Tribunal transmits following information to the review applicants: 'I refer to your letter of 2 June 2010. After consulting with the President of the Tribunal, further to order 2 of the Appeal Panel's decision of 20 April 2010, I advise as follows: Any application by the Commissioner for an order under s 59 and its date Though not expressed in terms as a s 59 application, by letter dated 17 September 2009, the Crown Solicitor on behalf of the Commissioner applied to the Tribunal for permission not to lodge under s 58 a bundle of documents. Whether there has been an order made and its date No order made.' This Appeal 23 To assist the Appeal Panel in understanding precisely which of the many procedural rulings made by the Tribunal in preparation for the hearings are under challenge in this appeal, the Appeal Panel directed the appellants to produce a summary table clearly identifying them. The document listed nine rulings, five in the 'Tony Sleiman' cases, and four in the 'Peter Sleiman' cases. Relevant extracts from the transcripts appear in the affidavits of Mr Laface. 24 In the 'Tony Sleiman' review application, the appeal against the fifth ruling was not pressed at hearing. We will include it in the following list ('disputed decisions' 1 to 5 in the filed list), but not consider it any further: (1) Refusal to direct Commissioner to notify review applicants of his intention or otherwise to rely, for the purposes of a pending hearing, upon material claimed by him to be s 15(6) material. (We will call this ruling T1.) (2) Refusal to direct that the review applicants be provided with a copy of the statement of reasons from which had been redacted only the Commissioner's reasons for revoking the relevant security master licence on the second of the three grounds stated in the notice of appeal, i.e. lack of fitness of an alleged 'close associate'. (T2) (3) Refusal to direct that the review applicants be provided with a copy of that statement of reasons from which had been redacted only that information that would 'disclose' the existence or content of material to which s 15(6) refers on the second of the three grounds stated in the notice of appeal, i.e. lack of fitness of an alleged 'close associate'. (T3) (4) Refusal to direct the Commissioner to lodge with the Tribunal (without disclosing such lodgment to the review applicants) copies of material bearing upon the credibility of secret evidence of testimony provided by police informants (if any). (T4) (5) Ruling that there was no utility in directing that the review applicants have liberty to approach the Registrar to restore to the list the application of the making of which they were notified in writing on 4 June 2010 pursuant to the orders of the Appeal Panel on 20 April 2010. (T5) [not pressed] 25 In the 'Peter Sleiman' review application, the following rulings are challenged: (6) Refusal to provide review applicants with a copy of the statement of reasons filed pursuant to s 58(1) of the ADT Act, s 58(1)(a) from which had been redacted only the Commissioner's reasons for revoking the relevant security master licence on the first of the two grounds stated in the notice of appeal, i.e. lack of fitness. (We will call this ruling P6, following the numbering system in the list and the submissions.) (7) Refusal to direct that the review applicants be provided with a copy of that statement of reasons from which had been redacted only that information that would 'disclose' the existence or content of material to which s 15(6) refers on the first only of the two grounds stated in the notice of revocation, i.e. lack of fitness. (P7) (8) Refusal to direct the Commissioner to lodge with the Tribunal (without disclosing such lodgment to the review applicants) copies of material bearing upon the credibility of secret evidence of testimony provided by police informants (if any). (P8) (9) Refusal to inform the review applicants of the terms of the orders sought on, or of the general nature of, an application openly stated by the Commissioner to be an application in relation to Confidential Exhibit 1. (P9) 26 The 'T' series of objections are the subject of Appeal No 109036, the 'P' series of objections are the subject of Appeal Nos 109035 (P6-P8) and 109038 (P9). 27 It will be seen that three issues are common to both cases: T2/P6; T3/P7; T4/P8; and that of three that are unique, two are pressed: T1, P9. Material before Appeal Panel 28 The appellants had as at 1 July 2010 (the first intended date of hearing of the appeal), filed a large volume of material. The hearing was adjourned with the Appeal Panel giving directions for revised material to be filed, with a quick timetable for filing of any further material. 29 As a result the following was filed ahead of the hearing, handed up on the new date (16 July 2010), or filed by leave after the hearing. 'Nutshell summary of case' (1 July 2010) (appellants); a list of the disputed decisions (appellants); an amended set of submissions (9 July 2010) (appellants); supplementary submissions (12 July 2010) (appellants): further supplementary submissions (at hearing) (appellants); Commissioner's submissions 'Part 1' (at hearing); Commissioner's submissions called 'outline-disclosure' (at hearing); outline reply submissions to 'disclosure' submissions (at hearing) (from appellants); Commissioner's further submissions (after hearing, 21 July 2010); reply submissions from appellants (23 July 2010). Commissioner's Position 30 Before going on to address the leave question, it is helpful to note the aspects of the Commissioner's position on the issues raised by the appeal. 31 As to T4/P8, 'it is not the Commissioner's position that in respect of s 29(3) SIA material the Tribunal may not be able to make directions etc for the production to it of further material relevant to its evaluation of s 29(3) material': principal submissions [5.11]. 32 The Commissioner noted that in the Peter Sleiman proceedings the Commissioner has disclosed the existence of s 29(3) material: See [2009] NSWADT 222 at [28] & [32]. The situation in the Tony Sleiman proceedings is different. The Commissioner has not formally disclosed the existence of s 29(3) material. There is a dispute as to whether there was such a disclosure in the course of a directions hearing, whether the content of the notice of revocation allows it to be inferred that the Commissioner has s 29(3) material and whether the reasons of the Appeal Panel in [2010] NSWADTAP 26 involve a finding to that effect. (The Commissioner's 'disclosure' submission goes to the debate on what the words 'disclose the existence of' embrace.) 33 As to P9, the Tribunal disclosed that there had been a discussion about Confidential Exhibit 1, and that occurred with the permission of the Commissioner. 34 In the final set of submissions, the Commissioner refers to the possibility, raised by the Appeal Panel (and further discussed below) in cases involving consideration of s 29(3) material, of the Tribunal issuing two sets of reasons. There would be a 'confidential' set held by the Tribunal not accessible to the public or the parties other than the Commissioner. There would be a separate set of reasons compliant with s 29(3) made generally available. The Commissioner confirmed that he has no objection to such a practice. But the Commissioner added a qualification. The Commissioner stated that he does not accept that the generally available set should take the form of a redacted (or edited) version of the confidential set. As we understand it, the Commissioner is concerned that such an approach would have the effect of disclosing the existence of s 29(3) material. Leave 35 The core issue in this case, as it has in so many of the cases that have already been heard, is the effect that s 29(3) has on the usual procedures of the Tribunal and on the usual requirements falling on administrators in respect of the giving of reasons for decision either as part of their own decision-making process or after the matter reaches the Tribunal. 36 The Court of Appeal in Gray's case described s 29(3) as an 'implied partial repeal' of the ordinary requirements of procedural fairness. The Appeal Panel decision of 20 April 2010 (a Tony Sleiman case), AVS Group Australia Pty Ltd v Commissioner of Police, New South Wales Police Force, sought to deal with the question of what was left unrepealed in respect of the after-filing lodgment obligations of the Commissioner under ss 58 and 59. 37 It is clear that the General Division (in the stay phase it was constituted by Hennessy DP, and thereafter by Montgomery JM) has consistently ruled in favour of the Commissioner's submissions as to the effect s 29(3) and other provisions in the SI Act such as s 15(6) have on the usual procedural rights afforded to review applicants. The result, so far, is that the appellants have had nothing substantial revealed to them about the basis for the Commissioner's case against them. 38 They are left with the prospect of a closed hearing in the Tribunal, which, on the Commissioner's submissions to date as we have understood them, might also involve them receiving no notice of the date of hearing. There are real issues as to what they can then be told about the outcome of the Tribunal's deliberations beyond a bare 'affirmed', 'set aside' or 'varied' decision. The Tribunal would, as we understand its obligations, have to give a decision supported by reasons, but their publication might be restricted to the Commissioner. If the decision is negative to the review applicants, they would have no reasons to consider, against which they might mount a challenge. If they chose to appeal it would have to be a blind appeal. 39 In our view, these issues are very likely to fall under notice in the Court of Appeal hearing, listed, as already noted, for late October 2010. 40 In our view, it is likely that the Court will, as the Commissioner has submitted, be called on to deal with the way s 29(3) is to operate, and its practical impact on the ordinary procedural obligations of the Tribunal. 41 The member sitting at first instance will be able to take account of any relevant interpretations that emanate from the Court of Appeal. In our opinion, the point will then have been reached where the case should be allowed to proceed to finality at first instance. 42 Disputes about directions and the like can then be dealt with in any appeal. The great benefit of that approach is that the rulings that mattered to the ultimate outcome should then more clearly be able to be identified. If an appeal proceeds, all real issues as to process and outcome can be addressed in a single set of proceedings. This, of course, is the logic that has led to restrictions being imposed on interlocutory appeals. 43 The time, we believe, has been reached in this case where the matter should be allowed to go through to completion, once the Court of Appeal decision is handed down. That decision will bear directly on the question of whether a special advocate arrangement is to form part of the Tribunal's further conduct of the matter. Further Observations 44 In terms of the issues raised in these proceedings, we make the following observations which may be of assistance to the Tribunal below when it resumes dealing with the review applications. 45 As to T1, while textual distinctions can be drawn as the appellants submit between the wording of s 15(6) and s 29(3) the provisions belong to the same decision-making process, and any observations by the Court of Appeal on s 29(3) may extend to s 15(6) and inform the approach to be taken in giving a direction of the kind sought. 46 As to T2/P6, the issue is whether redaction has the effect of impliedly disclosing the existence of s 29(3) material. This remains a live issue in the T case, but not, as we understand the Commissioner's submissions, in the P case. Again the Court of Appeal decision may provide guidance on this issue. T3/P7 raise similar issues. 47 As to T4/P8, the Commissioner's position has been noted earlier in the reasons. The Commissioner acknowledges therefore that the Tribunal has a discretion and does not adopt the position that the Tribunal is obliged to refuse to act in the way suggested. Clearly, a party can not dictate to the Tribunal the kind of direction it should make where it has a discretion. Again the Court of Appeal ruling may assist. One of the objects sought to be served by the special advocate procedure is the testing of the Commissioner's case. The demand pressed by the appellants in T3/P8 goes to the same general issue of the extent to which the Tribunal should go about, or be assisted in, the testing of the Commissioner's case. We also note that the Commissioner does not question the Tribunal's powers to give directions for further information in supplementation of any confidential information that the Commissioner places before it. 48 As to P9, again the question of what orders are disclosable in relation to secret or closed proceedings may be open to be seen, as the Commissioner submits, as necessarily linked to the proper interpretation of the scope of operation of s 29(3). Again the Court of Appeal ruling should be of assistance in that regard. In the T case appeal, [2010] NSWADTAP 26, the Appeal Panel was inclined to the view that basic procedural information should be made known. But that view may be affected by the Court of Appeal ruling. Order 1. Appellant's application for leave to appeal refused. 2. Applications for review remitted to the General Division of the Tribunal for determination. Tribunal to conduct final hearing as early as practicable after the Court of Appeal delivers its decision in 2009/298022. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.