Binnie and Comcare (Compensation) - [2024] AATA 493

Binnie and Comcare (Compensation) [2024] AATA 493 (21 March 2024)
Division:GENERAL DIVISION
File Number: 2022/1633
Re:Rhonda Binnie
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:21 March 2024
Place:Brisbane

The Respondent is released from the implied undertaking referrable to Tribunal proceeding numbered [2022/1633] relating to the following documents:
·All materials produced under summons including:
o   Central Queensland Psychology Services;
o   Dr Nicola Petzl;
o   Richlands Medical Centre;
o   Think Therapies;
o   Services Australia;
·Medical report dated 27 June 2023 prepared by Dr Frank Varghese, and letter of instruction;
·Medical report dated 13 August 2022 prepared by Dr Pei Huang, and letter of instruction;
·Medical report dated 19 January 2023 prepared by Dr Malcolm Foxcroft, and letter of instruction; and
·Statement dated 15 September 20 23 prepared by Rhonda Binnie.

........................[SGD]...........................
Senior Member Theodore Tavoularis
Catchwords
PRACTICE AND PROCEDURE- interlocutory application for release of implied undertaking concerning documents produced under summons process-whether release of such documents sought for collateral and ulterior purposes-whether special circumstances warrant a release of the documents-Tribunal finding release of implied undertaking is warranted-application allowed.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Military, Rehabilitation and Compensation Act 2004 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Cases
Liberty Funding Pty Ltd v Phoenix Capital Ltd (2005) 218 ALR 213
Oliver and Comcare [2018] AATA 1964
Palmer and Military Rehabilitation and Compensation Commission [2021] AATA 1347
Springfield Nominees Pty Ltd v Bridgelands Securities Ltd [1992] FCA 472
Walsh and Comcare [2022] AATA 158
REASONS FOR DECISION
Senior Member Theodore Tavoularis
21 March 2024
INTRODUCTION

This interlocutory application is concerned with whether or not the Respondent can be released from an implied undertaking in respect of certain documents produced pursuant to a validly issued summons or duly made Directions. Those documents are particularised at paragraph 1 of Exhibit 2.[1]
[1] See exhibit list attached to these Reasons.
THE THRESHOLD QUESTION
The Respondent is discharged from the implied undertaking in circumstances where it can be demonstrated that use of the documents now is not sought for a collateral or ulterior purpose. The currently live application before the Tribunal seeks compensation pursuant to section 14 of the SRC Act[2] for Major Depressive Disorder (‘MDD’) and Fibromyalgia. Importantly, the Applicant contends her claimed MDD and Fibromyalgia were significantly contributed to by (1) an incident that occurred on 24 November 1994; and (2) her accepted and presently ongoing PTSD condition.
[2] Safety, Rehabilitation and Compensation Act 1988 (Cth).
For reasons that follow, I am satisfied that the Respondent’s requested release from the implied undertaking is not sought for a collateral or ulterior purpose. This is especially so in circumstances where the Applicant seeks to rely on the extent to which an accepted (and ongoing) injury (PTSD)[3] should now be found to be causative of her claimed MDD and Fibromyalgia. In my view, the Respondent should be at liberty to ventilate (and the Tribunal should be made aware of) evidence of a claimed condition going to a pivotal question of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Binnie and Comcare (Compensation)

Details

AGLC: Binnie and Comcare (Compensation) [2024] AATA 493
Case: [2024] AATA 493
Decision Date: 21 March 2024

CaseChat Overview and Summary

This matter concerned an interlocutory application brought by Comcare for the release of documents produced by the applicant, Binnie, under a summons process in proceedings before the Administrative Appeals Tribunal. Comcare sought to use these documents in separate proceedings.

The primary legal issue before the Tribunal was whether the implied undertaking of confidentiality attaching to documents produced under a summons should be released. This required the Tribunal to consider whether Comcare's application was for collateral and ulterior purposes, and if special circumstances warranted the release of the documents.

The Tribunal found that the implied undertaking could be released where the applicant seeking release demonstrated that the documents were sought for a purpose other than the proceeding in which they were produced, and that there were special circumstances justifying the release. In this instance, the Tribunal was satisfied that Comcare had established such special circumstances, and that the application was not for a collateral or ulterior purpose. Accordingly, the Tribunal allowed the application for release of the implied undertaking.

Orders