Binnie and Comcare (Compensation)
[2024] AATA 493
•21 March 2024
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 acceptance of her two further claimed conditions. With respect, it is the Applicant’s claim that her now-claimed MDD and Fibromyalgia were contributed to by her accepted PTSD that compels ventilation of the contested material.
[3] Post Traumatic Stress Disorder.
In support of its contention that ventilation of the material is not sought for a collateral or ulterior purpose, the Respondent cities several authorities. First, in Oliver[4], a claimant asserted that a condition affecting her right limb was the direct outcome of her suffering from accepted compensable conditions. Deputy President Humphries of this Tribunal said: ‘I would be prepared to grant release [of the implied undertaking in circumstances where] material produced in connection with the latter [i.e. the claimed right limb condition]….has a direct relevance to the assessment of a claim for compensation of the former [conditions].’[5]
[4] Oliver and Comcare [2018] AATA 1964.
[5] Oliver at [59].
Second, in Walsh[6], there was no second or subsequent injury. The only compensable injury in question related to the accepted injury to the applicant’s right foot. The applicant sought classification of complications arising from his accepted right foot injury for the purposes of ongoing claims management of that injury. Member Mitchell of this Tribunal found ‘…the complications/conditions…the Applicant is seeking to have separately…classified have…been considered or treated up until this point as part of his primary right foot injury.’[7] In these circumstances, Member Mitchell was not of the view that the Respondent before her required any release from the implied undertaking. However, she went on to say ‘if the Tribunal is mistaken in this assessment….the Tribunal, following the principles of the Oliver case, would be prepared to grant the sought release.’[8]
[6] Walsh and Comcare [2022] AATA 158.
[7] Walsh at [22].
[8] Walsh at [24].
The Applicant contends the authorities are conflicted about what constitutes a collateral or ulterior purpose. In essence, the Applicant says decisions such as Oliver and Walsh are inconsistent with Palmer[9]. While the Applicant may ‘commend’[10] Palmer to the Tribunal as ‘highly persuasive’[11], I am of the view that Palmer is not, in any fundamental sense, on all fours with the present factual circumstances. Palmer was concerned with whether a release was required in respect of a future claim for compensation under the MRCC Act[12].The Respondent makes the distinction between Palmer and the instant facts more elegantly in these terms:
‘…the application currently before the Tribunal concerns a dispute as to whether a release is required in respect of an existing and accepted claim for compensation under the SRC Act for an injury which is now claimed to have significantly contributed to the two claimed injuries now before the Tribunal. The Respondent submits that the Applicant’s reliance on the previously accepted PTSD claim as a casual [sic] factor for the purposes of the two claimed conditions currently before the Tribunal is a critical distinction and is more than simply the context within a wider sequence of events leading to the current proceedings.’[13]
[My emphasis]
[9] Palmer and Military Rehabilitation and Compensation Commission [2021] AATA 1347.
[10] Exhibit 1, p 5 [19].
[11] Exhibit 1, p 6 [19].
[12] Military, Rehabilitation and Compensation Act 2004 (Cth).
[13] Exhibit 2, p 3 [10].
The Applicant propounds a position in the instant proceeding that her accepted PTSD injury has significantly contributed to her now-claimed MDD and Fibromyalgia. Document(s) referencing from that accepted injury have a ‘direct relevance’ to determination of the now-claimed conditions. In these circumstances, I am not of the view (nor will I find) that use of the subject documents[14] for claims management purposes under the Applicant’s accepted PTSD injury are sought for any collateral or ulterior purpose.
[14] As listed at Exhibit 2, p 1 [1].
DO SPECIAL CIRCUMSTANCES APPLY TO WARRANT A RELEASE?
In Liberty Funding[15], the Full Court provided guidance on the question of whether special circumstances exist to warrant a parties release from an implied undertaking. The Full Court said:
‘In order to be released from the implied undertaking it has been said that a party….must show “special circumstances”…The notion of “special circumstances” does not require that some extraordinary factors must bear on the question before the discretion will be exercised. It is sufficient to say that, in all the circumstances, good reason must be shown why, contrary to the usual position, documents produced or information obtained in one piece of litigation should be used for the advantage of a party in another piece of litigation or for other non-litigious purposes. The discretion is a broad one and all the circumstances of the case must be examined.’[16]
[15] Liberty Funding Pty Ltd v Phoenix Capital Ltd (2005) 218 ALR 283.
[16] Liberty Funding at [31].
The Full Court in Liberty Funding then proceeded to cite other authority[17] in which Wilcox J identified a number of considerations which may, depending on the circumstances of a given case, be of relevance in the exercise of the discretion to release a party from an implied undertaking. These include:
·‘the nature of the document;
·the circumstances under which the document came into existence;
·the attitude of the author of the document and any prejudice the author may sustain;
·whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain;
·the nature of the information in the document (in particular whether it contains personal data or commercially sensitive information);
·the circumstances in which the document came in to [sic] the hands of the applicant; and
·most importantly of all, the likely contribution of the document to achieving justice in the other proceeding.’[18]
[17] Springfield Nominees Pty Ltd v Bridgelands Securities Ltd [1992] FCA 472.
[18] Liberty Funding at [31].
The nature of ‘the document’ at the heart of the Applicant’s resistance towards releasing the Respondent from the implied undertaking is a report of the Psychiatrist, Dr Frank Varghese dated 27 June 2023.[19] Certain of the documents listed at [1] of Exhibit 2 were provided to Dr Varghese, who produced a written opinion about the Applicant’s PTSD which is relevant to the management of that claim. Dr Varghese’s attitude to release of the document from the implied undertaking is not known. Nor is it known whether he would suffer any prejudice in the event his report were no longer blanketed by the implied undertaking. He is a clinical expert who provided the report about a claimant’s PTSD. One could not imagine how or why Dr Varghese would object to, or claim any prejudice from, the referencing of his report into the evidence of contested litigation involving the same claimant who contends her PTSD condition contributed to the two claimed injuries now before the Tribunal.
[19] Exhibit 2, p 1 [1(b)].
The nature of ‘the information’ contained in the relevant list of material may well be suggestive of a reality that the Applicant does not suffer from PTSD. Whether any such suggestion gives rise to a positive finding (either way) is a matter for the relevant decision-maker. But there is little or nothing to cavil with the proposition and finding that the singular or collective import of the contested material is directly relevant to (1) the management of the Applicant’s accepted claim for PTSD; and (2) determination of her respective claims for compensation for her now claimed MDD and Fibromyalgia.
As for the ‘circumstances’ in which the documents came into existence, it is not disputed that the totality of that material was produced pursuant to either (1) a validly issued summons by this Tribunal; or (2) validly issued Directions by this Tribunal for the specific purpose of them becoming evidence in proceedings before this Tribunal. Section 35 of the AAT Act[20], contemplates such material entering the public domain and thus being available to the Tribunal and/or the parties at a future Tribunal hearing: ‘….evidence given before the Tribunal and the contents of documents received in evidence by the Tribunal should be made available to the public and to all parties.’[21] [My emphasis]
[20] Administrative Appeals Tribunal Act 1975 (Cth).
[21] Sections 35(5)(b) and (c) of AAT Act.
Upon application of the abovementioned factors identified by Wilcox J to the totality of the contested material and bearing in mind the relationship the existing PTSD injury and the two now-claimed conditions before the Tribunal, I am satisfied that special circumstances now exist to warrant a release from the implied undertaking.
A FINAL COMMENT
The Applicant’s fundamental objection to the Respondent’s release from the implied undertaking comes down to this:‘…Comcare’s real purpose here is to rely on the opinion of Dr Varghese to terminate or revoke the Applicant’s long standing accepted claim for PTSD. Therein lies the rub.’[22] This contention is misplaced and should be rejected.
[22] Exhibit 1, p 6 [26].
The basic obligation of the Tribunal is to reach the decision that it considers to be the correct and preferrable decision.[23] In discharging this obligation, ‘…the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.’[24] I have found there to be no collateral or ulterior purpose in the use of the subject material. I have also found there to be special circumstances warranting the Respondent’s release from the implied undertaking. It is therefore appropriate and necessary for the Tribunal to ‘inform itself’ of the contested material and that releasing the Respondent from the implied undertaking is the ‘appropriate’ means of doing so.
[23] See Administrative Appeals Tribunal, Dennis Pearce, 4th edition, page 290 [16.4].
[24] Section 33(1)(c) of the AAT Act.
DISPOSITION
There will be an Order in these terms:
The Respondent is released from the implied undertaking given in 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.
I so order.
I certify that the preceding 17 (seventeen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis
..........[SGD].......
Associate
Dated: 21 March 2024
Dates of hearing: 17 January 2024 and 18 March 2024 Counsel for the Applicant: Mr John Mrsic (Counsel) 4 Selborne Chambers (Sydney) Solicitor for the Respondent: Mr Peter Snell (Special Counsel) Moray Agnew Lawyers EXHIBIT LIST
·Applicant’s written submissions dated 30 January 2024: Exhibit 1.
·Respondent’s written submissions dated 12 February 2024: Exhibit 2.
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