Bradley and National Disability Insurance Agency - [2022] AATA 2884

Bradley and National Disability Insurance Agency [2022] AATA 2884 (7 September 2022)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2020/8122, 2021/0352
Re:Richard Bradley
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

INTERLOCUTORY Decision
Tribunal:Senior Member K Buxton
Date:7 September 2022
Place:Brisbane

The Tribunal refuses to grant to both the Applicant and the Respondent the release from the substantive obligations (known as the Harman Undertaking) owed with respect to the documents they have, respectively, identified.
It is open to the parties to re-enliven their requests, if necessary, after the closure of the evidence in the review applications.
...............[SGD]...............
Senior Member K Buxton
Catchwords
PRACTICE AND PROCEDURE – implied undertaking – where release from the implied undertaking is to assess the Applicant’s entitlements under the NDIS Act – where documents are produced under compulsion – where Applicant opposed release from the implied undertaking – release from the implied undertaking denied
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Agency Act 2013 (Cth)
Privacy Act 1988 (Cth)
Public Service Act 1999 (Cth)
Cases
Chin and Comcare [2017] AATA 634
Esso Australia Resources Ltd v Plowman [1995] HCA 19
Gower v Australian Capital Territory [2019] AATA 3947
Hearne v Street [2008] HCA 36
Porter v Australian Broadcasting Corporation (No 2) [2021] FCA 1036
Treasury Wine Estates [2020] FCAFC 226
Warner v Comcare [2017] AATA 2709
REASONS FOR DECISION
Senior Member K Buxton
7 September 2022
BACKGROUND

Mr Richard Bradley (‘the Applicant’) has been a participant in the National Disability Insurance Scheme (‘NDIS’) since 15 April 2020 in respect to his diagnosis of Autism Spectrum Disorder (‘ASD’). The Applicant filed his first application with the Tribunal on 6 December 2020, seeking review of a decision made by the National Disability Insurance Agency (‘the Respondent’) dated 3 December 2020.[1] The decision, made under section 100(3) of the National Disability Insurance Scheme Act 2013 (Cth) (‘NDIS Act’), confirmed an earlier decision made by the delegate of the Chief Executive Officer (‘CEO’) of the Respondent Agency on 20 July 2020 which approved a statement of participant supports.[2]
[1] T-documents received for 2020/8122, T1.
[2] Ibid, T2.
A second application was filed with the Tribunal on 21 January 2021, seeking review of a decision made by the Respondent dated 20 January 2021.[3] The decision, made under section 100(3) of the NDIS Act, confirmed an earlier decision to not review the Applicant’s plan under section 48 of the NDIS Act.[4] The applications are being considered together.
[3] T-documents received for 2021/0352, T1.
[4] Ibid, T2.
During the course of the Tribunal’s alternative dispute resolution process and evidence gathering, the Applicant filed multiple reports, documents, and other evidential material on which he intends to rely. In November 2021, the Tribunal granted the Respondent’s request that summons be issued to eleven of the Applicant’s treating practitioners and of those eleven practitioners, nine provided material in response. The Applicant and Respondent inspected the summons material throughout December 2021.
THE RESPONDENT’S REQUEST FOR RELEASE FROM THE IMPLIED UNDERTAKING
On 31 May 2022, the Respondent filed a submission requesting release from the implied undertaking. The Respondent’s reasons for release were:[5]
The summonsed documents provided by the applicant raised new and additional supports. Due to the complex and overlapping nature of the applicant’s diagnosable conditions, the respondent is seeking the use of the summonsed documents on the applicant’s claim file to provide a fulsome picture of the applicant’s disabilities and impairments.
[5] Respondent’s submissions on released from the implied undertaking, [6].
The Respondent submitted that they accept that the summons documents are subject to the implied undertaking as they were produced under compulsion.[6] The Respondent relied on Chin and Comcare (‘Chin’)[7], whereby the Tribunal considered whether release from the implied undertaking was required in order for documents filed in the course of the proceedings to be used for claims management process.[8] The Tribunal determined that the claims management process was not collateral to the Tribunal proceeding, and release was not required.[9] The Respondent submitted that, distinct from Chin, the Respondent requires a release in order to use the documents to assist in understanding the complexities of the Applicant’s conditions and ensuring he is provided funding for reasonable and necessary supports in accordance with section 34 of the NDIS Act.[10] The Respondent sought a direction that the Respondent be released from the implied undertaking to use the summonsed documents in the management of the Applicant’s plan review process.[11] Although not explicitly stated, the effect of that intended purpose appears to be to take account of the information when future decisions are made by the Respondent.
[6] Ibid, [12].
[7] [2017] AATA 634.
[8] Ibid, [29].
[9] Ibid, [33].
[10] Respondent’s submissions on released from the implied undertaking, [14].
[11] Ibid, [23].
The Respondent further submitted that release from the implied undertaking with respect to the summons documents will facilitate better decision making and use of public funds,[12] will not prejudice the Applicant as the Respondent has the power under section 55 of the NDIS Act to obtain copies of summonsed documents,[13] and, while the documents contain personal and sensitive material, it is protected by privacy legislation which limits disclosure of the information.[14]
[12] Ibid, [17].
[13] Ibid, [19].
[14] Ibid, [20].
For the reasons set out below, it is not necessary to form a view as to whether the release is needed. I have accepted, for the purpose of dealing with the orders sought by the parties, that there is no automatic entitlement for either party to use the documents for a purpose extraneous to the current proceedings.
SUBMISSIONS
The Tribunal convened an interlocutory hearing by telephone on 22 June 2022. During that hearing, the Respondent made oral submissions to the effect that the Respondent wished to use the documents to determine the Applicants’ entitlement to funded supports. In order to do so, the first part of the Respondent’s oral submission was to the effect that it wished to consider whether the Applicant had additional impairments that would meet the disability requirements under section 24 of the NDIS Act. The Respondent contended that it could not fund supports for the Applicant unless those supports were related to a disability for which the Applicant could have been granted access to the scheme. The Respondent then submitted that it was desirable to have the current proceedings brought to an end so that the Respondent could initiate a review under section 48 of the NDIS Act and, having regard to the additional material gained during the course of this review, in relation to which the release from the implied undertaking was sought.
With respect to the first part of that submission, the Tribunal notes that the statute does not impose any express requirement, or indeed any mechanism, under Chapter 3 Part 1 or Chapter 3 Part 2 of the NDIS Act, by which a participant, having accessed the NDIS on the basis that the access criteria have been met, must re-establish those access criteria in order to access supports for impairments that were not considered at the time access was granted. However, it is open to the Respondent to make these submissions at the substantive hearing.
As to the second part of that submission, the Tribunal enquired as to why the Respondent could not form its own view, within the setting of these existing review applications, about the reasonable and necessary supports to be funded for the Applicant, having regard to all information gathered in the proceedings. To do so would not be collateral to the proceedings and would constitute an intrinsic part of the Respondent’s participation in them. After all, it is open to the parties to arrive at substantive consent terms and invite the Tribunal to dispose of the proceedings, in full or in part, by giving effect to these terms under section 42C of the Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’). Alternatively, it is open to the parties to seek a remittal under section 42D of the AAT Act and have a reviewer reconsider the decision under review having regard to all the information gathered in the proceedings.
Neither proposition was accepted by the Respondent as the appropriate course of action, despite the Applicant’s stated willingness for the decision to be remitted under section 42D of the AAT Act. Instead, the Respondent invited the Applicant to simply withdraw his review application and agree to the release of the implied undertaking so that the Respondent could conduct a review with the additional information under section 48 of the NDIS Act. The Applicant was opposed to this course identifying, quite correctly, that he was being asked to give up his rights to have the Tribunal determine his review application. He declined to consent to giving up those rights.
Prior to the interlocutory hearing, the Respondent had not identified with particularity which documents the release was sought. As a result, it was difficult for the Applicant and the Tribunal to consider the requests. Following the interlocutory hearing, the Tribunal directed that the Respondent provide a bundle of the documents with respect to which they wish to be released from the implied undertaking and provide a table which sets out the list of documents and the basis upon which release from the undertaking is sought. The Applicant was directed to file a copy of the table completed with his comments with respect to each of the many documents in relation to which a release was sought. The Respondent filed the table in accordance with the direction on 29 July 2022, and the Applicant filed a completed copy of the table on 21 August 2022. During that process the Applicant also sought a release from the implied undertaken so that he could use certain documents for the collateral purpose of lodging a complaint about the conduct of a particular medical practitioner.[15]
[15] Applicant’s email dated 21 August 2022.
The Applicant submitted that, if the Respondent was released from the implied undertaking, release of the documents would breach the Australian Privacy Principles within the Privacy Act 1988 (Cth) and would offend section 10(2),(4) and (5), and section 13(2),(4),(10)(b) and (11)(a)(b) of the Public Service Act 1999 (Cth) as using these documents to inform decision making would be an abuse of power which would cause harm as it is not the best available evidence.[16] The Applicant further submitted that some of the summons documents are incomplete, inaccurate, outdated and misleading, and would cause secondary injustice if used to inform decision making.[17] The Applicant provided submissions with respect to each of the summons documents, detailing the bases upon which the material is said to be inaccurate and outdated and took issue with documents containing information that was incomplete or lacking in context.[18]
[16] Applicant’s submission on release from the implied undertaking, page 20.
[17] Ibid, page 1.
[18] Applicant’s submission on release from the implied undertaking, page 1.
ISSUE BEFORE THE TRIBUNAL
The issue for the Tribunal to consider is whether the Applicant’s and the Respondent’s requests for release from implied undertaking with respect to the summons documents are to be granted.
CONSDIERATION
Part 5 of the Tribunal’s General Practice Direction provides:[19]
[19] Administrative Appeals Tribunal General Practice Direction, part 5.
5.2 If you or the decision-maker have obtained a document provided under compulsion in an application before the AAT, you, the decision-maker and any person to whom the document is given, by implication, undertake to the AAT that the document will not be used for any purpose other than the purpose for which it was given to us unless:
(a) the document was received in evidence by us in the application and the confidentiality of the document is not protected by an order under section 35 of the AAT Act or by another statutory provision; or
(b) we give you or the decision-maker permission to use the document for another purpose.
5.3 Documents to which the implied undertaking applies include:
(a) documents lodged under section 37 or 38AA of the AAT Act;
(b) documents lodged pursuant to a direction given by us (for example, expert reports or witness statements); and
(c) documents produced in response to a summons issued by us.
The implied undertaking continues even after an application has been finalised. Breach of the implied undertaking by using the documents for another purpose may constitute a criminal offence under section 63 of the AAT Act on the basis that it could, if the AAT were a court of record, constitute a contempt of court.
The majority of the High Court in Hearne v Street (‘Hearne v Street’)[20] set out the following principle in relation to the implied undertaking and explored circumstances in which it ceases to be relevant:[21]
Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence (emphasis added). The types of material disclosed to which this principle applies include documents inspected after discovery, answers to interrogatories, documents produced on subpoena, documents produced for the purposes of taxation of costs, documents produced pursuant to a direction from an arbitrator, documents seized pursuant to an Anton Piller order, witness statements served pursuant to a judicial direction and affidavits…
It is common to speak of the relevant obligation as flowing from an "implied undertaking”.
[20] [2008] HCA 36.
[21] Ibid, [96] – [97].
The court also noted that, whilst described in the language of an implied undertaking, the parties owed a substantive obligation to treat the documents in this way.[22] The Court described the broad types of material disclosed to which this principle applies, including documents produced on subpoena, documents produced pursuant to directions, witness statements and affidavits.[23]
[22] Ibid, [106].
[23] Ibid, [96].
In Chin, and Warner v Comcare (‘Warner’)[24], the Tribunal followed the same approach in determining whether the implied undertaking applied in relation to Comcare's use of documents for claims management purposes.[25] The Tribunal in Chin noted Brennan J’s explanation in Esso Australia Resources Ltd v Plowman (‘Esso’)[26], of the “underlying principle” where there is an implied undertaking: ‘a party who obtains the production of documents or the disclosure of information for a particular purpose cannot use the documents or information for a “collateral or ulterior purpose”’.[27] After considering a number of authorities on the meaning of “collateral or ulterior purposes”, the Tribunal concluded that claims management purposes were not collateral to the proceedings in Chin.
[24] [2017] AATA 2709
[25] Chin, [16]; Warner, [10].
[26] [1995] HCA 19.
[27] Ibid, [7] per Brennan J,
Once admitted into evidence, the document may be used by the Respondent in the discharge of its statutory functions. The Applicant would also no longer be subject to the undertakings. In Gower v Australian Capital Territory (‘Gower’)[28] the Tribunal confirmed that, after being taken into evidence, documents became publicly available:[29]
The Reports were prepared with the view to them becoming evidence in this proceeding and were, accordingly, expected to enter the public domain when they were taken into evidence at a future hearing by the Tribunal. In this regard, s 35(5) of the Administrative Appeals Tribunal Act 1975 (Cth) sets out that “it is desirable … that 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 the parties”. The fact that this proceeding may not reach a hearing (if, for instance, it was to settle beforehand) should not be determinative of a question of whether to release a party from the implied undertaking if there are good reasons to do so in advance of a document being taken into evidence. (emphasis added)
[28] [2019] AATA 3947.
[29] Ibid, [26].
In Porter v Australian Broadcasting Corporation (No 2) (‘Porter’)[30] the Full Court, adopting the reasoning in Treasury Wine Estates Limited v Maurice Blackburn Pty Ltd (‘Treasury Wine Estates’),[31] concluded that the obligation ‘ceased to apply on receipt of the document into evidence, because by that means (and subject to any contrary order) the document would have entered the public domain and lost any quality of confidentiality’.[32]
[30] [2021] FCA 1036.
[31] [2020] FCAFC 226.
[32] Porter, [19].
Given that the substantive hearing of the review applications is scheduled to take place next month, it is difficult to see what pressing need arises in relation to the collateral use, by either party, of the summonsed document. Once the documents are in evidence the parties may use them for appropriate purposes. If some documents in respect of which the release is sought do not find their way into evidence in the substantive proceedings, the parties can approach the Tribunal at that stage in relation to their implied undertakings in respect of those documents. The Tribunal is not satisfied that good reasons (of the kind contemplated in Gower) exist in this case to require the Tribunal to determine whether the undertaking should be released at this stage. The Applicant may raise his issues of concern about a practitioner, and the Respondent may exercise its statutory powers, by reference to documents that are entered into evidence in this review.
The Tribunal notes, for completeness, that much of the Applicant’s written submissions as to the summons documents related to the conclusions he wished the Tribunal to draw in the substantive review applications, and what weight should be given to various documents. These submissions can be made to the Tribunal during the hearing. Further, where the Applicant has disagreed with the content of, or conclusions reached in, a document, particularly in relation to diagnoses or symptoms, he has submitted that the document not be released.[33] Where the Applicant has identified later documents containing information that is inconsistent with the earlier information, or more up to date, he has also submitted that the earlier document not be released.[34] However, neither concern provides a basis for preventing release from an implied undertaking if the Tribunal were otherwise prepared to entertain the request.
[33] Applicant’s submission on release from the implied undertaking, page 1.
[34] Ibid.
The provisions of the Public Service Act1999 (Cth) and Privacy Act 1988 (Cth) identified by the Applicant contain guidance as to the conduct for particular persons who are in possession of documents. These provisions are not offended by the proper conduct of the Respondent in a review application before the Tribunal. Indeed, the Respondent owes a statutory obligation to assist the Tribunal to identify the correct or preferable decision and to draw the Tribunal’s attention to relevant material in order to discharge that duty.[35] That is the case even if the Applicant disagrees with the content or conclusions reached within a document or considers that later documents provide a more accurate version of events. It is for the Tribunal to determine the relevance and weight to be given to documents put in evidence before it.
[35] AAT Act, s 33(1AA).

In this case, the Tribunal has determined that it is premature to make a decision now in relation to the requests that the parties be released from their implied undertakings with respect to particular documents gathered through the summons process. There is no urgency for the Applicant to access documents in order to raise issues of concerns about a practitioner through the proper channels. Further, there is no pressing need for the Respondent to make decisions about the Applicant’s funded supports as that is the very question before the Tribunal for determination.
After the Tribunal hearing, documents used in that hearing will no longer be the subject of an implied undertaking and it will not be necessary to determine the requests for release.[36] Seeking a release to induce the Applicant to discontinue his application before the Tribunal is not a proper basis. Similarly, those documents for which the Applicant seeks a release in order to make a complaint about a practitioner may also no longer be caught by the undertaking. Any documents not used in the course of the review, but which the parties submit should nonetheless be the subject of a release, can be identified prior to the Tribunal’s final decision in this review and dealt with at that time. It may be that no documents will ultimately fall into this category and, as there is no pressing need to determine this issue now, the Tribunal declines to release either party from the substantive obligations (known as the Harman Undertaking) owed with respect to the documents identified above.
[36] Hearne v Street, [96].
CONCLUSION
The applications to release either party from the substantive obligations (known as the Harman Undertaking) owed with respect to the documents identified above are therefore refused at this stage of the proceedings. It is open to the parties to re-enliven their requests, if necessary, after the closure of the evidence in the review applications.

27.

I certify that the preceding 26 (twenty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member K Buxton.

…….…[SGD]………..
Associate
Dated:   7 September 2022
Final Submissions Received:            21 August 2022
Applicant:   Mr Richard Bradley.
Representative for the Respondent: Australian Government Solicitor.