Bruce v Victorian WorkCover Authority

Case [2022] FedCFamC2G 106

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Bruce v Victorian WorkCover Authority [2022] FedCFamC2G 106

File number: MLG 1416 of 2020
Judgment of: JUDGE O'SULLIVAN
Date of judgment: 24 February 2022
Catchwords: INDUSTRIAL LAW – PRACTICE AND PROCEDURE – Substantive proceedings about alleged breaches of Part 3-1 of Fair Work Act2009 (Cth) – application in a case – Harman undertaking- orders sought for applicant to be released from Harman undertaking to use affidavit in VCAT.
Legislation: Victorian WorkCover Authority Enterprise Agreement 2016-2020
Fair Work Act 2009 (Cth), Pt. 3.1
Health Records Act 2001 (Vic), ss.80, 82
Federal Circuit and Family Court of Australia (Division 2)(General Federal Law) Rules 2021, r.14.11
Charter of Human Rights and Responsibilities Act 2006 (Vic)
Cases cited: Bruce v Victorian WorkCover Authority (Worksafe) (Human Rights) [2002] VCAT 34
Hearne v Street (2008) 235 CLR 125
Harman v Secretary of State for the Home Department [1983] 1 AC 280
Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3; 218 ALR 283
Springfield Nominees Pty Ltd v Bridgelands Securities Ltd [1992] FCA 720; 38 FCR 217
Leagou Pty Limited v Commissioner of Taxation [2020] FCA 1162
ThoughtWeb Systems Pty Limited v Loughnan (No. 2) [2006] FCA 432
Division: Division 2 General Federal Law
Number of paragraphs: 32
Date of last submission 14 February 2022
Place: Melbourne (On the papers in Chambers)

ORDERS

MLG 1416 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

DUNCAN BRUCE

Applicant
AND:

VICTORIAN WORKCOVER AUTHORITY

Respondent

ORDER MADE BY:

JUDGE O'SULLIVAN

DATE OF ORDER:

24 FEBRUARY 2022

THE COURT ORDERS THAT:

1.The parties are released from the implied Harman undertaking in respect of paragraphs [42], [71], [72], [74] and annexures SH-12 and 32 of the affidavit of Suzanne Hickmon affirmed 29 November 2021 (‘the affidavit’) and filed in this proceeding, and have leave to use those parts of the affidavit in the proceedings currently before VCAT in Ref no. H69/2021.

2.The application in a case filed 1 December 2021 be otherwise dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

INTRODUCTION

  1. These reasons concern an application in a case for leave for the use of affidavits which have been filed in these proceedings in separate proceedings which are currently being heard in the Victorian Civil and Administrative Tribunal (‘VCAT’).

  2. On 17 September 2018, Duncan Bruce (‘the applicant’) was employed by the Victorian WorkCover Authority (‘the respondent’) as an Administrative Officer, pursuant to a written contract of employment. The applicant worked in the respondent’s Medical Panels Division. At all material…

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Bruce v Victorian WorkCover Authority [2022] FedCFamC2G 106
Case
[2022] FedCFamC2G 106
Decision Date

CaseChat Overview and Summary

In the case of Bruce v Victorian WorkCover Authority, the applicant sought a limited release from the Harman undertaking, which was an agreement preventing the use of certain documents in other litigation. The applicant aimed to use these documents in proceedings before the Victorian Civil and Administrative Tribunal (VCAT). The legal issue before the Court was whether special circumstances existed to justify a limited release from the Harman undertaking. The applicant argued that the documents were relevant to the VCAT proceedings and arose from the same facts and circumstances as the substantive proceedings.

The Court considered the authorities on the issue of special circumstances and the application of the Harman undertaking. It was established that the existence of special circumstances does not require extraordinary factors but merely a good reason in all circumstances. The Court found that the applicant had adequately addressed the relevant matters in their reply submissions, particularly concerning the relevance of the documents to the VCAT proceedings. The respondent argued that the documents were not relevant to the alleged breach of Health Privacy Principle and the Charter of Human Rights and Responsibilities Act 2006, but the Court found otherwise. The Court concluded that the documents might illuminate matters in the VCAT proceedings and therefore, the discretion should be exercised in favour of the applicant.

The Court ultimately decided not to grant the applicant a limited release from the Harman undertaking in relation to certain parts of the affidavit of Kristine Gatt. However, the Court did find that the limited documents sought by the applicant could be said to be reasonably required for the purpose of doing justice between the parties. The Court exercised its discretion in favour of the applicant in the more narrow terms sought. The respondent continued to resist the applicant’s more limited request, but the Court did not find it appropriate to make such an order. The Court made orders as outlined at the beginning of the reasons for decision.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In the circumstances of this case, I am of the view that the limited documents now sought by the applicant could be said to be reasonably required for the purpose of doing justice between the parties, there is a connection between the allegations made in this case and those that are in VCAT, and that in all of the circumstances, the Court should exercise its discretion in favour of the applicant in the more narrow terms now sought.CONCLUSION Whilst the respondent “in the interests of narrowing the issues in dispute” did not oppose the applicant being granted a limited release from the Harman undertaking in relation to certain parts of the affidavit of Kristine Gatt in light of the position of the parties before the Court it is not appropriate to make such an order. However, and for the reasons set out above, there will be orders as set out at the beginning of these reasons for decision.

Ratio Decidendi

Legal Principle Established

The respondent’s solicitors subsequently confirmed, in response to a request by the Court, that it continued to resist the applicant’s more limited request (as set out in paragraph [18]) as it “did not accept the submissions made by the Applicant concerning the relevance of Ms Hickmon’s affidavit to the alleged breach of Health Privacy Principle and the Charter of Human Rights and Responsibilities Act 2006”.CONSIDERATION The authorities state that in order to be released from the Harman undertaking, an applicant must show the existence of “special circumstances” (Springfield Nominees Pty Ltd v Bridgelands Securities Ltd [1992] FCA 472;(1992) 38 FCR 217 at [223]-[225]). However, the establishment of “special circumstances” does not require that extraordinary factors exist before the discretion can be exercised, only that good reason must be shown in all of the circumstances why, contrary to the usual principle, documents produced or information obtained in one litigation should be able to be used for the advantage of a party in other litigation or for non-litigious purposes (Liberty Funding Pty Ltd v Phoenix Capital Ltd[2005] FCAFC 3; (2005) 218 ALR 283 at [31]). As noted in Leagou Pty Limited v Commissioner of Taxation [2020] FCA 1162 at [19] – [28] there is some difference in the authorities on the question of whether affidavits filed in compliance with orders of the Court fixing a timetable for the provision of trial evidence (such as they were in these proceedings) are disclosed under the relevant degree of coercion. However, for the same reasons set out in that decision it is appropriate to proceed on the basis that the Harman undertakings are applicable and the applicant does require the release from the undertaking which he seeks. The decision referred to by the respondent in submissions (ThoughtWeb Systems Pty Limited v Loughnan (No. 2) [2006] FCA 432) pre-dated the decision in Leagou Pty Limited v Commissioner of Taxation [2020] FCA 1162 and in any event the paragraphs relied on in submissions canvassed the same principles set out in the latter decision. I have considered the factors referred to in Leagou Pty Limited v Commissioner of Taxation [2020] FCA 1162 against the material relied on and the submissions that they made. It is the applicant’s position that the sections and attachments in the abovementioned affidavit referred to in paragraph [18] are relevant for the matter before VCAT and arise from the same facts and circumstances as in the substantive proceedings. The respondent doesn’t accept the applicant’s submissions on relevance. Having examined the affidavit in question and in terms of the factors referred to in Leagou at paragraph [18] of that decision I adopt, for these reasons the submissions on those matters from the applicant’s reply submissions which adequately addressed the relevant matters (given his narrowed request). In relation to the respondent’s objection referred to at paragraphs [19] and [26] with respect it is a matter for VCAT whether the documents the applicant seeks to be able to use are relevant and admissible. It is sufficient to say that it may illuminate matters in those proceedings.