Bruce v Victorian WorkCover Authority
[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 432Division: 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
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’).
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 times the Applicant’s employment was covered by the Victorian WorkCover Authority Enterprise Agreement 2016-2020 (EA).
Following a number of incidents in 2018 and 2019 the respondent appointed an independent investigator to conduct an investigation into a number of matters involving the applicant. At or around the same time there were a number of other incidents involving the applicant, including concerns he raised about his workplace health and safety.
In the course of addressing those issues the respondent directed the applicant to undertake an independent medical examination which had to be rescheduled on a number of occasions due to the applicant’s failure to attend.
After the respondent had given the applicant notice about his failure to follow the above direction he was advised that it intended to terminate his employment. Following this and in November 2019 the respondent advised the applicant it was moving to do just that and terminated his employment on 12 November 2019. The applicant then commenced these proceedings.
By application and Form 2 filed on the 30 April 2020 the applicant alleged that the respondent had inter alia, contravened Part 3.1 of the Fair Work Act 2009 by taking adverse action against him, including by terminating his employment. By its response filed 5 June 2020 the respondent denied the applicant’s allegations
Following a number of directions hearings and the appointment of pro bono Counsel for the applicant (as his previous solicitor had ceased to act) the substantive proceedings were listed for trial in May 2022, the parties filed a statement of agreed facts and trial material, including affidavits pursuant to Court order.
Separately, the applicant had complained to the Victorian Health Complaints Commissioner and then exercised his right to have the complaint referred to VCAT. In the particulars of that complaint the applicant claimed inter alia that the respondent had breached the Health Records Act 2001(Vic). Those proceedings are still to be determined by VCAT.[1]
[1] See Bruce v Victorian WorkCover Authority (Worksafe) (Human Rights) [2002] VCAT 34.
APPLICATION IN A CASE
Before the substantive matter could come to trial in this Court the applicant sought the orders referred to above. It would appear this application was made after the applicant (who was representing himself before VCAT) attempted to provide affidavits in those proceedings to VCAT and had to be told he needed leave of this Court to do so. In his application in a case filed 1 December 2021, the applicant sought the following orders:
I am seeking leave of the Federal Circuit Court to use as evidence in Victorian Civil and Administrative Tribunal Reference: H69/2021 the sealed Federal Circuit Court affidavits lodged with the Court on 17/11/2021 of:
i)Suzanne Hickmon;
ii)Kristine Gatt;
iii)Andrew Keen;
iv)Ashley Clearihan;
v)Kirsty Allan.
On 9 December 2021 and by agreement of the parties, orders were made for the applicant’s application in a case to be heard on the papers. There were orders made for that purpose and the parties by agreement subsequently asked for orders for the extension of time for the filing of submissions for that purpose. Before turning to the parties’ submissions it is timely to refer to the following principles
APPLICATION FOR RELIEF FROM THE HARMAN OBLIGATION
The Harman obligation refers to the implied undertaking where one party to litigation is compelled, whether by a rule of court or an order of the court, or otherwise, to disclose documents or information the party obtaining the disclosure cannot, without leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence (see Hearne v Street (2008) 235 CLR 125). The implied undertaking takes its name from Harman v Secretary of State for the Home Department [1983] 1 AC 280.
In this case, the documents in question have not been received into evidence in the substantive proceedings, or at least not yet. Therefore what are the grounds on which, or the circumstances in which, the Court may grant leave.
It has been said that a party in the position of the applicant that seeks leave to be released from the implied undertaking must show “special circumstances”. The notion of “special circumstances” does not require that some extraordinary factor must bear on the question before the discretion will be exercised. It is sufficient that, in all the circumstances, good reason is 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 another non-litigious purpose. The discretion is a broad one and all the circumstances of the case must be examined (see Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3; 218 ALR 283 at [31] per Branson, Sundberg and Allsop JJ).
A non-exhaustive list of considerations, depending on the circumstances, includes 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 the litigation or was created for that purpose and was therefore expected to enter the public domain, the nature of the information in the document the circumstances in which the document came into the hands of the applicant, and most importantly, the likely contribution of the document to achieving justice in the other proceeding (see Springfield Nominees Pty Ltd v Bridgelands Securities Ltd [1992] FCA 720; 38 FCR 217 at 225 per Wilcox J, cited with approval in Liberty Funding at [31]). As matters transpired the above authorities were all referred to by the parties in their submissions.
The applicant’s application should also be viewed in light of Rule 14.11 of the Federal Circuit and Family Court of Australia (Division 2)(General Federal Law) Rules 2021. Rule 14.11 is, in effect, a restatement of what is described as the Harman obligation, for the purposes of proceedings in this Court.
The relevant principles have also been summarised in a decision of the Federal Court in Leagou Pty Limited v Commissioner of Taxation [2020] FCA 1162 at paragraphs [14] to [18].
SUBMISSIONS
The respondent filed submissions (supported by an affidavit of Laura Myer, Principal Solicitor of the Victorian Government Solicitors Office, sworn 16 December 2021). In her affidavit Ms Myer deposed to what were said to be the applicant’s attempts to use the affidavit material in the VCAT proceedings before making the application in a case the subject of these reasons. In the submissions the respondent’s position was as follows:
1.The Respondent opposes the orders sought in the Application in a Proceeding dated 1 December 2021. In particular, the Respondent contends that the Court should not grant leave to the Applicant to use affidavit material filed in this proceeding in, or in relation to, the Applicant’s separate proceeding in the Victorian Civil and Administrative Tribunal (VCAT).
2.The Respondent refers to and relies upon the Affidavit of Laura Myer affirmed on 16 December 2021 (Myer Affidavit), which is filed with this response and submission.
3.The Applicant seeks to use, and to be released from his implied undertaking in respect of, the whole of the following affidavits filed in this Court by the Respondent on 17 November 2021, and which are not yet read in this proceeding (the trial being listed for May 2022):
a. an affidavit of Suzanne Hickmon;
b. an affidavit of Kristine Gatt;
c. an affidavit of Andrew Keen;
d. an affidavit of Ashley Clearihan; and
e. an affidavit of Kirsty Allan.
4.In opposing the Application, the Respondent relies upon the principles set out in paragraphs [11] – [25] of ThoughtWeb Systems Pty Limited v Loughnan (No. 2) [2006] FCA 432 (Edmonds J) (ThoughtWeb).
5.Applying those principles, the Applicant has not demonstrated the special circumstances or strong grounds necessary for the Court to take the “rare” step of granting leave to the Applicant to use the Respondent’s affidavits and for him to be released from the “implied undertaking” to which Harman v Secretary of State for the Home Department [1983] 1 AC 280 and Hearne v Street [2008] HCA 36; 235 CLR 125 (at [96]) refer.
6.In this regard, the Respondent notes and submits that the Respondent’s affidavits were produced by compulsion pursuant to a court order (ThoughtWeb at [17]) and their use in VCAT proceeding H69/2021 is opposed by the Respondent.
7.Further, the Applicant has not demonstrated that the Respondent’s affidavits are likely to contribute to justice being achieved in the VCAT proceeding H69/2021 (ThoughtWeb at [24]); and the Applicant has not identified with precision the parts of the affidavits to be released and the purpose of that release (ThoughtWeb at [25]), including how the affidavits or any parts of them could even be admissible, or somehow used, in the VCAT proceeding. Related to this issue, we note that the Member presiding over the VCAT proceeding, Deputy President G Nihill, has reserved her decision in respect of the issue of jurisdiction in that proceeding, namely whether VCAT has jurisdiction to hear only one aspect of the Complainant's complaint (the alleged contravention/s of Health Privacy Principle 1) as submitted by the Respondent, or whether VCAT has jurisdiction to hear the whole of the Complainant's complaint (also including the alleged contravention/s of Health Privacy Principle 2, section 80 and 82 of the Health Records Act 2001 (Vic), and the Charter of Human Rights and Responsibilities Act 2006 (Vic) as submitted by the Complainant.
8.In making the present Application, the Applicant must overcome the usual approach of the Court, which is that any release or modification of the implied undertaking will not lightly be given: ThoughtWeb at [18], citing Brennan J in Esso Australia Resources Limited v Plowman (1995) 183 CLR 10 at [37]. He has not demonstrated any grounds, let alone any compelling grounds, for the Court to take the “rare” step of granting leave to him to use the Respondent’s unread affidavits in a different proceeding in another jurisdiction.
9.For these reasons, the Respondent opposes the Application in a Proceeding.
As indicated earlier, time was extended for the applicant to file submissions in reply. In those submissions filed 10 February 2022 the applicant’s position was:
1.The Applicant notes the set of factors identified by His Honour Wilcox J in Springfield Nominees Ptv Ltd v Bridge lands Securities Ltd [ 1992] FCA 720; ( 1992) 110 ALR 685 which were found to afford reason to release the undertaking. His Honour at [26] states…
2.The Applicant submits that applying these factors to the features of the case, justifies release from the undertaking on the grounds of special circumstances. The Applicant seeks the Court's consideration of the following:
Factor 1: The nature of the documents to be released.
3.To ensure that the scope of the application is no greater than necessary or appropriate to meet the interests of the administration of justice the Applicant seeks to limit the scope of the application to release from five affidavits down to a single affidavit of the Respondent's sole witness (Ms Suzanne Hickmon, affirmed November 202]) ( the Identified Affidavit) for use in the Victorian Civil and Administrative Tribunal (VCAT) proceeding as per Australian Securities andInvestment Commission v Marshall Bell Hawkins Limited [2003] FCA 833 at [13].
4.With precision the Applicant identifies four paragraphs (42,71, 72,74) of the Identified Affidavit and an accompanying two annexures (SH-12) and (SH-32) sought to be released.
5.Applying the definition of 'the nature of the documents' meaning 'nature' in terms of 'the inherent or essential quality and character of the documents' as per Knight v Corrections Victoria [2010] VSC 338 [39] to the Identified Affidavit and its accompanying annexure's, the Applicant submits that disclosure is contemplated for the following reasons:
i.The documents were prepared for the purposes of litigation and therefore in contemplation of disclosure and with knowledge of both proceedings (the VCAT and the Federal Circuit Court matter) on foot.
ii.None of the documents in accompanying annexures are labelled confidential and via their inclusion in the affidavit can be read as having the inherent or essential quality and character of disclosure.
Factor 2: The circumstances in which the document came into existence
6.The Identified Affidavit was prepared for use in litigation; it was not a pre-existing document. Whilst the Affidavit includes as exhibits supporting documents which were pre-existing to proceedings, the exhibits were included knowing that they would enter the public domain.
Factor 3: The attitude of the author and any prejudice they may sustain
7.Although the Respondent does not consent, and would prefer it not used, they do not advance any argument of prejudice by use of these documents in the VCAT proceeding.
Factor 4: Whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain
8.Refer to paragraph 6 above, noting that the Identified Affidavit was prepared only one week following the affidavit Ms Hickmon submitted to the VCAT and relates to the same period of time and set of circumstances.
Factor 5: The nature of the information in the document (in particular whether it contains personal data or commercially sensitive information)
9.The Identified Affidavit deals with matters directly relevant to the VCA T proceeding. It is a statement made by the person involved in the collection of information the subject of that proceeding. It has the clear potential to be important to the proper determination of the VCAT proceeding for the following reasons:
i.(SH-12) Annexure: Constitutes correspondence between Suzanne Hickmon the Senior HR Business Partner at Worksafe, and Ms Kirsty Allan the Workplace Relations Project Manager. The correspondence in SH-12 directly addresses the authority to release medical information and shows the Respondent's consideration and an understanding of the statutory requirement to obtain signed consent prior to collection in line with the requirements of Health Privacy Principle (1) of the Health Records Act 2001. The Applicant submits this set of facts clearly goes to the heart of the matter before VCAT and selectively does not appear in Suzanne Hickman's VCAT witness statement about the very same set of facts and circumstances.
ii.Paragraph 42: The Applicant submits that this statement in the affidavit is relevant as it demonstrates prior to collection the Respondent's awareness that the Applicant considered his medical information as sacrosanct and that be had made it known that he placed a great deal of importance on his privacy. This admission is omitted from the VCAT witness statement. Suzanne Hickmon's evidence in the Federal Circuit Court Affidavit at Paragraph 42 demonstrates the Respondents wilfulness of the breaches of HPP (I).
iii.(SH-32) Annexure/Paragraph 71,72: This correspondence is the emails containing the attached show cause letter, which is sent between Ms Hickmon, Ashley Clearihan and Joceyln Fredricks. Paragraph 71, 72 and the corresponding annexure SH-32 identifies individuals to whom the information was disclosed. The show cause letter contains the health information and refers to the collection subject to the proceeding in the VCAT. The Applicant submits that there are inconsistencies in the evidence provided to each of the Jurisdictions. In these sections of the Identified Affidavit, Joceyln Fredricks is identified as an individual that the health information subject of the VCAT proceeding was disclosed to. In the Respondent's VCAT witness statement Ms Hickmon fails to identify fully and frankly that Ms Jocelyn Fredricks was someone whom the information was disclosed to. This has been omitted. In omitting this correspondence from the VCAT witness statement the Respondent has failed to ensure that the Tribunal is aware of whom the organisation has disclosed the health information to.
iv.Paragraph 74: The Applicant submits that paragraph seventy-four demonstrates the Respondent's purpose for collection. That the collection was to provide a medical certification of fitness to attend and participate in an I.ME. A purpose which the organisation did not take any steps to ensure that the Applicant was aware of, at, before or, if that is not practicable, as soon as practicable thereafter- as is the requirement of HPP 1.4 ( e ). This has been omitted from the VCAT witness statement.
Factor 6: The nature of the information in the document (in particular whether it contains personal data or commercially sensitive information)
10.The information is written statements, emails and letters from the Respondent about the Applicant's employment and health information. The information seeking to be released does not contain any commercially sensitive information and has already been redacted removing any personal data. There is no potential for abuse or any ulterior purpose for release.
Factor 7: Likely contribution of the document of achieving justice in the other proceeding
11.The documents are created by the same individual (Ms Suzanne Hickmon) in both proceedings and correspond to that individual's account of the very same set of events. However, despite the overlap of time and circumstance, the documents sought clearly show clear discrepancies and selective omissions in the account Ms Hickmon provided in her affidavit to the VCAT. Ms Hickmon's role is as the decision maker in the VCAT matter and the sole witness of the Respondent in that matter. As such, the documents in their release, would provide a full context and narrative to assist the VCAT in understanding the decision-making process and available contemporaneous knowledge of what was in the decision maker's mind.
12.It is important to note that these proceedings have been running alongside each other. Ms Hickmon's VCAT witness statement was submitted on 10 November 2021 and the Identified Affidavit was submitted in very close proximity, only one week later, on 17 November 2021. Both are created in excess of 2 years post the events, there was no event between occurring between these dates that would cause a material change in facts between the submission of these two statements.
Factor 8: Other factors providing good reason for release
13.The Applicant submits there is good public interest reason as to why the documents and information obtained in the Federal Circuit Court matter should be used in the VCAT proceeding being that not only will release will not occasion injustice to the Respondent (Worksafe) and contribute to justice being achieved in the VCAT proceeding but it is in the public interest that the Respondent in their role as a workplace regulator is held to the highest levels of account for abiding by health privacy laws/protecting the public's health privacy. It is Worksafe's business handling large amounts of individuals' medical information every day and as such a matter which scrutinises their processes is in the public interest.
14.The Applicant submits that absent to the proceedings, the Respondent is a public sector body and is subject to freedom of information laws, the documents are information about the Applicant and the Applicant's employment and as such there is entitlement to those documents. When applying the reasoning in Re Addstone Pty Ltd (in liq); Ex parte Macks (1998) 30 ACSR 162, where Mansfield J, after referring to what Lord Diplock had said in Harman, stated at (166]: 'The duty which is therefore placed upon the recipient of documents procured in the course of discovery, arises because, absent the proceedings, there is no entitlement to those documents. '. The documents (specifically those referenced in annexures), would be accessible to the Applicant under Victorian freedom of information laws as they do not contain any commercially sensitive or personal data of any other individual. As such the documents ought be released as entitlement to those documents exists absent of the proceedings.
15.Liberty Funding Pty Ltd v Phoenix Capital Ltd (2005) 218 ALR 283 at (31] gives commentary on the application of discretion in which the "notion of special circumstances" will arise. 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. The discretion is a broad one and all the circumstances of the case must be examined.
16.In response to the Respondents position in regards to relevance of the evidence, this should be reserved for the VCAT in its decision making on the particulars of the case. The particulars of the matter have not been put before the Federal Circuit Court and do not form part of the application for leave and therefore the determination should remain with the VCAT.
17.In reference to this, the Applicant notes that the Member presiding over the VCAT proceeding, Deputy President G Nihill, has made her decision (attached) in respect of the issue of jurisdiction in that proceeding. Determining that VCAT has jurisdiction in respect of the complaint to hear the contravention/s of the Charter of Human Rights and contravention/s of Health Privacy Principle 1.1 , 1.2, 1.3, 1 .4, 1.5 (which directly relate to the collection of information) to which the Applicant submits the Identified Affidavit relates. (emphasis added)
On 11 February 2022 the day after the applicant filed the reply submissions (including the significant limitation to the previous request for leave as outlined above) the respondent’s solicitors sent an email to the Court which so far as presently relevant was:
“Whilst determination of the Application is ultimately a matter for His Honour, the Respondent wishes to advise His Honour that, in the interests of narrowing the issues in dispute in the Applicant’s Application, the Respondent does not oppose the Applicant being granted a limited release from the Harman undertaking to rely on paragraphs 41, 42, 51 and 52 of the affidavit of Kristine Gatt, sworn 29 November 2021, for the purposes of the Applicant’s VCAT proceeding H69/2021 – Duncan Bruce v Victorian WorkCover Authority (WorkSafe). The Respondent otherwise maintains its position set out in its submissions dated 17 December 2021 for the balance of the material that the Applicant seeks leave to use for his VCAT proceeding.”
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.
In terms of the likely contribution of the document to achieving justice in the other proceedings having examined the affidavits in question, I accept that there is a degree of commonality in the factual matrix between the proceedings in this Court and the proceedings in VCAT.
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.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Sullivan. Dated: 24 February 2022
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