Chin and Comcare (Compensation) [2017] AATA 634 (10 May 2017)
Division:GENERAL DIVISION
File number: 2016/3010
Seow Chin
APPLICANT
AndComcare
RESPONDENT
INTERLOCUTORY DECISION
Tribunal:Dr James Popple, Senior Member
Date:10 May 2017
Place:Canberra
An implied undertaking applies to Comcare in relation to some of the documents in issue. But Comcare does not require a release from that implied undertaking before it can use those documents in future decisions about the applicant’s entitlement to compensation under the Safety, Rehabilitation and Compensation Act 1988 for her accepted injuries.
........................................................................
James Popple, Senior Member
CATCHWORDS
COMPENSATION — Claims management — implied undertaking — whether implied undertaking applies to party compelled to produce documents — whether implied undertaking applies in relation to use of documents for claims management purposes —release from implied undertaking required where documents used for collateral or ulterior purposes — claims management purposes not collateral or ulterior to purpose for which documents were produced where they relate to the same person and the same injuries — no release required.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988, ss 29, 57, 69(a), 70, 72
CASES
Alterskye v Scott [1948] 1 All ER 469
Ampolex Ltd v Perpetual Trustee Company (Canberra) Ltd (1995) 18 ACSR 218
Australian Securities Commission v Ampolex Ltd (1995) 38 NSWLR 504
Central Queensland Cement Pty Ltd v Hardy (1989) 2 Qd R 509
Crest Homes plc v Marks [1987] 1 AC 829
Esber v Commonwealth (1992) 174 CLR 430
Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10
Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316
Harman v Secretary of State for Home Department [1983] 1 AC 280
Hearne v Street (2008) 235 CLR 125
Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 648
Otter Gold Mines Ltd v McDonald (1997) 76 FCR 467
Prudential Assurance Co Ltd v Fountain Page Ltd [1991] 1 WLR 756
Riddick v Thames Board Mills Ltd [1977] QB 881
Sybron Corporation v Barclays Bank plc [1985] Ch 299
Tate Access Floors Inc v Boswell [1991] Ch 512
REASONS FOR DECISION
Dr James Popple, Senior Member
10 May 2017
Summary
Comcare was compelled to produce documents to the Tribunal and the applicant. Comcare now proposes to use those documents for claims management purposes. The question arises whether an implied undertaking applies to Comcare in relation to those documents and, if it does, whether Comcare would have to be released from that implied undertaking before it could use the documents for those purposes.
I answer the interlocutory questions:
·An implied undertaking applies to Comcare in relation to those documents, but not as a result of Comcare having been compelled to produce the relevant documents, and only to the extent that the documents contain information from documents obtained under summons.
·Comcare does not require a release from that implied undertaking before it can use the documents for the purposes of making future decisions about the applicant’s entitlement to compensation under the Safety, Rehabilitation and Compensation Act 1988 (the
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- Chin and Comcare (Compensation) [2017] AATA 634
- Case
- [2017] AATA 634
- Decision Date
CaseChat Overview and Summary
The central legal issues before the Tribunal were whether an implied undertaking, which generally restricts the use of documents produced under compulsion, applied to Comcare in relation to documents it had obtained and used for claims management purposes. Specifically, the Tribunal considered whether this implied undertaking extended to documents provided to a medical assessor and reports generated by that assessor, and whether Comcare required a release from this undertaking to use these documents for ongoing claims management.
The Senior Member reasoned that the implied undertaking applies to documents produced under compulsion, but its scope is limited to preventing their use for collateral or ulterior purposes. In this instance, Comcare's use of the summonsed documents and Dr Mourad's reports for the purpose of managing Ms Chin's compensation claim was not considered collateral or ulterior, as these purposes were directly related to the same person and the same injuries for which the documents were originally produced. Therefore, Comcare did not require a release from the implied undertaking to continue using these documents and the information within them for future decisions regarding Ms Chin's entitlement to compensation under the *Safety, Rehabilitation and Compensation Act 1988* (Cth).
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