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Chin and Comcare (Compensation)

Chin and Comcare (Compensation)

Case [2017] AATA 634 10 May 2017

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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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Chin and Comcare (Compensation)

Details

AGLC: Chin and Comcare (Compensation) [2017] AATA 634
Case: [2017] AATA 634
Decision Date: 10 May 2017

CaseChat Overview and Summary

This matter concerned a dispute between Ms Chin and Comcare regarding the use of documents in the management of Ms Chin's workers' compensation claim. The decision was made by Dr James Popple, Senior Member, in the Administrative Appeals Tribunal.

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).

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Because I have decided that Comcare does not require a release from the implied undertaking, I do not need to consider whether Comcare should be released from it.Conclusion An implied undertaking applies to Comcare in relation to:·the summonsed documents that were included in the briefing material that it provided to Dr Mourad; and·Dr Mourad’s reports—but only to the extent that those reports were informed by, or reproduce information from, the summonsed documents.The implied undertaking also applies to the information in those documents. Comcare does not require a release from that implied undertaking before it can use those documents (or that information) in future decisions about Ms Chin’s entitlement to compensation under the SRC Act for her accepted injuries. Those claims management purposes are not collateral or ulterior to the purpose for which Comcare was compelled to produce the relevant documents.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Chin and Comcare (Compensation) [2017] AATA 634

Most Recent Citation

Ellercamp and Comcare [2025] ARTA 637

Cases citing this decision · 12 of 12 shown

Keyte and Comcare (Compensation)
[2025] ARTA 1292

…ic v Comcare (1993) 40 FCR 244 Re Butler and Australian Postal Corporation [1992] AATA 361 Re Chin and Comcare (Compensation) [2017] AATA 634 Re DVFW and Comcare (Compensation) [2019] AATA 2366 Re Ellercamp and Comcare [2025] ARTA 637 Re Oliver and Comcare (Compensation) [2018] AATA 1964 Re Pidgeon and National Di…
Ellercamp and Comcare
[2025] ARTA 637 Para 3

…In Chin and Comcare [2017] AATA 634; (2017) 160 ALD 176 ( Chin ), the Tribunal considered a release of two medical reports obtained in relation to review of a decision to cease payments of household services pursuant to section 29 of the SRC Act on the basis that the use would be relevant to Comcare’s liability to…
Pidgeon and National Disability Insurance Agency
[2023] AATA 2207 Para 9

…purposes”, the Tribunal concluded that claims management purposes were not collateral to the proceedings in Chin . [6] [2017] AATA 634; [2017] AATA 2709. [7] Chin , [16]; Warner , [10]. [8] [1995] HCA 19. [9] Ibid, [7] per Brennan J,…
Bradley and National Disability Insurance Agency
[2022] AATA 2884 Para 5

…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].…
Walsh and Comcare (Compensation)
[2022] AATA 158 Para 19

…laims was a purpose collateral or ulterior to the purpose for which the material was produced under summons. 56.Conversely, in Chin and Comcare [2017] AATA 634 Comcare was compelled to produce documents to the Tribunal and the applicant. It then proposed to use those documents for what it considered were claims ma…
Palmer and Military Rehabilitation and Compensation Commission (Compensation)
[2021] AATA 1347 Para 9

…e produced.[8] [8] Newey and Comcare (Compensation) [2017] AATA 1772 at [21]; Richmond and Comcare [2019] AATA 100 at [19]-[22]; Chin and Comcare [2017] AATA 634 at [19]-[21]. Is release required?…
Gower and Australian Capital Territory (Compensation)
[2019] AATA 3947 Para 18

…elatedness of the 2016 injury to the Claimed Injury, noting that Dr Mourad considers that they are two distinct injuries. [13] Chin and Comcare [2017] AATA 634. [14] Chin at [29].…
Newey and Comcare (Compensation)
[2019] AATA 1772 Para 1

…y for Comcare’s convenience. The particular proceedings for which a person is compelled to give evidence must be kept in focus. [3] [2017] AATA 634; Dr James Popple, Senior Member [4] [2018] AATA 1964; Deputy President Gary Humphries [5] [2001] NSWSC 648…
DVFW and Comcare (Compensation)
[2019] AATA 2366 Para 6

…ore the Tribunal, including Richmond v Comcare [2019] AATA 100, Warner v Comcare [2017] AATA 2709, O liver v Comcare [2018] AATA 1964, Chin v Comcare [2017] AATA 634 at [21] and LMFP v Comcare [2017] AATA 1512 at [3], in the Tribunal’s view this case falls into a category of management of the claim for the accepte…
Richmond and Comcare (Compensation)
[2019] AATA 100 Para 18

…se law dealing specifically with the application of the implied undertaking in the tribunal. Both parties’ submissions referred to Chin and Comcare [2017] AATA 634 ( Chin ); Warner and Comcare [2017] AATA 2709 ( Warner ); and Oliver and Comcare [2018] AATA 1964 ( Oliver ). Are the reports covered by the implied un…
Re Oliver and Comcare
[2018] AATA 1964 Para 4

…Conversely, in Chin and Comcare [2017] AATA 634 Comcare was compelled to produce documents to the Tribunal and the applicant. It then proposed to use those documents for what it considered were claims management purposes. It was held to be subject to an implied undertaking in relation to those documents. Moreover,…
Warner and Comcare (Compensation)
[2017] AATA 2709 Para 10

…sometimes called the Harman rule, after the decision of the House of Lords in Harman v Secretary of State for Home Department .[5] [1] [2017] AATA 634. [2] (2008) 235 CLR 125 at 154–155 [96]–[97] per Hayne, Heydon and Crennan JJ, footnotes omitted. See [2017] AATA 634 at [16]. [3] (2008) 235 CLR 125 at 160 [108]…

View all 12 citing cases →

Cases cited in this decision · 13 of 13 shown

Hearne v Street
[2008] HCA 36 Para 16

…ircumstances under which the relevant person obtained the documents or information”.[8] That obligation applies in the Tribunal.[9] [7] (2008) 235 CLR 125 at 154–155 [96]–[97] per Hayne, Heydon and Crennan JJ, footnotes omitted. Gleeson CJ at 131 [3], 132 [6] and Kirby J at 145 [56]–[60] agreed, though see Kirby J at…
Idoport Pty Ltd v National Australia Bank Ltd
[2001] NSWSC 648 Para 25

…tion are identical: Sybron Corporation v Barclays Bank plc [1985] Ch 299 at 319–320.[25] [25] Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 648 at [27] per Einstein J, formatting edited.…
Hamersley Iron Pty Ltd v Lovell
[2000] WASCA 208 Para 24

…Cole JA) in Australian Securities Commission v Ampolex Ltd (1995) 38 NSWLR 504, but not on this point. [18] (1998) 19 WAR 316 at 320 per Ipp J. [19] (1998) 19 WAR 316 at 334 per Anderson J, with whom Pidgeon J agreed (at 320) on this point. [20] (1998) 19 WAR 316 at 337 per Anderson J. [21] Esso Australia Resources…
Otter Gold Mines Ltd v McDonald
[1997] FCA 694

…ces 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…
Ampolex Ltd v Perpetual Trustee Company (Canberra) Ltd
[1996] NSWCA 14

…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 Plowm…
Ampolex Limited v Perpetual Trustee Company (Canberra) Limited
[1996] NSWCA 15 Para 24

…sing a disclosed document or information “for any purpose other than that for which it was given”.[24] [17] (1995) 18 ACSR 218 at 221 per Giles CJ Comm D. That decision was overturned by the Court of Appeal (Kirby P, Sheller JA and Cole JA) in Australian Securities Commission v Ampolex Ltd (1995) 38 NSWLR 504, but no…
Esso Australia Resources Ltd v Plowman
[1995] HCA 19 Para 23

…entral Queensland Cement Pty Ltd v Hardy (1989) 2 Qd R 509 at 510. [15] [1983] 1 AC 280 at 302. [16] Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10 at 36 per Brennan J.…
Esber v the Commonwealth
[1992] HCA 20 Para 27

…7] the Tribunal’s decision will be one decision amongst several made during the management of the same claim. [26] Esber v Commonwealth (1992) 174 CLR 430 at 440 per Mason CJ, Deane, Toohey and Gaudron JJ. [27] Idoport Pty Ltd v National Australia Bank Ltd : see [25] and note 25 above.…
[1983] 1 AC 280
[1983] 1 AC 280 Para 16

…eir honours cited, amongst other cases, the decision of the House of Lords in Harman v Secretary of State for Home Department [1983] 1 AC 280. The rule about implied undertakings is sometimes called the Harman rule. [8] (2008) 235 CLR 125 at 160 [108] per Hayne, Heydon and Crennan JJ, citing Prudential Assurance C…
[1991] 1 WLR 756
[1991] 1 WLR 756 Para 16

…[8] (2008) 235 CLR 125 at 160 [108] per Hayne, Heydon and Crennan JJ, citing Prudential Assurance Co Ltd v Fountain Page Ltd [1991] 1 WLR 756; [1991] 3 All ER 878; see also (2008) 235 CLR 125 at 131 [3] per Gleeson CJ; at 145 [57] per Kirby J. [9] Otter Gold Mines Ltd v McDonald (1997) 76 FCR 467 at 471–473 per Su…
[1977] QB 881
[1977] QB 881 Para 25

…te Access Floors Inc v Boswell [1991] Ch 512 at 526; even where the parties to both actions are identical: see [ Riddick v Thames Board Mills Ltd [1977] QB 881] at 896–897, 901–902 and 912; and where the causes of action are identical: Sybron Corporation v Barclays Bank plc [1985] Ch 299 at 319–320.[25] [25] Ido…
[1987] 1 AC 829
[1987] 1 AC 829 Para 25

…The use of documents disclosed in one action for the purposes of another action will be a collateral or ulterior purpose: Crest Homes plc v Marks [1987] 1 AC 829 at 837, Tate Access Floors Inc v Boswell [1991] Ch 512 at 526; even where the parties to both actions are identical: see [ Riddick v Thames Board Mills L…
Central Queensland Cement Pty Ltd v Hardy
1981 KB 534 Para 23

…rwise have had, of having in her possession copies of other people’s documents.”[16] [14] Alterskye v Scott [1948] 1 All ER 469 at 470; see Central Queensland Cement Pty Ltd v Hardy (1989) 2 Qd R 509 at 510. [15] [1983] 1 AC 280 at 302. [16] Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10 at 36 per Brennan J.…

Legislation cited in this decision · 2

Safety, Rehabilitation and Compensation Act 1988 (Cth)
29, 57, 69(a), 70, 72 6 mentions (from Para 2)
Administrative Appeals Tribunal Act 1975 (Cth)
1 mention (from Para 12)