Clover and Australian Postal Corporation - [2025] ARTA 1603

Clover and Australian Postal Corporation [2025] ARTA 1603 (8 August 2025)
Applicant/s:  Soniane Clover
Respondent:  Australian Postal Corporation
Tribunal Number:                2023/0244

Tribunal:General Member M. Carey
Place:Melbourne
Date:8 August 2025

Decision:

Both the applicant and respondent, for the purposes of the conduct of their own cases, have leave to use in Federal Court proceedings VID598/2023 between Soniane Clover v Australian Postal Corporation trading as Australia Post and Another the following documents:
1.        Documents produced under summons by Psychological Services Group;
2.        Documents produced under summons by Guardian Medical Centre;
3.        Documents produced under summons by Arrowhead Medical Centre;
4.        Report of Professor George Mendelson dated 5 December 2023; and
5.        Report of Dr Albert Kaplan dated 7 July 2023.
Further, the applicant, for the purposes of the conduct of her own case, has leave to use in Federal Court proceedings VID598/2023 between Soniane Clover v Australian Postal Corporation trading as Australia Post and Another the Tribunal documents and supplementary Tribunal documents filed in both matters 2023-0244 and 2023-5650.
...........................[sgd].............................................
General Member M. Carey
Catchwords
RELEASE FROM UNDERTAKING – Harman obligation – documents received by respondent from compulsory Tribunal process of summons – reports drawn from information derived from summonsed clinical notes – collateral purpose of respondent’s use of documents in Federal Court proceedings – special circumstances to be shown favouring release from undertaking – consideration of common factual issues between Tribunal proceedings and Federal Court proceedings – discretion enlivened – release granted to respondent and applicant and not third party – release restricted to use in Federal Court proceedings only and subject to control of the Federal Court - no general release granted.
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Australian Human Rights Commission Act 1986 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Sex Discrimination Act 1984 (Cth)
Cases
Comcare v Friend [2024] FCAFC 4; (2024) 301 FCR 617
Crest Homes Plc v Marks [1987] AC 829
Harman v Secretary of State for Home Department [1983] 1 AC 280
Hearne v Street (2008) 235 CLR 125
Henderson v Henderson (1843) 67 ER at 319
Otter Gold Mines Ltd v McDonald and Ors (1997) 76 FCR 467
Port of Melbourne Authority v Anshun Proprietary Limited (1981) 147 CLR 589
Riddick v Thames Board Mills Ltd [1977] QB 881
Statement of Reasons

The respondent in this proceeding, the Australian Postal Corporation, has applied for release from its undertaking not to use documents it has obtained in these proceedings by reason of the compulsory processes of the Tribunal for the purpose of conduct of its defence to a claim made by the applicant, Ms Clover, in separate proceedings in the Federal Court of Australia.
The undertaking, commonly referred to as the ‘Harman obligation’[1] is a substantive legal obligation implied by law that prevents any party which obtains disclosure of documents or information by means of compulsory court processes they may not, without leave of the court, use it for any purpose other than that for which it was…

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.

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Details

Case: [2025] ARTA 1603
Decision Date: 8 August 2025

CaseChat Overview and Summary

Clover and Australian Postal Corporation was a case heard in the Federal Court of Australia. The dispute involved Clover, the applicant, and the Australian Postal Corporation, the respondent, concerning the release of documents that had been obtained by the respondent through a compulsory Tribunal process. These documents were clinical notes which had been summoned and subsequently used by the respondent in Federal Court proceedings. Clover sought the release of these documents from the undertakings made to the Tribunal, arguing that the respondent's use of the documents served a collateral purpose in the Federal Court.

The legal issues that the court needed to decide revolved around whether the respondent's use of the documents for a collateral purpose justified their release from the undertaking, and whether special circumstances existed that favoured such a release. The court also needed to consider the common factual issues between the Tribunal proceedings and the Federal Court proceedings, and whether these circumstances could enliven the court's discretion to grant the release. Additionally, the court had to determine whether the release should be granted to the respondent and the applicant, or if it should also include a third party, and what restrictions, if any, should be placed on the use of the documents.

The court found that the respondent's use of the documents for a collateral purpose in the Federal Court did justify their release from the undertaking. The common factual issues between the two sets of proceedings were significant, and these special circumstances did indeed favour the release. However, the court was cautious in granting the release, deciding that it should be restricted to the use in the Federal Court proceedings and subject to the control of the court. The release was granted to the respondent and the applicant, but not to any third party. The court did not grant a general release, ensuring that the documents remained subject to specific controls and limitations as to their use.

Orders