Clover and Australian Postal Corporation
[2025] ARTA 1603
•8 August 2025
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 881Statement 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 given unless received in evidence. The obligation directly binds the party and any servant or agent (Hearne v Street).[2] The obligation applies in Tribunals, including the Administrative Review Tribunal (Otter Gold Mines).[3]
[1] The name is derived from the decision of the House of Lords in Harman v Secretary of State for Home Department [1983] 1 AC 280 (Harman).
[2] Hearne v Street (2008) 235 CLR 125, at 154-155 [96] and 156-160, [102]-[108], per Hayne, Heydon and Crennan JJ with whom Gleeson CJ agreed.
[3] Otter Gold Mines Ltd v McDonald and Ors (1997) 76 FCR 467 per Sundberg J at 471-473.
The respondent sought leave to use certain documents for the stated purpose ‘to assess its liability, if any, and obtain legal advice in connection with concurrent proceedings brought by the Applicant in the Federal Court of Australia.’[4]
[4] Affidavit of Michael Snell, 24 May 2024 [3].
The documents subject to the application comprise the clinical notes made by three medical practices, Guardian Medical Centre, Psychological Services Group and Arrowhead Medical Centre, that were returned in answer to summonses issued by the Tribunal dealing with the treatment of the applicant, Ms Clover, for her psychiatric condition. In addition, there are reports of two medical experts who have formed opinions, in part, from information derived from knowledge of the clinical notes summonsed to the Tribunal. I have taken into account the report of Dr Kaplan of 7 July 2023 and that of Dr Mendelson of 5 December 2023, both of which acknowledge receipt of copies of the summonsed materials. The Harman obligation is not confined to documents but extends to information derived from those documents whether embodied in a copy or stored in the mind (Crest Homes).[5]
[5] Crest Homes Plc v Marks [1987] AC 829, 854 per Lord Oliver of Aylmerton (with whom all the remaining Law Lords agreed).
The respondent’s stated purpose is clearly collateral to the purposes for which disclosure of the documents was obtained in Tribunal proceedings. In the present case before the Tribunal Ms Clover seeks review of two decisions made by the respondent to deny liability to pay compensation pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act). In matter number 2023/0244, the reviewable decision dated 22 December 2022[6] rejected liability in respect of an injury described as ‘mental and psychological damages’ in a claim made on 4 August 2022.[7] In matter number 2023/5650, the reviewable decision dated 2 August 2023[8] denied liability in respect of an injury described as ‘psychiatric condition’ in her claim dated 23 May 2023.[9]
[6] 2023/0244 T23, 116-118. References to ‘T-Documents’ are references to documents lodged with the Tribunal pursuant to a Notice to the Respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act), in operation when the application commenced. They are generally known as ‘Tribunal documents’, sequentially numbered, with subsequent page references. On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
[7] 2023/0244 T9, 54-60.
[8] 2023/5650 T10, 37-40.
[9] 2023/5650 T7, 25-30.
The Federal Court proceeding is one which claims relief in various forms, including damages by way of compensation for loss or damages suffered by the applicant because of the conduct of the respondent pursuant to section 46PO(4)(d) of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act). That legislation is designed to provide redress for unlawful discrimination, including sexual harassment. The operation of the AHRC Act in relation to the SRC Act was considered in some detail in Comcare v Friend [2024] FCAFC 4; (2024) 301 FCR 617. Relevantly, an employee entitled to compensation pursuant to the SRC Act is not barred from seeking damages pursuant to the AHRC Act from the Commonwealth or a Commonwealth authority, by the operation of section 44 of the SRC Act. Both remedies are available.
There is a second respondent in those proceedings, a Mr Wilson, who is an employee of Australia Post. It is presumed that he does not have the documents since he is not a party to the present Tribunal review proceeding and hence not entitled to those documents. He could hardly have obtained the documents by any other means other than in breach of the implied undertaking. He was not identified by the respondent in the directions hearing as one of its ‘privies.’
The applicant’s Amended Statement of Claim in the Federal Court matter was produced as an exhibit to the Affidavit of Michael Snell dated 24 May 2024. Various facts are asserted by the applicant in that pleading providing a basis for concluding that sections 28B of the Sex Discrimination Act 1984 (Cth) (SD Act) had been contravened. Those facts relate to facts and circumstances to which she was exposed in the course of her employment between February 2022 and July 2022 and from which she alleged various emotional and psychiatric consequences were personally suffered by her.
A collateral purpose that is not consistent with the obligation to maintain confidentiality would be the use of documents obtained in one proceeding as the foundation of a claim in a different and wholly unrelated proceeding (see Riddick v Thames Board Mills Ltd [1977] QB 881). There is no allegation that either of the parties in the present proceeding has done so in formulating a statement of claim or defence or other steps in the separate Federal Court proceeding for relief pursuant to the AHRC Act. However, the respondent has now sought to be relieved of its obligation for the purposes described in Mr Snell’s Affidavit of 24 May 2024.
Release or modification of the Harman obligation will not be granted save in special circumstances (Crest Homes).[10] In most cases of variation of the undertaking, it is documents obtained in discovery or affidavit evidence that is the basis of the application for release. Hence, it is stated that a primary caution in exercise of the court’s discretion is to ensure such release or modification will not occasion injustice to the person giving discovery.
[10] Crest Homes [1987] AC 829, 860.
In Australian courts, the demonstration of ‘special circumstances’ has in some instances been thought not to be too onerous,[11] the view expressed by Wilcox J in Springfield Nominees Pty Ltd v Bridgelands Securities Limited (1992) 38 FCR 217, 225 is most frequently cited:
For "special circumstances" to exist it is enough that there is a special feature of the case which affords a reason for modifying or releasing the undertaking and is not usually present. The matter then becomes one of the proper exercise of the court's discretion, many factors being relevant. It is neither possible nor desirable to propound an exhaustive list of those factors. But plainly they include the nature of the document, the circumstances under which it came into existence, the attitude of the author of the document and any prejudice the author may sustain, whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain, the nature of the information in the document (in particular whether it contains personal data or commercially sensitive information), the circumstances in which the document came into the hands of the applicant for leave and, perhaps most important of all, the likely contribution of the document to achieving justice in the second proceeding.
[11] Holpitt Pty Ltd v Varimu Pty Ltd and Others (1991) 29 FCR 576
The respondent developed its submission in the present application by reference to the various factors identified in that case.
I find that special circumstances exist in the present case to justify the releasing of both parties from their obligation of confidentiality owed to the Tribunal in respect of the documents identified in the request, including, in the case of the applicant, the Tribunal documents and supplementary Tribunal documents filed in both matters 2023-0244 and 2023-5650.
The Federal Court proceeding, though collateral to the Tribunal proceeding, is very closely related. The remedy sought pursuant to the AHRC Act is for damage and compensation owing to breaches of the SD Act which is evidenced by the employment facts and circumstances experienced by the applicant from February to July 2022. The Tribunal proceeding is for compensation pursuant to the SRC Act in respect of injury arising out of or in the course of employment or ailment to which employment contributed to a significant degree. All the facts and circumstances pleaded in the Federal Court action will be available for consideration in the present Tribunal review. Those documents have a likely contribution to achieving justice in both proceedings.
In Crest Homes Plc v Marks [1987] AC 829 the House of Lords, special circumstances were found to exist by the fact that two separate actions, one in 1984 and then in 1985 between the same parties were, in substance, a ‘single set of proceedings’ which were to be heard together. The plaintiff had sought protection in 1984 for is copyright over house designs. The court ordered the defendant to give up custody of all copies of the plaintiff’s design materials and it appeared to the plaintiff that only two designs had been retained and undertakings were given by the defendant in relation to those designs. The following year it became apparent that the defendant had infringed a number of other designs, and a fresh action was commenced and further order for delivery of a large number of copyright design materials were ordered, including the same designs subject to the earlier order. This time a wider range of infringements were discovered, but also including designs that should have been covered by the 1984 orders. An apparent breach of undertakings thus became clear and the plaintiff sought release from its undertakings in respect of the 1984 discovery materials to launch proceedings for contempt of court. The special circumstances for release from the undertakings in the earlier action was established on the fact of the substance of the matters were such that they ought not be separated.
The present applicant, in separate proceedings seeks to vindicate two statutory entitlements to compensation for harm sustained in her employment circumstances, one by way of review in the Tribunal of entitlements under the SRC Act, the other by claim in the Federal Court of statutory compensation under the AHRC Act. It is a matter of jurisdiction only that the two statutory entitlements must be pursued in separate venues. In ordinary civil litigation it is a rule that parties to litigation are required to bring the whole of their case and will not be allowed to open the same subject of litigation in respect of a matter which might have been brought forward as part of the subject in contest (Henderson v Henderson (1843) 67 ER at 319, Sir James Wigram VC, referred to in Port of Melbourne Authority v Anshun Proprietary Limited (1981) 147 CLR 589). Had the statutes permitted, the claims could have been heard together in a single proceeding with no injustice to either party.
Both parties have obtained the medical reports in question for use in this review - Dr Kaplan’s report by the applicant, Dr Mendelson’s report by the respondent. Both these reports go to the issue of whether some harm has been sustained because of the exposure to facts and circumstances to be considered in both proceedings. However, both reports were created with the expectation they would be used to consider the nature of the harm, its causation and relationship with the employment events which is common to both proceedings. Both reports when evidence is presented at hearing, will come into the public domain. There is no harm to either of the medical experts who provided these reports should they also be used in the Federal Court proceedings.
The reports are, as noted above, unable to be used by the parties because the opinions expressed were in part informed by information derived from the summonsed clinical notes. There is every reason therefore to release the clinical notes from which the experts derived that information. The degree to which opinions may be admissible may not necessarily be identical in the Federal Court, where the Evidence Act 1995 applies, compared to the Tribunal which is not bound by rules of evidence. However, that is no reason to refuse the release of the undertaking.
The similarity in both proceedings, given the closeness of the remedy (financial compensation), due to some hurt or harm (injury, loss or damage) arising from virtually identical sets of circumstances (the employment experiences in 2022) provide just such circumstances to take this case out of the ordinary and justifies release from the undertaking.
This application was made by the respondent and was resisted by the applicant. However, the release from the undertaking for use in the Federal Court proceeding, if justified for the respondent is equally justified for the applicant. In addition to the order releasing both parties in respect of the two medical reports and the clinical notes to which the medical experts had, in part, derived knowledge that assisted in the formulation of their opinions, should also include the Tribunal documents and supplementary Tribunal documents filed in both matters 2023-0244 and 2023-5650. Those documents, received by the applicant by reason of the respondent’s compliance with a notice issued by the former Administrative Appeals Tribunal, are covered by the undertaking.
The release from the undertaking given to both parties in respect of the identified documents is not a general release but restricted to use in the Federal Court proceedings.
Dated: 8 August 2025
Hearing: 31 July 2025
Appearances:
Counsel for Applicant: Mr Karl Pattenden
Solicitor for Applicant: Danielle Moran, Slater & Gordon Limited
Counsel for Respondent: Mr Peter Woulfe
Solicitor for Respondent: Michael Snell, McInnes Wilson Lawyers
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