Cook and National Disability Insurance Agency
[2021] AATA 1111
•4 May 2021
Cook and National Disability Insurance Agency [2021] AATA 1111 (4 May 2021)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2020/3331
Re:Leisa Cook
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Deputy President J W Constance
Date:4 May 2021
Place:Sydney
The Respondent is released from the implied undertaking in respect of the following documents:
(a)Supplementary report of Krystele Hurcum, occupational therapist, dated 17 September 2020 lodged by the Applicant on 18 September 2020;
(b)Email chain between James Miller, disability advocate, and Justyn Cook, physiotherapist, dated 21 September 2020 lodged by the Applicant on 24 September 2020; and
(c)Documents produced under summons by:
(i)Medical Records, Medicolegal, Royal Prince Alfred Hospital, The Proper Officer (Metabolism and Obesity Services Clinic);
(ii)Maitland Orthopaedics and Rehab Specialists, The Practice Manager (Dr Rebecca Beiers, rehabilitation medicine consultant);
(iii)Hunter Diabetes Centre, The Practice Manager (Dr Claire Morbey, endocrinologist);
(iv)Dr Rod Gillespie, dermatologist;
(v)Dr Brain Draganic, colorectal and general surgeon;
(vi)Broadmeadow Neurology, The Practice Manager (Dr Tom Wellings, neurologist);
(vii)A/Prof Michael Boyle, immunologist; and
(viii)Adamstown Clinic, The Practice Manager (Dr Edward Bennett, general practitioner).
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Deputy President J W Constance
CATCHWORDS
PRACTICE AND PROCEDURE – implied undertaking – where release is for the purpose of assessing the Applicant’s entitlements under the NDIS Act – where documents produced under compulsion – nature of Tribunal’s discretion to release a party from the implied undertaking – circumstances of the case – nature of the National Disability Insurance Scheme – where ongoing relationship between the parties – where documents would otherwise be available – interests of good public administration for decision makers to have available material before it when making reviewable decisions – where Applicant consented to use of information by the Agency – release from the implied undertaking granted
CASES
Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3
LMFP and Comcare (Compensation) [2017] AATA 1512
NWCB, ZFND and GXFS and National Disability Insurance Agency [2020] AATA 4555
Otter Gold Mines Ltd v Deputy President G L McDonald of the Administrative Appeals & Ors [1997] FCA 694
REASONS FOR DECISION
Deputy President J W Constance
INTRODUCTION
4 May 2021
Ms Cook is a participant in the National Disability Insurance Scheme.
In June 2020 Ms Cook applied to the Tribunal to review a decision of the Respondent Agency to refuse her request that it fund the installation of a swimming pool and awning at her home and the provision of a computer as a reasonable and necessary supports under the National Disability Insurance Scheme Act 2013 (Cth) (“the NDIS Act”).
During the Tribunal’s alternative dispute resolution processes prior to the matter being set down for hearing, several documents were produced to the Tribunal as a result of summonses issued at the request of the Agency. The Tribunal permitted both parties to inspect and copy these documents. Ms Cook also produced additional documents to the Tribunal and provided copies to the Agency.
In October 2020 the Agency applied to the Tribunal for an order releasing it from its implied obligation not to use the documents for any purpose other than the conduct of the application then before the Tribunal. Ms Cook opposed the application for release from the undertaking.
For the reasons which follow I have decided that the Agency will be released from its undertaking.
BACKGROUND
The application for review, lodged in the Tribunal on 1 June 2020 by the Applicant, related to a swimming pool, an associated awning and a computer. No other supports were in issue.
In accordance with a direction of the Tribunal made 10 August 2020, Ms Cook lodged in the Tribunal and provided to the Agency copies of the following:
·a report of an Occupational Therapist;
·emails between her Disability Advocate and her Physiotherapist.
On 21 August 2020, at the request of the Agency, the Tribunal issued summonses to produce documents to nine health professionals and organisations requiring the production of medical records relating to Ms Cook. Documents were produced in answer to the summonses and both parties were given leave to inspect and copy the documents.
On 23 October 2020 Ms Cook advised the Tribunal that she intended to withdraw her application for review of the Agency’s decision. She did so on 27 October 2020.
THE AGENCY’S REQUEST FOR RELEASE AND MS COOK’S OBJECTION
On 23 October 2020 (the same day that Ms Cook notified her intention to withdraw the proceedings) the Agency applied to be released from its implied undertaking as to the use of the documents produced. The request was made in the following terms:
The Respondent respectfully requests that the Tribunal releases it from the implied undertaking in respect of the following documents, so that the Respondent may use these documents for the purposes of administering the National Disability Insurance Scheme Act 2013 in respect of the Applicant, including for planning purposes:
[here followed a list of the documents lodged by Ms Cook and the documents produced in response to the summonses referred to above]
We have copied the Applicant and her advocate and would be grateful if either could respond indicating whether the Applicant consents to this request. [Emphasis added].
On 29 October 2020 Ms Cook advised the Tribunal that she objected to the Agency being released from its undertaking. The objection stated:
We advise that the Applicant does not consent for the respondent to be released from the implied undertaking. It is the applicants understanding the undertaking is made available to assist people to fully engage in the process at the Tribunal and is only to be waived in special circumstances. Based on the respondents’ most recent statement of issues at paragraphs 20-23 there are concerns that the Respondent intends to utilise this information to look at the disability criteria in s24(1) and may be used for the purposes of reducing supports as they do not relate to a disability in relation to Rule 5.1(b) as is mentioned in paragraph 13. Further the issue in dispute at the Tribunal was relating to a specific support item, rather than to the planning process as a whole, or multiple support items. Overall the applicant objects to this request as she feels that the request to release information will be used for an ulterior purpose than they were intended.
THE TRIBUNAL’S GENERAL PRACTICE DIRECTION OF 28 FEBRUARY 2019
The Practice Direction provides, in part:
5.2 If you or the decision-maker have obtained a document provided under compulsion in an application before the AAT, you, the decision-maker and any person to whom the document is given, by implication, undertake to the AAT that the document will not be used for any purpose other than the purpose for which it was given to us unless:
(a) the document was received in evidence by us in the application and the confidentiality of the document is not protected by an order under section 35 of the AAT Act or by another statutory provision; or
(b) we give you or the decision-maker permission to use the document for another purpose.
5.3 Documents to which the implied undertaking applies include:
(a) documents lodged under section 37 or 38AA of the AAT Act;
(b) documents lodged pursuant to a direction given by us (for example, expert reports or witness statements); and
(c) documents produced in response to a summons issued by us.
5.4 The implied undertaking continues even after an application has been finalised. Breach of the implied undertaking by using the documents for another purpose may constitute a criminal offence under section 63 of the AAT Act on the basis that it could, if the AAT were a court of record, constitute a contempt of court.
……
Use of documents in any other circumstance
5.6 If you or the decision-maker want to use a document for another purpose, including a document that was given to us in an application that has been finalised, you or they must apply to us for leave to be released from the implied undertaking. The request must:
(a) be in writing;
(b) specify with particularity the documents in relation to which release is sought;
(c) tell us clearly why you want the release and who will use the documents; and (d) if possible, specify whether or not the person to whom the documents relate consents to the release from the implied undertaking.
5.7 Unless you or the decision-maker believes it is not necessary or appropriate, a copy of the request must be sent to the other party or parties to the application in which the documents were originally provided. We might require you or the decision-maker to give a copy of the request to another party or other person if we think it is appropriate.
FURTHER INFORMATION PROVIDED BY THE AGENCY
In Submissions filed on 23 November 2020 the Agency advised:
33. The Respondent seeks a release from the implied undertaking as it applies to the documents (listed at paragraph 20 above), so that it may use them for the purposes of assessing the Applicant’s entitlements under the NDIS Act.
34. If the Respondent is released from the implied undertaking, people employed by or contracted to the Respondent who are responsible for considering and making decisions about the Applicant’s entitlements under the NDIS Act will use the documents for that purpose.
So far as possible all the information required by the Practice Direction should be provided at the time the request for release is made. However, as the additional information was provided prior to the hearing of the request for release, I do not consider that there has been any disadvantage to Ms Cook.
CONSIDERATION
The documents in question were produced under compulsion, by either a summons to produce documents or a direction of the Tribunal;[1] they were not documents taken into evidence. On this basis they are subject to the implied undertaking referred to in the General Practice Direction.
[1] Otter Gold Mines Ltd v Deputy President G L McDonald of the Administrative Appeals & Ors [1997] FCA 694.
Once the undertaking is in place the Tribunal has a broad discretion in deciding whether the documents should be available for use for purposes beyond those of the proceedings in which they were produced.
In this application I have reached the conclusion that the Agency should be released from its undertaking in respect of all the documents. My reasons follow.
First, the nature of the National Disability Insurance Scheme is different to other jurisdictions in which the Tribunal and the Courts have considered whether the undertaking should be released.
The documents have not been produced in litigious proceedings before a court between parties who are unlikely to have an ongoing relationship. As Ms Cook is a participant in the Scheme she will have an ongoing relationship with the Agency which is required to regularly review her plan. The documents will assist the Agency in making decisions in relation to Ms Cook’s plans, possibly for years to come. On the material before me there is no apparent reason why the Agency should be required to take the time and incur the expense to obtain, by other means, documents which are already in its possession.
Ms Cook has argued that although the documents were produced in proceedings related to particular supports requested by her, they may be used by the Agency in considering other supports and in considering whether she should remain a participant in the Scheme. I do not consider that this is a relevant consideration in view of the ongoing relationship between herself as a participant and the Agency as the body responsible for the administration of the Scheme. Given the ongoing supports being provided to Ms Cook under her present plan and the potential for further supports under future plans, the Agency’s request to be permitted to use the documents “for the purposes of assessing the Applicant’s entitlements under the NDIS Act”[2] is appropriate.
[2] Respondents Submissions as to its request for a release from the implied undertaking dated 23 November 2020 at [33].
Secondly, if the Agency makes decisions relating to other supports or Ms Cook’s continuing participation in the Scheme, it is likely that all of the documents would be available to it should Ms Cook apply to the Tribunal to review those decisions. It is in the interests of Ms Cook and the interests of good public administration that the Agency have all available material before it in making reviewable decisions to minimize the need for administrative review by the Tribunal.
I note that this was a consideration taken into account by the Tribunal in LMFP and Comcare (Compensation)[3] and in NWCB, ZFND and GXFS and National Disability Insurance Agency.[4]
[3] [2017] AATA 1512 at [3].
[4] [2020] AATA 4555 at [16].
Thirdly, when making any future decisions in relation to Ms Cook’s entitlement to supports under the Scheme, the Chief Executive Officer can request Ms Cook and others to provide information that is reasonably necessary for the making of those decisions.
Again, it is likely that the information contained in the documents in question would fall within this category. The Agency should not be required to incur the time and expense of the Chief Executive Officer exercising this power in respect of documents, copies of which are already within its possession. Further, the availability of the documents may avoid Ms Cook having to attend for further medical examinations.
Section 36 of the NDIS Act provides, in part:
(1) For the purposes of preparing a statement of participant supports, or deciding whether to approve a statement of participant supports, the CEO may make one or more requests under subsection (2).
(2) The requests the CEO may make are as follows:
(a) that the participant, or another person, provide information that is reasonably necessary for the purposes of preparing the statement of participant supports, or deciding whether to approve the statement of participant supports;
(b) that the participant do either or both of the following:
(i) undergo an assessment and provide to the CEO the report, in the approved form, of the person who conducts the assessment;
(ii) undergo, whether or not at a particular place, a medical, psychiatric, psychological or other examination, conducted by an appropriately qualified person, and provide to the CEO the report, in the approved form, of the person who conducts the examination.
Fourthly, when she applied to become a participant in the Scheme in December 2014, Ms Cook completed Part L of the Access Request Form provided by the Agency. In doing so she answered “yes” to each of the following:
Do you consent to the NDIA talking to other people about you, giving them information about you and getting information about you from:
1. The Australian Government Department of Human services (including Centrelink and Medicare).
2. State or Territory Government departments.
3. Your medical practitioners and health professionals
4. Your service providers
5. Any schools you have attended
[Emphasis added]
The above questions and answers were immediately preceded by:
Part L: Giving consent
The NDIA needs information about you to:
- Decide whether you can become a participant in the NDIS
- Develop your plan if you become a participant
- Do other things that are part of the NDIS.
When she completed the form Ms Cook acknowledged that she understood that she could withdraw her consent at any time. I have not been informed that Ms Cook has done this.
In considering an application for release from the undertaking in the NDIS Division, it is not necessary that the Tribunal be satisfied that there are extraordinary circumstances that justify the exercise of the Tribunal’s discretion in favour of the Agency.
In Liberty Funding Pty Ltd v Phoenix Capital Ltd[5] the Full Court of the Federal Court said:
In order to be released from the implied undertaking it has been said that a party in the position of the appellants must show "special circumstances": see, for example, Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217. It is unnecessary to examine the authorities in this area in any detail. The parties were not in disagreement as to the legal principles. 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 or for other non-litigious purposes. The discretion is a broad one and all the circumstances of the case must be examined.
[5] [2005] FCAFC 3 at [31].
Each application for release from the implied undertaking should be considered on the basis of the relevant material and the circumstances of the particular matter. I acknowledge that the approach I have taken in this application, if applied to other applications, will make it likely most applications for release in the NDIS Division will be successful. This is a result of the provisions of the NDIS Act which established the Scheme, to which I have referred earlier in these reasons. However, there may be circumstances in particular proceedings which will lead to the release being refused. Each matter will be dealt with on its merits.
In preparing these reasons I acknowledge the assistance provided by the careful and detailed submissions provided by the Solicitors for the Agency.
I certify that the preceding 32 (thirty -two) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance
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Associate
Dated: 4 May 2021
Date(s) of hearing: 26 November 2020 Advocate for the Applicant: J Miller, Disability Advocacy NSW Solicitors for the Applicant: S Parker, Legal Aid NSW Solicitors for the Respondent: S Leembruggen, Sparke Helmore
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