DVFW and Comcare (Compensation) - [2019] AATA 2366

DVFW and Comcare (Compensation) [2019] AATA 2366 (7 June 2019)
Division:GENERAL DIVISION
File Number(s): 2018/3869, 2018/4369
Re:DVFW
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Mrs J C Kelly, Senior Member
Date:7 June 2019
Date of written reasons: 5 August 2019
Place:Sydney

For the reasons given orally at the interlocutory hearing on 7 June 2019, the Tribunal decides that the Respondent and its delegates do not require a release from the implied undertaking in order to use the documents produced to the Tribunal under summons and included in the Supplementary T-Documents received 7 March 2019, ST1 to ST 33 inclusive, for the purpose of management of her claims in respect of her accepted condition, ‘aggravation of personality disorder’.
..................................[SGD]......................................
Mrs J C Kelly, Senior Member
CATCHWORDS
PRACTICE AND PROCEDURE – release from implied undertaking in relation to summonsed documents – documents produced under summons for substantive proceedings – summonsed documents used by Respondent and delegates as part of claims management of accepted condition – documents not used for collateral purpose – summonsed documents not subject to implied undertaking - Tribunal is part of claims management process – release from implied undertaking not required
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth)
CASES
Chin v Comcare [2017] AATA 634
LMFP v Comcare [2017] AATA 1512
Oliver v Comcare [2018] AATA 1964
Richmond v Comcare [2019] AATA 100
Warner v Comcare [2017] AATA 2709
REASONS FOR DECISION
Mrs J C Kelly, Senior Member
5 August 2019

The Applicant, DVFW, has objected to Comcare, the Respondent, and its delegates, Department of Human Services (DHS), and Allianz, the insurer, from using material that was produced to the Tribunal under summons from several of her treating practitioners in connection with the management of her claim for the condition, ‘aggravation of personality disorder’ for which liability has been accepted under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) (the accepted condition).
She currently has two proceedings before the Tribunal relating to the accepted condition. In proceedings 2018/3869 DVFW seeks the review of a decision to deny compensation for a medication, phentermine. In the other proceedings (2018/4639) DVFW seeks review of a decision that calculated her normal weekly earnings (NWE) by reference to four days of work per week.
The issue to be decided is whether Comcare, DHS and Allianz, are subject to an implied undertaking not to use the documents produced to the Tribunal under summons, for a collateral purpose, and, if so, whether they should be released from that undertaking.
The Tribunal notes DVFW’s concern that personal, very sensitive information is included in the documents produced under summons.
Comcare and DVFW provided written submissions to the Tribunal. They both addressed the principles that have been enunciated by the Courts and this Tribunal.
In terms of all the authorities that are before the Tribunal, including Richmond v Comcare [2019] AATA 100, Warner v Comcare [2017] AATA 2709, Oliver v Comcare [2018] AATA 1964, Chin v Comcare [2017] AATA…

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 DVFW and Comcare (Compensation)

Details

AGLC: DVFW and Comcare (Compensation) [2019] AATA 2366
Case: [2019] AATA 2366
Decision Date: 7 June 2019

CaseChat Overview and Summary

This matter concerned an application by DVFW for release from an implied undertaking in relation to documents that had been produced under summons for substantive proceedings before the Tribunal. Comcare was the respondent.

The central legal issue before the Tribunal was whether the implied undertaking that ordinarily attaches to documents produced under a summons extended to documents that Comcare and its delegates had used as part of the claims management process for an accepted condition. The applicant sought a determination that release from this undertaking was required.

The Tribunal reasoned that the implied undertaking exists to prevent the collateral use of documents obtained through compulsory process. However, in this instance, the documents in question had been used by Comcare and its delegates in the ordinary course of managing the accepted claim. The Tribunal considered itself to be an integral part of the claims management process, and therefore, the use of the documents by Comcare in that context did not constitute a collateral purpose. Accordingly, the Tribunal concluded that the summonsed documents were not subject to an implied undertaking that required release.

Orders