Ellercamp and Comcare
[2025] ARTA 637
•27 May 2025
Ellercamp and Comcare [2025] ARTA 637 (27 May 2025)
Applicant/s: Ellercamp
Respondent: Comcare
Tribunal Number: 2024/3971
Tribunal:General Member Mark Carey
Place:Melbourne
Date:27 May 2025
Decision:The application to release the parties from the implied undertaking is denied.
....................[SGD].................
General Member Mark Carey
Catchwords
IMPLIED UNDERTAKING – application of the Harman Obligation – obligation imposed by law on parties to litigation – application of rule in tribunal proceedings – documents covered by obligation – finalisation of proceedings – application to tribunal for release from the implied undertaking – consideration of special circumstances justifying release – factors to be considered in respect of exercise of discretion – claimed purpose of ‘ongoing claims management’ – release not justified – application for release from implied undertaking refused.
Legislation
Administrative Review Tribunal Act 2024
Safety Rehabilitation and Compensation Act 1988Cases
Chin and Comcare [2017] AATA 634; (2017) 160 ALD 176
Crest Homes Plc v Marks [1987] AC 829
DVFW and Comcare [2019] AATA 2366
Esso Australia Resources Ltd v Plowman (1994) 183 CLR 10
Harman v Secretary of State for the Home Department [1983] 1 AC 280
Hearne v Street (2008) 235 CLR 125
Holpitt Pty Ltd v Varimu Pty Ltd (1991) 29 FCR 576
Lees v Comcare [1999] FCA 753; (1999) 56 ALD 84
Liu and Comcare [2004] AATA 617; (2004) 79 ALD 119
Newey and Comcare [2019] AATA 1772
Oliver and Comcare [2018] AATA 1964
Otter Gold Mines Ltd v McDonald and Ors (1997) 76 FCR 467
Riddick v Thames Board Mills Ltd [1977] QB 881
Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217
Trade Practices Commission v Arnotts [1989] FCA 248; (1989) 88 ALR 90
Walsh and Comcare [2022] AATA 158Secondary Materials
Administrative Review Tribunal (Common Procedures) Practice Directions, 2024.
Matthew Groves, ‘The implied undertaking restricting the use of material obtained during legal proceedings’ (2003) 23 Australian Bar Review 314.
Statement of Reasons
The parties have come to an agreement pursuant to section 103 of the Administrative Review Tribunal Act 2024 (ART Act) to resolve the dispute giving rise to these proceedings. The Tribunal has approved an order setting aside the Respondent’s reviewable decision and in substitution for that decision decided that Comcare is liable to pay compensation pursuant to section 14 of the Safety Rehabilitation and Compensation Act 1988 (SRC Act) to Ms Ellercamp in respect of an injury identified as ‘aggravation of chronic major depressive disorder’ with a date of injury of 3 August 2023. Further, the decision states that the Respondent shall pay the Applicant’s costs of the proceeding in a fixed amount in accordance with section 67 of the SRC Act.
While this order concludes the dispute, the Tribunal’s jurisdiction is not exhausted and there is an application for the Respondent to be released from the implied undertaking in relation to certain documents that have come into the hands of the Respondent by operation of the Tribunal’s compulsory processes:
(a)Documents produced in response to the summons issued by the Tribunal were by:
(i)Michael Childs
(ii)Dr Russell Hinton
(iii)Lakeside Clinic Consulting Rooms
(iv)The Lorn Surgery
(v)Rutherford Medical Centre
(b)The report of Associate Professor Michael Robertson, psychiatrist, dated 22 November 2024 that was obtained by the Applicant in the course of proceedings and required to be given to the Respondent under the Administrative Review Tribunal (Common Procedures) Practice Directions, 2024 or some specific direction in the course of proceedings.
The Respondent seeks release from its undertaking not to use such documents for any purposes other than the proceedings, now concluded, and says that it wants the release ‘so that these documents can be used for ongoing claims management purposes’.
The application raises general issues concerning the operation of the implied undertaking in relation to Tribunal proceedings, the nature of the undertaking, the identification of any collateral or ulterior purpose, and whether ‘claims management processes’ fall into the category of a collateral or ulterior purpose.
For the reasons set out below, the application is refused.
The implied undertaking or Harman Obligation
In general law, an undertaking is a promise, defined in Osborne’s Concise Law Dictionary (7th Edition, 1983) as ‘especially a promise in the course of legal proceedings, given by a party, or his counsel, which may be enforced by attachment or otherwise in the same manner as an injunction.’
The undertaking, referred to as the ‘Harman Obligation’, is one implied by law, that documents which that party obtains in the course of legal proceedings by reason of the court’s compulsory processes must not be used for any other purpose (often referred to as a collateral or ulterior process). The undertaking may be enforced by a court by means of injunction. Breach of this obligation by a party is a contempt of court and lays that party open to penalties for contempt.
The name of the undertaking is derived from the decision of the House of Lords in Harman v Secretary of State for Home Department [1983] 1 AC 280 (Harman) where the Home Office was granted an order holding the plaintiff’s solicitor in contempt. The Home Office was the subject of a highly critical article that was published using documents obtained in the course of proceedings conducted on behalf of a prisoner seeking damages for harsh treatment during confinement in the custody of the Home Office. Those documents were received by the plaintiff’s solicitor on the basis that the documents so discovered should not be used for any purpose other than the case in question. The documents had been read out in open court though not received into evidence. The solicitor provided the documents to the journalist who prepared the article. The House was divided over when the obligation might end, whether reading in open court thus destroying the confidentiality, or being received in evidence. However, while confidentiality was relevant, the protection of the interest of the proper administration of justice was found to be ‘owed not to the owner of the documents but to the court, and the function of the court in seeing that the obligation is observed is directed to the maintenance of those interests.’ On that view, whether the documents were read in open court was not the key issue, but whether the party seeking to use the documents for another purpose was granted leave by the court to do so.
The ‘implied undertaking’ is recognised in Australia as ‘a substantive legal obligation’ which binds the party receiving documents under compulsory court processes. Any servant or agent of that party is also ‘directly bound’ by the obligation as too is any third party: Hearne v Street (2008) 235 CLR 125[1] 131 Gleeson CJ, agreeing with the analysis at 156-160, [102]-[108], Hayne, Heydon and Crennan JJ.
[1] (2008) 235 CLR 125, 131 Gleeson CJ, agreeing with the analysis at 156-160, [102]-[108], Hayne, Heydon and Crennan JJ.
The High Court’s statement of the obligation runs:[2]
Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence.
[2] (2008) 235 CLR 125, 154-155 [96], Hayne, Heydon and Crennan JJ, with whom Gleeson CJ agreed.
On that statement, merely reading the contents of an affected document in open court is not sufficient to end the obligation. The document must be received into evidence.
The Harman Obligation extends to prohibit the use of documents obtained under compulsory processes in court proceedings, commercial arbitrations proceedings (see Esso Australia Resources Pty Ltd v Plowman (1994) 183 CLR 10 (Plowman) and applies in Tribunals, including the ART: Otter Gold Mines Ltd v McDonald and Ors (1997) 76 FCR 467 per Sundberg J at 471-473.
The obligation so implied by law, is buttressed by protection from the rules of court. In the ART, there are practice directions, the Administrative Review Tribunal (Common Procedures) Practice Direction 2024 (commencing 14 October 2024) (Common Procedures Direction), which are made under power conferred pursuant to section 36 of the ART Act and which address the obligation:
6.21 If a party has obtained a document provided under compulsion in an application before the Tribunal, the law implies that the parties who have received that document have given an undertaking that the document will not be used for any purpose other than the purpose for which it was given to the Tribunal unless:
(a) the document was received in evidence by the Tribunal in a public hearing of the application for review and there is no restriction on the publication or disclosure of the document by an order of the Tribunal or by another statutory provision; or
(b) the Tribunal gives a party or parties permission to use the document for another purpose.
6.22 The implied undertaking applies to:
(a) documents produced under sections 23 and 25 of the Act;
(b) documents lodged pursuant to a direction given by the Tribunal (including expert reports or witness statements) [NB: This applies to directions under section 26 of the Act]; and
(c) documents produced in response to a summons issued by the Tribunal.
6.23 The implied undertaking continues even after an application for review has been finalised. A breach of the implied undertaking by using the document or documents for another purpose may have serious legal consequences.
6.24 Documents which are provided to the Tribunal in one application for review may be used in another application for review if:
(a) the applications have been lodged by the same applicant and are currently before the Tribunal; and
(b) the Tribunal has determined that these applications should be dealt with together.
Not all documents given between the parties or to the Tribunal are subject to the undertaking. Those documents voluntarily exchanged, for instance, a written submission to advance an application, an affidavit or statement together with any documents attached given in support would not have been received by the other party under compulsory processes of the Tribunal.
On the other hand, where documents are summonsed from third parties under the Tribunal’s compulsory power under section 74 of the ART Act, and where right of inspection is granted to the parties, then both parties will be equally subject to the implied undertaking. In the present case, the summonsed records of the following third parties are subject to the undertaking:
(i)Michael Childs
(ii)Dr Russell Hinton
(iii)Lakeside Clinic Consulting Rooms
(iv)The Lorn Surgery
(v)Rutherford Medical Centre
Typically, where the Tribunal gives directions or orders or a notice for the production or filing of documents and witness statements (including expert witness reports), the documents so produced are subject to the undertaking in the hands of the party receiving them. Hence, a document in the possession of one party may not be subject to the undertaking in that party’s hands though the receiving party is subject to the undertaking. The exception to that is where the party providing a document, say a medical witness report, and that report writer has done so having taken into consideration summonsed records then the report is similarly subject to the implied undertaking in the hands of the party who commissioned the report as well as the party receiving a copy of that report. The House of Lords in Crest Homes Plc v Marks [1987] AC 829 (Crest Homes) stated the undertaking applies ‘not merely to the documents discovered themselves but also to information derived from those documents whether it be embodied in a copy or stored in the mind.’[3]
[3] Crest Homes Plc v Marks [1987] AC 829, 854 Lord Oliver of Aylmerton (with whom all the remaining Law Lords agreed).
Hence, the report of Associate Professor Michael Robertson, psychiatrist, dated 22 November 2024 is subject to the undertaking.
At this point, it is well worth emphasising that it is the privacy of information that is protected by the obligation, not only the physical document which stores that information. The known legal authorities often cite Lord Denning’s judgement in Riddick v Thames Board Mills Ltd [1977] QB 881:[4]
Compulsion is an invasion of a private right to keep one’s documents to oneself. The public interest in privacy and confidence demands that this compulsion should not be pressed further than the course of justice requires. The court should, therefore, not allow the other party — or anyone else — to use the documents for any ulterior or alien purpose. Otherwise the courts themselves would be doing injustice.
. . .
In order to encourage openness and fairness, the public interest requires that documents disclosed on discovery are not to be made use of except for the purposes of the action in which they are disclosed. They are not to be made a ground for comments in the newspapers, nor for bringing a libel action, or for any other alien purpose.
[4] [1977] QB 881, 896.
The High Court in Plowman echoed the public policy protecting privacy:[5]
Over a century ago, Bray on Discovery (1st ed, 1885) stated:
'A party who has obtained access to his adversary's documents under an order for production has no right to make their contents public or communicate them to any stranger to the suit ... ... nor to use them or copies of them for any collateral object ... If necessary an undertaking to that effect will be made a condition of granting an order'
Because an undertaking is implied, it has not been the practice to condition the making of orders in that way. The implied undertaking is subject to the qualification that once material is adduced in evidence in court proceedings it becomes part of the public domain, unless the court restrains publication of it.
It would be inequitable if a party were compelled by court process to produce private documents for the purposes of the litigation yet be exposed to publication of them for other purposes. No doubt the implied obligation must yield to inconsistent statutory provisions and to the requirements of curial process in other litigation, eg discovery and inspection, but that circumstance is not a reason for denying the existence of the implied obligation.
[5] (1994) 183 CLR 10, 32-33, Mason CJ, with whom Dawson and McHugh JJ agreed.
There are no ‘inconsistent statutory provisions’ or ‘requirements of curial process in other litigation’ raised for consideration in the present case.
The matter has not been subject to a hearing and none of the material for which the release is sought has been adduced in evidence.
Breach of the implied undertaking is a serious matter. The obligation is owed to the court or tribunal under which compulsory processes the documents were obtained. The High Court confirmed in Hearne v Street that the breach of the undertaking was a contempt of court and approved of the NSW Court of Appeal’s conclusions that the proceedings for the breach in that case were a civil contempt.
Although the Tribunal is not a court in the ordinary sense, section 120 of the ART Act provides that an offence is committed where a person engages in conduct which, ‘if the Tribunal were a court of record, constitute a contempt of that court’. The penalties may include fine or imprisonment.
Special circumstances to be demonstrated for release
The Tribunal has a discretion to release the parties from the undertaking. That release must be the subject of an application setting out reasons why such leave ought to be granted. It is not a matter of mere consent between the parties. The obligation is owed directly to the Tribunal whose power of compulsion for the purposes of review allowed documents to come into the hands of the party subject to the undertaking.
In Otter Gold Mines the Court also confirmed that the power to compel production of documents was matched by a power to release the parties from the implied undertaking describing it as the ‘other side of the coin’.[6] There is a discretion in the Tribunal to grant release to one or more parties in respect of some or all documents obtained by that party from the opposing party or strangers to the proceeding under the compulsory powers of the Tribunal. Leave of the Tribunal is required by a party seeking to be released from the undertaking.
[6] (1997) 76 FCR 467, 473, Sundberg J.
The Tribunal’s Common Procedures Direction states:
6.25 If a party wishes to use a document subject to the implied undertaking for another purpose, including a document that was given to the Tribunal in an application for review that has been finalised, they must make a request to the Tribunal for permission 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) explain clearly:
(i) the reasons for release from the implied undertaking;
(ii) who will use the documents; and
(iii) the purpose for which the document will be used; and
(d) if possible, specify whether the person to whom the documents relate consents to the release from the implied undertaking.
In such an application for release from the implied undertaking the party applying must show ‘special circumstances’ demonstrating that the modification should not cause injustice to the part disclosing the information. In Holpitt Pty Ltd v Varimu Pty Ltd (1991) 29 FCR 576, (Holpitt) Burchett J adopted the general principle stated in Crest Homes ‘that the court will not release or modify the implied undertaking given on discovery save in special circumstances and where the release or modification will not occasion injustice to the person giving discovery ... [E]ach case must turn on its own individual facts.’[7] Holpitt was a case concerning the release of information in one party’s documents delivered to the opposing party. Burchett J in Holpitt then went on to consider the word ‘special’ in relation to the circumstances:[8]
"Special" is one of those words which derive almost all their meaning from the context. … If all that is required is that, among the great number of cases in the court in which documents have been discovered, this one must evince some special feature which affords a reason for releasing or modifying the undertaking, there will be no difficulty. Circumstances in which there is a legitimate reason why documents discovered in one proceeding should be made available in another will, viewed in this way, be rare. In the ordinary course, the ordinary rule should apply, there being no special circumstance to suggest otherwise.
[7] [1987] AC 829, 860.
[8] (1991) 29 FCR 576, 578.
He went on to summarise the Court’s approach where, as in Holpitt, one party was seeking to be released from the undertaking in relation to specific documents discovered in one proceeding for use in another court proceeding where it was in the interests of justice to do so, and no injustice would be occasioned to the party discovering:
In my opinion, the court's duty, in an applicant of this kind, is to consider whether the applicant has shown some circumstance which takes the matter out of the ordinary course, according to which production of documents pursuant to an obligation to make discovery involves the implied undertaking to the court; and, if so, whether an exercise of the court's discretion in favour of the application would be in the interests of justice.
The range of reported cases on the release from the implied undertaking generally relate to the use of discovered documents and witness statements in subsequent court proceedings. Of their nature the information and documents are specified and relate to pleadings in other court cases and the circumstances favouring release in the interest of justice can be readily weighed. In Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217, Wilcox J, another case where documents produced in one case were sought for use in a separate matter but where the statement of one party was highly relevant to issues in the separate matter, discussed the range of relevant factors to be considered:[9]
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.
[9] (1992) 38 FCR 217, 225.
The purpose of ‘general claims management’
As noted above, there are no allied proceedings in this or any other court or tribunal for which release is sought. The sole purpose proposed for the information contained in the documents is for Comcare’s continued management of the claim.
A trend developed in the former AAT that favoured the granting of release on the basis that ‘general claims management’ by a relevant authority such as Comcare in relation to claims made under the SRC Act is not a purpose collateral or ulterior to the Tribunal’s review of a decision under which the information in documents was compulsorily obtained.
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 pay other compensation under the same legislation. Part of the confusion created in the circumstances of the case was the fact that the two reports subject of Comcare’s application for release from the undertaking were provided by Comcare itself. The reports were made by the same medical expert but were informed by information obtained from materials obtained from the Tribunal’s compulsory processes. On the authority of Crest Homes referred to above, they were, like the report of Associate Professor Michael Robertson in the present case, subject of the implied undertaking. The presiding member concluded:[10]
The Tribunal, in conducting merits review of Comcare’s decision, stands in the shoes of the decision maker. The Tribunal’s decision (when it is made) will be more than just closely connected with claims management purposes: it will be — like the decision under review — a claims management decision. This is not a situation where documents are proposed to be used “in one action for the purposes of another action”; the Tribunal’s decision will be one decision amongst several made during the management of the same claim.
In this review, Comcare was compelled to produce the relevant documents for the purpose of the Tribunal determining whether Ms Chin is entitled to compensation for household services. The claims management purposes — future decisions about Ms Chin’s entitlement to compensation for the accepted injuries—are not “different” to, “outside” or “otherwise than in relation to” that purpose. The claims management purposes are not purposes other than that for which the relevant documents were given. [Citations omitted]
[10] [2017] AATA 634; (2017) 160 ALD 176, 182 [27]-[28] Senior Member Popple.
The Tribunal decided that in those circumstances it was not necessary to seek a release from the implied undertaking.
The decision in Chin was later followed in Oliver and Comcare [2018] AATA 1964 (Oliver), DVFW and Comcare [2019] AATA 2366 and Walsh and Comcare [2022] AATA 158.[11]
[11] In Pidgeon and National Disability Insurance Agency [2023] AATA 2207 accepted the reasoning in Chin although the relevant document was found not to be subject to the implied undertaking. The party seeking release commissioned the relevant occupational therapy report and there was no suggestion it was prepared from information obtained through the Tribunal’s compulsory process such as summonsed medical records.
The essential contention adopted by the Tribunal in all these cases is that the Tribunal’s review of a particular decision is merely an extension of a relevant authority’s ‘claims management processes’ either because they relate to the same compensable injury or, more exceptionally, because it relates to management of several injuries.[12]
[12] In Oliver, the Tribunal dismissed an application for review of rejection of liability for particular injuries but nevertheless found that no release was required in respect of ‘claims management’ of different but compensable injuries.
The notion that Comcare’s ‘claims management purposes’ are not collateral or ulterior to the Tribunal’s review of a specific reviewable decision cannot be accepted.
I note in Newey and Comcare [2019] AATA 1772, the Tribunal did not approve the approach taken in Chin and Oliver. The Tribunal explained its differing conclusion:[13]
For the reasons I have given, I have reached a conclusion different from those reached in Chin and Oliver. The main reason for that is the different view I take of the nature of the continuum of decision-making in which Comcare must engage under the provisions of the SRC Act and in light of the Full Court’s judgment in Lees v Comcare. It is clear from the latter that each type of compensation provided for in the SRC Act is the subject of a separate determination. When reviewed under s 62, the reviewable decision that is made entitles the claimant to apply to the Tribunal but each application is a separate proceeding. Documents and material are lodged and produced in response to summonses issued in each proceeding. Each separate proceeding gives rise to the implied undertaking. The fact that each separate proceeding may hark back to a single injury or injuries arising out of the one incident does not alter the fact that the implied undertaking arises in the context of a proceeding and not in the context of the wider sequence of events leading to that proceeding.
[13] [2019] AATA 1772, 34, Deputy President Forgie.
The Tribunal in Newey also dealt with the administrative process of ‘linking’ multiple applications for review of decision:[14]
The Tribunal has a practice of “linking” applications when an applicant lodges applications for review of more than one decision by a decision-maker and there is a relationship between the subject matter of the decisions as there is in the case of reviewable decisions made on an applicant’s claim under the SRC Act. Linking applications is, however, an administrative action of the Tribunal. It does not make two or more linked files a “proceeding” for a “proceeding” is an application and not a group of applications: see definition of “proceeding” in s 3(1) of the AAT Act. Therefore, when files are linked and summonses have been issued for the purposes of one of those applications that is a proceeding, the Tribunal will have to release the parties from the implied undertaking if they wish to use the summonsed documents or things in the other application that is also a proceeding. Where appropriate, this is often done as a matter of housekeeping as is an order that the evidence given in one will be evidence in the other.
[14] Ibid, footnote 29 to paragraph [34].
A collateral or ulterior purpose for which use of the information obtained from compulsory Tribunal processes is ‘any purpose other than that for which it was given’ (Hearne v Street),[15] or ‘any purpose otherwise than in relation to the litigation in which it is disclosed’ (Plowman).[16] Those statements by the High Court of Australia have been followed in all subordinate courts.
[15] (2008) 235 CLR 125, 154-155 [96], Hayne, Heydon and Crennan JJ, with whom Gleeson CJ agreed.
[16] (1994) 183 CLR 10, 32-33, Mason CJ, with whom Dawson and McHugh JJ agreed, citing with approval Finn. "Confidentiality and the 'Public Interest'. Australian Law Journal. vol 58 (1984) 497 at 505.
General ‘claims administration purposes’ are always collateral or ulterior to the purposes of the particular proceedings for review of the acceptance of liability to pay compensation for injury pursuant to section 14 of the SRC Act. As noted in Newey a review of such a decision is constrained to limited matters as discussed in Lees v Comcare [1999] FCA 753; (1999) 56 ALD 84 (Lees):[17]
[34] The definition of “determination” makes it plain that it is part of the scheme of the Act for determinations to be made under the various sections referred to therein. In particular, the definition reveals that a determination may be made under s 14 of the Act. A determination under s 14 cannot amount to more than a determination that Comcare “is liable to pay compensation in accordance with this Act” in respect of a particular injury. The amount of compensation which Comcare will be liable to pay, the person or persons to whom the compensation will be payable and the time or times at which Comcare’s liability will give rise to a present obligation to make payments are, as the above examination of the structure of the Act reveals, all matters to be determined under other provisions of the Act.
[35] This is not to say that a determination under s 14 is without real significance. Such a determination will involve findings on the following matters. First, that an appropriate notice of injury has been given to the relevant authority as required by s 53 of the Act; secondly, that a claim for compensation has been made as required by s 54 of the Act; thirdly, that the person who made the claim or on whose behalf the claim was made was an “employee” at the time of the alleged injury (ss 4 and 5); fourthly, that the employee suffered an injury (s 4); and finally, that the injury has resulted in death, incapacity for work or impairment.
[17] [1999] FCA 753; (1999) 56 ALD 84, 92 [34]–[35], Wilcox, Branson and Tamberlin JJ.
The provision of information relevant to such a decision under section 14 of the SRC Act, the Full Court noted in Lees, ‘does not provide for the provision of information of the kind that would be necessary before a determination could be made under, for example, ss 16, 17, 18, 20, 21, 24 and 25 of the Act.’[18] Those matters include the payment of specific compensation, amongst other things, for medical treatment, lump sum compensation for dependents of a deceased employee following death from injury, funeral expenses, weekly compensation for incapacity following retirement or lump sum compensation for permanent impairment and non-economic loss. Such specific claims of requests are managed from time to time once a liability is established and a decision to pay or not to pay compensation is a specific determination which, along with ‘determining authority’ and ‘reviewable decision’ is defined in section 60 of the SRC Act in the following terms:
“determination” means a determination, decision or requirement made under section 8, 14, 15, 16, 17, 18, 19, 20, 21, 21A, 22, 24, 25, 27, 29, 30, 31, 34, 36, 37 or 39, under paragraph 114B(5)(a) or under Division 3 of Part X;
“determining authority”, in relation to a determination, means the person who made the determination;
“reviewable decision” means a decision made under subsection 38(4) or section 62.
[18] Ibid at 91, [30].
Even the existence of an entitlement to weekly payments compensation for incapacity for work resulting from injury pursuant to section 19 of the Act, though involving finding common to section 14 that such incapacity results from injury, will require quite different considerations before compensation is paid. The specific period of compensation must be considered, the normal weekly earnings must be determined, the existence of loss or diminution of income must be found and calculation of earnings from residual capacity exercised will all be considered and none of the information obtained from the sources claimed in this case will be relevant to those decisions. The existence of the injury is not reviewed again.
Claims management may, or may not, be called upon to consider, for example, the compensable sequel to that injury as in what ‘results from’ in terms of incapacity giving rise to actual loss pursuant to section 19 weekly payments, or what treatment is ‘in relation to’ that defined injury pursuant to section 16 of the SRC Act that is relevant. As the Full Court noted, those will not be founded on the sort of information needed to determine the existence of the compensability of the injury in the first place.
It cannot be assumed that Comcare will be called upon to make any such decisions or, if a request is made, what information will be relevant. In Liu and Comcare [2004] AATA 617; (2004) 79 ALD 119:
(2) A positive determination under s 14 is a determination of the existence of a compensable injury. The nature and amount of the compensation is to be determined under other provisions of the Act. Compensable injuries may not always result in the payment of compensation. They may give rise to intermittent entitlements to compensation. There may be periods when there is no present entitlement to compensation under any of the sections of the Act relating to the nature and amount of compensation. But during such periods an injury which has been determined to be a compensable injury under s 14 will not cease to be a compensable injury. It will simply be correct to say during some periods that at the present the compensable injury does not give rise to an entitlement to compensation. Such periods may be long. The compensable injury may never give rise to any future entitlement to compensation. But this cannot be known or determined in advance.
Given that the different nature of any information needed to determine future requests for specific compensation payments to that required for a determination of the existence of an injury, the information sought by use of compulsory Tribunal processes in this case will not, as a matter of course, be necessary to the determination of those matters, if they arise.
The documents provided from summons materials to Associate Professor Michael Robertson, psychiatrist, for his report dated 22 November 2024 were called to the Tribunal to determine the specific question as to the liability for injury pursuant to section 14 of the SRC Act. That issue is now resolved. There is no further use for that report, or at least, no specific request for compensation identified to which that report would be relevant.
Further, the Tribunal exercised a discretion to summons the various medical practices to obtain medical records which could only have been granted on the basis that the documents had some adjectival relevance to the limited questions posed for the resolution of section 14 SRC Act liability for injury. If the materials obtained from clinical practices were summonsed for purpose of determining questions not before the Tribunal, such as those raised by sections 16 (medical treatment) or 19 (weekly payment of compensation for incapacity), then they were for an ulterior purpose, not a legitimate forensic purpose since it would be inconsistent with the nature of the question to be resolved in the proceedings for review and were, thereby, an abuse of process. In Trade Practices Commission v Arnotts [1989] FCA 248; (1989) 88 ALR 90 Beaumont J noted that the first question to be asked to establish sufficient relevance to the proceeding is whether ‘the material sought have an apparent relevance to the issues in the principal proceedings, i.e., is adjectival, as distinct from substantive, relevance established? Does the subpoena have a legitimate forensic purpose to this extent?’ and shortly prior to that:[19]
The general test for present purposes is well settled. The issue of a subpoena will be an abuse of process if it is not used for a legitimate forensic purpose: see Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984] 3 NSWLR 98 at 100-1. But, as Deane and Gaudron JJ observed in Hamilton v Oades [1989] HCA 21; (1989) 85 ALR 1 at 11, the court's general powers in this area have a dual aspect: `The inherent power of a court to control and supervise proceedings includes the power to take appropriate action to prevent injustice...[This] power...is not restricted to defined and closed categories...In this context injustice is not simply a question of the purpose or motive for which the relevant proceedings were instituted but includes a consideration of the consequences of the proceedings for the person invoking the power. The terms `oppressive' and ‘vexatious' are often used to signify those considerations which justify the exercise of the power to control proceedings to prevent injustice, those terms respectively conveying, in appropriate context, the meaning that the proceedings are ‘seriously and unfairly burdensome, prejudicial or damaging' and `productive of serious and unjustified trouble and harassment': Oceanic Sun Line Special Shipping Co Inc v Fay [1988] HCA 32; (1988) 62 ALJR 389 per Deane J at 411; [1988] HCA 32; 79 ALR 9 at 45.
[19] [1989] FCA 248; (1989) 88 ALR 90, 103, 102 Beaumont J.
Fortunately, Comcare did not make a submission that its purpose in requestion summonses to various medical practitioners were for such ulterior or collateral purposes other than to answer the questions relevant to question of liability pursuant to section 14 of the SRC Act. I also note that the Applicant did not make any allegation to that effect.
The reasoning in the decisions in Chin and Oliver to the effect that there is no ‘collateral or ulterior purpose’ in general claims administration is, for the foregoing reasons, not accepted.
Further, the view that there is a general alignment of purposes between decision makers and their ‘general claims administration’ and the role of the Administrative Review Tribunal is not accepted. The references to the ‘continuum’ of decision-making borrows only from the nature of the process of decision making and review contained in sections 60, 61, 62 and 64 of the SRC Act referring to primary ‘determinations’ internal reconsideration of such determinations and the production of a ‘reviewable decision’ for which there is an entitlement to review by the ART. That does not imply that whatever material was obtained under the Tribunal’s compulsory processes on the establishing of mere adjectival relevance ought, as a matter of course, come into the hands of Comcare for its use in making any other decision.
Upon the commencement of the new ART, emphasis was laid on independence from the executive government of Australia whose decisions under designated statutes are to be reviewed. In his speech at the Inaugural Ceremonial Sitting of the ART on 14 October 2024, Justice Kyrou, the President of the ART commented, ‘the expressions ‘administrative continuum’ and ‘stands in the shoes of’ was motivated by a desire to clarify the scope of the AAT’s functions and powers, it has not assisted in promoting the perception of the AAT’s independence.’ The stated statutory objective in section 9 of the ART Act includes the objective of providing an independent mechanism of review. The members of this Tribunal are statutory office holders as distinct to the majority of administrative decision makers under Commonwealth legislation. The changes were designed to embody the ‘desire to convey to applicants who seek review of a government decision that the review will not be conducted by another part of the government by way of internal review, but by an independent statutory body that is at arm’s length from the original decision-maker.’
For all the reasons expressed, there can be no adoption of the view that the ‘general claims management’ is a purpose that is not collateral or ulterior to the Tribunal’s purpose of reviewing a specific reviewable decision.
Finally, in the present case, Comcare’s submissions went no further than expressing a general reason for seeking the release of the identified materials for such purposes. It was unable to identify any more specific purpose or identifiable question that it reasonably required the documents to assist its decision making. Inevitably, no submission could be made as to how such documents were likely to assist. No specific determination pending was identified in its application for release. Hence, Comcare did not comply in any way with the requirements set out in paragraph 6.25 of the Common Procedures Direction.
Hearing: Tuesday, 15 April 2025
Representative for Applicant: Gabriella Giunta, Slater & Gordon
Representative for Respondent: Stephanie Miller
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