Gower and Australian Capital Territory (Compensation)
[2019] AATA 3947
•6 September 2019
Gower and Australian Capital Territory (Compensation) [2019] AATA 3947 (6 September 2019)
Division:GENERAL DIVISION
File Number(s): 2018/3960
Re:Julie Gower
APPLICANT
AndAustralian Capital Territory
RESPONDENT
DECISION
Tribunal:Member W Frost
Date of decision: 6 September 2019
Date of
written reasons: 27 September 2019
Place:Canberra
The Respondent is released from the implied undertaking in relation to certain documents in issue between the parties.
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Member W Frost
Catchwords
PRACTICE AND PROCEDURE – application for release from implied undertaking in relation to medical reports – whether release from implied undertaking applies – reports to be used for purpose of claims management of accepted condition – whether release from implied undertaking should be granted – release from implied undertaking granted
Legislation
Administrative Appeals Tribunal Act 1975
Safety, Rehabilitation and Compensation Act 1988
Cases
Chin and Comcare [2017] AATA 634
Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10
Hearne v Street (2008) 235 CLR 125
Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 648
Liberty Funding Pty Ltd v Phoenix Capital Ltd (2005) 218 ALR 283
Otter Gold Mines Ltd v McDonald (1997) 76 FCR 467
Re Environmental Images Pty Ltd and Australian Trade Commission (1996) 45 ALD 674
Re PJ Beaconsfield Gold NL and Australian Securities Commission; Otter Gold NL & Anor (1998) 183 CLR 10
Re Rana and Military Rehabilitation and Compensation Commission [2009] AATA 361
Re SAN and Military Rehabilitation and Compensation Commission [2008] AATA 237
Springfield Nominees Pty Ltd and Ors v Bridgelands Securities Ltd and Ors (1992) 38 FCR 217
Von Stieglitz and Comcare [2012] AATA 217
Secondary Materials
General Practice Direction, 28 February 2019
REASONS FOR DECISION
Member W Frost
27 September 2019
INTRODUCTION & BACKGROUND
The Applicant, Ms Julie Gower, made a claim for workers’ compensation for a ‘neck sprain’, or cervical injury. In July 2016, Comcare, who was then the relevant insurer (but which is now the Respondent), accepted the claim (2016 Injury). The 2016 Injury arose as a result of Ms Gower’s employment with ACT Health, which involved the use of a computer keyboard and mouse.
In November 2017, Ms Gower claims to have suffered an injury to her lower back due to her repeated bending and lifting of files in the workplace. Ms Gower applied to Comcare under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) for compensation for ‘aggravation of lumbar sprain’ (Claimed Injury). Comcare initially accepted the Claimed Injury, but it subsequently revoked that decision pursuant to a reconsideration decision made on 18 May 2018. Ms Gower’s employer had argued that the Claimed Injury was not a new injury as a result of a new set of circumstances, but that it was the result of referred pain from the 2016 Injury. In revoking its initial decision, Comcare found that there was insufficient evidence to support a finding that Ms Gower had sustained a new injury to her lower back given her medical history, including the 2016 Injury.
In July 2018, Ms Gower applied to the Tribunal for review of Comcare’s decision refusing liability for her Claimed Injury. That claim is currently before the Tribunal. Due to Ms Gower’s medical history, Comcare’s consideration of that history and its decisions in relation to both the 2016 Injury and the Claimed Injury, an important issue in this proceeding is whether the Claimed Injury is referable to the 2016 Injury or whether it is a separate and distinct injury.
For the purpose of this proceeding, the Respondent’s representative obtained reports from an orthopaedic surgeon, Dr Mohamad Mourad, dated 4 January and 4 February 2019 (Reports) following his medical assessment of Ms Gower. Dr Mourad was briefed with Ms Gower’s medical records that were obtained by the Respondent pursuant to summonses issued by the Tribunal on 24 September 2018.
In relation to the Claimed Injury the subject of this proceeding before the Tribunal, Dr Mourad stated in the Reports that the ‘diagnosis of her lower back is lumbar spondylosis as well as sacroiliitis. This condition is most likely to be age/degenerative/constitutional in aetiology and was symptomatic in 2007’. Dr Mourad said it was ‘unlikely’ Ms Gower’s Claimed Injury was contributed to, to a significant degree, by her employment. He also said it was ‘unlikely’ the Claimed Injury was contributed to by referred pain from the 2016 Injury. In relation to the 2016 Injury, Dr Mourad stated in the Reports that the ‘likely diagnosis is cervical spondylosis or age degenerative changes of the cervical spine’. Dr Mourad found ‘no evidence of permanent pathology as a result of her employment’.
The Reports are subject to the implied undertaking on a party not to use documents obtained under compulsion in a proceeding for a collateral or ulterior purpose without the consent of the other party or the permission of the Tribunal. The Respondent received the summonsed material (being the medical records of Ms Gower) after their production had been compelled in the present proceeding and access was granted by the Tribunal to the Respondent for their inspection. The Respondent provided the medical records to Dr Mourad, who referred to them in the Reports. It follows that the implied undertaking applies to the Respondent in relation to the Reports to the extent that the Reports are informed by, or reproduce information from, the summonsed material in this proceeding.
Accordingly, the Respondent is presently prevented from using the Reports for a collateral or ulterior purpose to the current proceeding in the Tribunal, being the management of Ms Gower’s 2016 Injury. As a result, the Respondent applied to the Tribunal to be released from the implied undertaking in relation to the Reports. Ms Gower opposed the Respondent’s application to be so released.
On 6 September 2019, the Tribunal held a directions hearing regarding the Respondent’s application to be released from the implied undertaking. At the hearing, and after submissions from the parties, the Tribunal decided that it would use its discretion to release the Respondent from the implied undertaking in relation to the Reports and made a direction to that effect. Ms Gower’s representative requested written reasons for the Tribunal’s decision and those reasons are set out as follows.
ISSUE
The issue before the Tribunal was whether the Respondent should be released from the implied undertaking not to use the Reports for a collateral or ulterior purpose to the present proceeding.
COMMON LAW
In Hearne v Street,[1] the High Court said of the implied undertaking:
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. The types of material disclosed to which this principle applies include documents inspected after discovery, answers to interrogatories, documents produced on subpoena, documents produced for the purposes of taxation of costs, documents produced pursuant to a direction from an arbitrator, documents seized pursuant to an Anton Piller order, witness statements served pursuant to a judicial direction and affidavits.
[1] Hearne v Street (2008) 235 CLR 125 at 154–155 [96]–[97] per Hayne, Heydon and Crennan JJ. Their Honours cited, amongst other cases, the decision of the House of Lords in Harman v Secretary of State for the Home Department [1983] 1 AC 280. The rule regarding an implied undertaking is often referred to as the Harman rule. References to authorities in this extracted quote have been omitted.
In Esso Australia Resources Ltd v Plowman, Brennan J said that:[2]
The underlying principle…is that a party who obtains the production of documents or the disclosure of information for a particular purpose cannot use the documents or information for a “collateral or ulterior purpose”. That phrase is not used in a pejorative sense, as Lord Diplock said in Home Office v Harman, but it is used “merely to indicate some purpose different from that which was the only reason why, under a procedure designed to achieve justice in civil actions, [the solicitor for a party] was accorded the advantage, which she would not otherwise have had, of having in her possession copies of other people’s documents…But such an undertaking "can, in appropriate circumstances, be released or modified by the court". That dispensing power is not freely exercised, but it will be exercised when special circumstances appear.
[2] Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10 at 36. References to authorities in this extracted quote have been omitted.
In Idoport Pty Ltd v National Australia Bank Ltd, the NSW Supreme Court adopted the following statement:[3]
The use of documents disclosed in one action for the purposes of another action will be a collateral or ulterior purpose: Crest Homes plc v Marks [1987] 1 AC 829 at 837, Tate Access Floors Inc v Boswell [1991] Ch 512 at 526; even where the parties to both actions are identical: see [Riddick v Thames Board Mills Ltd [1977] QB 881] at 896–897, 901–902 and 912; and where the causes of action are identical: Sybron Corporation v Barclays Bank plc [1985] Ch 299 at 319–320.
[3] Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 648 at [27].
In Liberty Funding Pty Ltd v Phoenix Capital Ltd (Liberty Funding), the Federal Court said that:[4]
[4] Liberty Funding Pty Ltd v Phoenix Capital Ltd (2005) 218 ALR 283 at 289-290.
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. In Springfield Nominees, Wilcox J identified a number of considerations which may, depending upon the circumstances, be relevant to the exercise of the discretion. These were:
• the nature of the document;
• the circumstances under which the document 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 in to the hands of the applicant; and
• most importantly of all, the likely contribution of the document to achieving justice in the other proceeding.
In Springfield Nominees,[5] Wilcox J said that parties may be released from the implied undertaking where ‘special circumstances’ exist, as follows:
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.
[5] Springfield Nominees Pty Ltd and Ors v Bridgelands Securities Ltd and Ors (1992) 38 FCR 217 at 225.
It is well established that the rule regarding the implied undertaking applies to proceedings in the Tribunal.[6]
[6] Re Environmental Images Pty Ltd and Australian Trade Commission (1996) 45 ALD 674; Otter Gold Mines Ltd v McDonald (1997) 76 FCR 467; Re PJ Beaconsfield Gold NL and Australian Securities Commission; Otter Gold NL & Anor (1998) 183 CLR 10 at 32; Re SAN and Military Rehabilitation and Compensation Commission [2008] AATA 237; Re Rana and Military Rehabilitation and Compensation Commission [2009] AATA 361.
It is also well established that the Tribunal has an inherent power to release a party from an implied undertaking.[7] In Otter Gold Mines Ltd v McDonald,[8] Sundberg J said:
The power to release from the implied undertaking of confidentiality is incidental to the power to require the document to be produced. Production under compulsion gives rise to the undertaking. The power to release is intrinsically associated with that undertaking. It is the other side of the coin.
[7] Otter Gold Mines Ltd v McDonald (1997) 76 FCR 467 at 473.
[8] ibid.
The Tribunal in Von Stieglitz and Comcare (Von Stieglitz)[9] adopted the above-mentioned considerations identified in Springfield Nominees[10] as being relevant to the Tribunal’s decision whether to release a party from an implied undertaking. In Von Stieglitz, the release of documents in an application previously before the Tribunal involving the same parties was refused because the respondent had not addressed the relevant considerations. This can be contrasted with the present proceeding before the Tribunal where the Respondent addressed these factors in some detail. The Tribunal notes that in Von Stieglitz, it was said that:[11]
The implied undertaking maintains private rights to confidentiality in respect of documents discovered or brought into existence in litigation; documents discovered or brought into existence in litigation cannot be used in the context of other litigation unless there is a good reason or special circumstances for doing so. Private rights to confidentiality “should not be disturbed except to the extent necessary for the purpose of the administration of justice”.[12]
Release from the implied undertaking cannot be addressed in general terms. The specific nature and content of the documents for release and the use or purpose to which they will be put must be addressed.
[9] Von Stieglitz and Comcare [2012] AATA 217.
[10] Springfield Nominees at 225.
[11] Von Stieglitz at [21]-[23].
[12] Re SAN and Military Rehabilitation and Compensation Commission [2008] AATA 237 at [23].
In Chin and Comcare (Chin),[13] the Tribunal considered whether to release Comcare from the implied undertaking so it could use certain documents from the proceeding for claims management purposes regarding Ms Chin’s injuries, which themselves were the subject of the proceeding before the Tribunal. The Tribunal found that the claims management purposes were not collateral to the proceeding and Comcare did not require a release from the implied undertaking in order to use the documents. The Tribunal said that its position ‘would not necessarily have been the case if the claims management purposes and the decision under review had related to the same person but to different injuries’.[14] The Tribunal clearly envisaged that, in those circumstances, Comcare would have required a release from the implied undertaking to use the documents. The Tribunal did not express a view on whether it would have granted such a release. In the present proceeding, unlike in Chin, the Respondent does require a release from the implied undertaking to use the Reports for claims management purposes, including because of the uncertainty about the relatedness of the 2016 injury to the Claimed Injury, noting that Dr Mourad considers that they are two distinct injuries.
[13] Chin and Comcare [2017] AATA 634.
[14] Chin at [29].
In this regard, in Warner and Comcare (Warner),[15] Comcare’s request to be released from an implied undertaking in relation to certain documents was refused where, unlike in Chin, ‘the claims management purposes, and the proceedings in which the documents were produced, relate to the same person but to different injuries’. The Tribunal in Warner said ‘Comcare has not proposed any reason why it should be released from the implied undertaking, apart from arguing that it does not need to be’, due to its ability under section 58 of the SRC Act to request the documents from Mr Warner and, if they were received by Comcare, it then not being subject to the implied undertaking. The Tribunal did not accept this argument and found that Comcare would still be bound by the implied undertaking if it received the documents pursuant to section 58 of the SRC Act.
[15] Warner and Comcare [2017] AATA 2709.
The circumstances in Warner can be distinguished from the current proceeding before the Tribunal. Here, the Respondent acknowledged that it is bound by the implied undertaking and did not seek to rely on the power under section 58 of the SRC Act to claim that there is no need for it to be released. More importantly, and unlike in Warner, the Respondent put forward good reasons for it to be released from the implied undertaking in relation to the Reports.
CONSIDERATION
Tribunal’s discretion and basis for implied undertaking
The Tribunal has broad discretion in determining whether to release a party from an implied undertaking in a proceeding. In this way, the matters that can be considered are wide-ranging.[16]
[16] Liberty Funding at 289-290.
The implied undertaking applies to the Reports because they were based on medical records of Ms Gower obtained by the Respondent pursuant to summonses issued by the Tribunal. These records may have been able to be obtained by the Respondent with the consent of Ms Gower, but this consent apparently was not sought by the Respondent before it requested the issuing of summonses for those records. The first of the Reports was also the subject of a direction of the Tribunal for it to be filed and served in the proceeding by the Respondent. Part 5.2 of the General Practice Direction of the Tribunal dated 28 February 2019 prohibits the use of documents provided under compulsion ‘for any purpose other than the purpose for which it was given’ to the Tribunal, unless the documents were received in evidence or the Tribunal gives permission to do so.
Uncertainty about relatedness between 2016 Injury and Claimed Injury
The uncertainty about whether there is a link between the 2016 Injury and the subsequent Claimed Injury is a critical issue in this proceeding. That is, whether Ms Gower’s Claimed Injury was caused by a new set of circumstances or whether it is referrable to her 2016 Injury. This uncertainty also existed in the course of Comcare’s consideration of, and decision regarding, the Claimed Injury. That is one of the reasons why the Respondent’s representative procured an assessment of Ms Gower by an orthopaedic surgeon, which is set out in Dr Mourad’s Reports. The Reports therefore contain an assessment of the 2016 Injury and Dr Mourad’s opinion regarding its connection to the Claimed Injury.
In this regard, apart from the Reports, there has been no assessment by an orthopaedic surgeon of Ms Gower’s 2016 Injury. As a result, the Reports prepared for this proceeding are highly relevant to the accepted claim in relation to the 2016 Injury, including its proper diagnosis and prognosis; its connection with Ms Gower’s employment; and her treatment requirements. Allowing the Respondent to use the Reports for the purpose of managing the 2016 Injury will enable it to consider whether its assessment of the 2016 Injury remains current, which in turn will assist in the allocation of appropriate entitlements under the SRC Act and the required treatment to assist Ms Gower’s recovery. Therefore, even if the 2016 Injury and the Claimed Injury are separate and distinct from each other, which is the finding of Dr Mourad in the Reports, the Tribunal is satisfied that the Respondent should be released from the implied undertaking to facilitate the proper and effective management of the 2016 Injury in circumstances where one of the main reasons the Reports came into existence was to identify the connection, if any, between those injuries.
Prejudice
The Tribunal does not consider that Ms Gower would suffer prejudice if the Reports are used by the Respondent for claims management purposes in relation to the 2016 Injury. For the reasons set out above, the Tribunal is satisfied that the Reports are to be used for the legitimate purpose of assisting in ensuring Ms Gower’s entitlements under the SRC Act are correct and that she is receiving the required treatment for the 2016 Injury.
Reports publicly available after being taken into evidence
The Reports were prepared with the view to them becoming evidence in this proceeding and were, accordingly, expected to enter the public domain when they were taken into evidence at a future hearing by the Tribunal. In this regard, section 35(5) of the Administrative Appeals Tribunal Act 1975 sets out that ‘it is desirable…that evidence given before the Tribunal and the contents of documents received in evidence by the Tribunal should be made available to the public and to all the parties’. The fact that this proceeding may not reach a hearing (if, for instance, it was to settle beforehand) should not be determinative of a question of whether to release a party from the implied undertaking if there are good reasons to do so in advance of a document being taken into evidence.
Public interest and administration of justice
To refuse the Respondent’s request to be released from the implied undertaking would see the unnecessary future duplication of time and resources for the same effect: a report that provides a contemporary assessment of the 2016 Injury. It would also preclude the Respondent from using the Reports for the legitimate reason of effectively and efficiently managing the 2016 Injury to ensure that Ms Gower is receiving the appropriate entitlements under the SRC Act and the necessary associated treatment. Such an outcome would not be in the public interest or ensure the proper administration of justice. To this end, the Reports have an undeniable relevance and importance to assist in the ongoing management of Ms Gower’s 2016 Injury, such that the Respondent should not be precluded from their use for that purpose, including because it is the most efficient and effective course in the circumstances.
Utilisation of the Reports in relation to the 2016 Injury will also assist in the correct application of public funds towards Ms Gower’s associated entitlements under the SRC Act. To this end, if the Tribunal did not release the Respondent from the implied undertaking, having regard to Dr Mourad’s assessment of Ms Gower in the Reports, it is highly likely that the Respondent will procure a separate report specifically in relation to the 2016 Injury, and most likely again from Dr Mourad, that the Respondent is able to use for the purpose of its management of the 2016 Injury, without requiring a release from the Tribunal. Plainly, such a course would neither be an efficient nor effective use of the Respondent’s time or of public finances. It would also require Ms Gower to attend a further medical assessment largely covering the same subject matter as the Reports. For these reasons, the Tribunal considers that it is in the public interest and consistent with the administration of justice to release the Respondent from the implied undertaking.
Disclosure of personal and sensitive information
The Reports contain personal and sensitive information about Ms Gower’s medical history and circumstances. Disclosure of this information is protected pursuant to legislation such as the Information Privacy Act 2014 (ACT). Additionally, the Respondent has undertaken to only provide the Reports to those managing the 2016 Injury, such as claims managers and rehabilitation providers. As a result, the Tribunal is satisfied that disclosure of the material in the Reports for claims management purposes is appropriate following the release of the Respondent from the implied undertaking.
DECISION
An implied undertaking applies in relation to the Reports, namely the medical reports of Dr Mourad dated 4 January and 4 February 2019, which were provided to the Respondent’s representative for their use in the present proceeding regarding the Claimed Injury.
Having regard to all of the circumstances, the Tribunal considers it to be an appropriate exercise of its discretion to release the Respondent from the implied undertaking so as to allow the Respondent to use the Reports for the ‘collateral or ulterior purpose’ of managing the 2016 Injury. Accordingly, for the reasons set out above, the Tribunal allows the Respondent’s request to be released from the implied undertaking in relation to the Reports.
I certify that the preceding 31 (thirty-one) paragraphs are a true copy of the reasons for the decision herein of Member W Frost.
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Associate
Dated: 27 September 2019
Date(s) of hearing: 6 September 2019 Solicitors for Applicant: Mr Dean Prail, Prail Lawyers Solicitors for Respondent: Mr Aasish Ponna, Australian Government Solicitor
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