Gower and Australian Capital Territory (Compensation)

The Administrative Appeals Tribunal considered a request by the Australian Capital Territory (the Respondent) to be released from an implied undertaking concerning two medical reports (the Reports) prepared by Dr Mourad. Ms Gower (the Applicant) was the subject of these reports, which related to a 2016 injury and a subsequent claimed injury. The core dispute involved whether the Respondent could use these Reports for the purpose of managing Ms Gower's accepted 2016 injury, beyond their initial purpose in the proceeding concerning the claimed injury.

The legal issues before the Tribunal were whether an implied undertaking applied to the Reports, and if so, whether the Respondent should be released from that undertaking to permit the use of the Reports for claims management of the 2016 Injury. The Tribunal was required to determine if such use would cause prejudice to Ms Gower and whether there were sufficient public interest and administrative justice considerations to justify releasing the Respondent from the undertaking.

The Tribunal reasoned that an implied undertaking did apply to the Reports, as they were obtained by the Respondent through Tribunal summonses and were intended for use in the proceeding. However, the Tribunal found that releasing the Respondent from this undertaking was appropriate. It concluded that Ms Gower would not suffer prejudice, as the Reports were expected to enter the public domain if the matter proceeded to a hearing. Furthermore, the Tribunal considered that allowing the Respondent to use the Reports for claims management of the 2016 Injury was in the public interest and served the administration of justice by promoting efficient and effective use of resources and public funds, and by ensuring Ms Gower received appropriate entitlements and treatment. The Tribunal also noted that refusing the request would likely lead to the Respondent obtaining a separate, duplicative report.

The Tribunal ordered that the Respondent be released from the implied undertaking in relation to the medical reports, allowing their use for the purpose of managing Ms Gower's 2016 Injury. The Tribunal was satisfied that disclosure for this purpose was appropriate, given the Respondent's undertaking to limit access to relevant personnel and the protection of personal information under relevant legislation.