Hanel and Comcare (Compensation) - [2024] AATA 2954

Hanel and Comcare (Compensation) [2024] AATA 2954 (20 August 2024)
ReviewNumber: 2020/5379, 2021/0997
Division:GENERAL DIVISION
File Number(s): 2020/5379, 2021/0997
Re:Phillip Lee Hanel
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Senior Member B J Illingworth
Date:20 August 2024
Place:Adelaide

The application by the applicant to be released from the implied undertaking of confidentiality (the Harman undertaking) is refused.
........................[SGND]..........................
Senior Member B J Illingworth
CATCHWORDS
Implied Undertaking of Confidentiality – Harman Undertaking – Freedom of information – Application for release of documents – release of documents for other purposes – grounds for release of proceeding documents – poor merits for release
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Privacy Act 1988 (Cth)
Work Health and Safety Act 2011 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
CASES
Harman v Secretary of State for the Home Department [1983] 1 AC 280
Glencore Coal Pty Ltd v Franks (2021) 284 FCR 622
Prime Finance Pty Ltd v Randall [2009] NSWSC 361
Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3
Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217
Ashby v Slipper (No 2) [2016] 343 ALR 351
SECONDARY MATERIALS
General Practice Direction (Administrative Appeals Tribunal)
Legal Services Direction 2017 (Attorney General’s Department)
REASONS FOR DECISION
Senior Member B J Illingworth
20 August 2024
INTRODUCTION

The within proceedings which are now finalised, related to two work related claims for compensation arising from the provisions of the Safety, Rehabilitation and Compensation Act 1988 (‘the Act’).
Mr Hanel (‘the applicant’) has applied to the Administrative Appeals Tribunal (‘the Tribunal’) to be released from the implied undertaking of confidentiality (‘the Harman undertaking’),[1] in relation to material filed under compulsion in the within proceedings.
[1] Harman v Secretary of State for the Home Department [1983] 1 AC 280.
BACKGROUND TO THE PROCEEDINGS BEFORE THE TRIBUNAL
The applications for review related to reviewable decisions made by the respondent pursuant to s 14 of the Act being a claim for anxiety, depression and stress, and s 16 of the Act for medical expenses, in proceedings 2020/5379 and 2021/0997 respectively.
The applicant was subsequently served with a s 57 Notice under the Act, dated 21 July 2021, suspending the applicant’s rights to institute or continue proceedings under the Act, following repeated failures to attend a second independent medical examination (‘IME’) with Dr Ewer psychiatrist. The applicant unsuccessfully challenged the validity of the s 57 Notice before the Tribunal. He had particular views about the operation of the legislation generally, his obligation to attend the second IME and the validity of the s 57 Notice. In the decision dated 16 February 2022 the Tribunal decided the s 57 Notice was valid and as a consequence, the proceedings before the Tribunal were by operation of s 57(2) of the Act suspended until the examination by Dr Ewer took place.
It should be noted that the applicant had a detailed knowledge of the Act. He was employed by Comcare. In his Workers Compensation…

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 Hanel and Comcare (Compensation)

Details

AGLC: Hanel and Comcare (Compensation) [2024] AATA 2954
Case: [2024] AATA 2954
Decision Date: 20 August 2024

CaseChat Overview and Summary

This matter concerned an application by Mr Hanel to the Administrative Appeals Tribunal (the Tribunal) for release from the implied undertaking of confidentiality, commonly known as the *Harman* undertaking, in relation to documents filed under compulsion in earlier proceedings. These earlier proceedings involved Mr Hanel's claims for compensation for anxiety, depression, and stress, and for medical expenses, against his former employer, Comcare. The *Harman* undertaking generally prevents documents obtained through compulsory process in litigation from being used for any purpose other than the proceedings in which they were produced, unless leave is granted by the court or tribunal.

The Tribunal was required to determine whether to grant Mr Hanel's application for release from the *Harman* undertaking. Specifically, the Tribunal needed to consider the grounds upon which such an undertaking could be released, particularly when the documents were sought for purposes beyond the original compensation claims, such as making complaints to regulatory bodies. The Tribunal also had to assess the applicant's stated intention to use the documents to seek "restorative justice" and hold the respondent to account, in light of the history of their interactions.

The Tribunal considered the principles governing the release of documents subject to the *Harman* undertaking, as outlined in its General Practice Direction and as discussed in case law such as *Glencore Coal Pty Ltd v Franks*. These principles involve weighing competing public interests, including the public interest in the administration of justice and the preservation of confidentiality, against potential public interest in disclosure, such as in the investigation of criminal offences. The Tribunal noted that a broad, "carte blanche" approach to release was not ideal, preferring a more specific approach where the nature of the complaint and the relevance of particular documents could be assessed. Mr Hanel argued for a broad release to avoid multiple applications and to facilitate his complaints to various regulatory bodies, stating that the documents were relevant to these complaints.

Ultimately, the Tribunal found that all matters before it in the original compensation proceedings had been resolved. The Tribunal noted the ongoing tension between the applicant and the respondent, and the applicant's stated intention to seek restorative justice. However, the decision does not specify the final orders made regarding the release of the documents, other than noting the applicant's previous partial releases for specific purposes.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Mr Hanel (‘the applicant’) has applied to the Administrative Appeals Tribunal (‘the Tribunal’) to be released from the implied undertaking of confidentiality (‘the Harman undertaking’),[1] in relation to material filed under compulsion in the within proceedings. [1] Harman v Secretary of State for the Home Department [1983] 1 AC 280.BACKGROUND TO THE PROCEEDINGS BEFORE THE TRIBUNAL The applications for review related to reviewable decisions made by the respondent pursuant to s 14 of the Act being a claim for anxiety, depression and stress, and s 16 of the Act for medical expenses, in proceedings 2020/5379 and 2021/0997 respectively. The applicant was subsequently served with a s 57 Notice under the Act, dated 21 July 2021, suspending the applicant’s rights to institute or continue proceedings under the Act, following repeated failures to attend a second independent medical examination (‘IME’) with Dr Ewer psychiatrist. The applicant unsuccessfully challenged the validity of the s 57 Notice before the Tribunal. He had particular views about the operation of the legislation generally, his obligation to attend the second IME and the validity of the s 57 Notice. In the decision dated 16 February 2022 the Tribunal decided the s 57 Notice was valid and as a consequence, the proceedings before the Tribunal were by operation of s 57(2) of the Act suspended until the examination by Dr Ewer took place. It should be noted that the applicant had a detailed knowledge of the Act. He was employed by Comcare. In his Workers Compensation Claim Form (T 10) submitted on 12 December 2019 it records that at the time of his claim, he was employed by the respondent as a “Comcare Inspector, Comcare Business Analyst (non-ongoing) and Comcare Assistant Director (acting).” His claim alleged several issues in the workplace including role ambiguity and uncertainty, role overload, unrealistic timeframes, workplace demands, poor work design, failures to provide information, instruction, suitable training, consistent application of policies and procedures, and engagement with the applicant and managerial failures. Following the Tribunal’s decision dated 16 February 2022, the applicant applied to the Tribunal to be released from the Harman undertaking in relation to certain documents before the Tribunal, so that he could apply to the Attorney General’s Department under the Commonwealth Public Interest and Test Cases Scheme for legal assistance pursuant to s 69 of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’). That application was granted in relation to 12 documents. On 24 February 2023 the Tribunal granted the applicant a further release from the Harman undertaking for the sole purpose of providing 5 documents to his treating medical practitioners for ongoing management of his medical condition. The applicant later attended the second IME with Dr Ewer. After receiving Dr Ewer’s report, which was not before the Tribunal, the respondent served on the applicant, a ‘Reconsideration of own motion’, (‘the Reconsideration’) made pursuant to s 62 of the Act and dated 22 January 2024 which in summary, accepted both the applicants claims for compensation. The respondent said the Reconsideration resolved all matters before the Tribunal and invited the applicant to withdraw his applications for review.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In the Telephone Direction Hearing the Tribunal raised with the applicant whether, until it is known exactly what the complaint is and the consequence of the complaint, it may be better that such complaints be advanced to allow the recipients of the complaints to indicate to the Tribunal whether any document the subject of the Harman undertaking, is relevant to the complaint, so the Tribunal may come to a determination on the matter, instead of a carte blanche approach in making such an application.[4] The applicant then responded: “Yes. Yes, but the complaints have been made. I have made the complaints to the OIC, to Comcare as regulator of the Work Health and Safety Act, and to the OLSC at the first point of call with the legal services directions matters. Those complaints have been made. I haven't been able to provide them with the documents that may be subjected to the implied undertaking, and I've informed them that these proceedings regarding release of those documents are going ahead. I've made the complaints using the documents that I have been able to provide them, and I identify generally where there are documents that I can't give them.Now, the timing for each of them, I don't have any control over. The OIC is very busy, and, you know, there are delays in them even looking at complaints. So my thoughts were to - rather than, you know, have some response from the OIC and then have to reply to the tribunal to release the certain document and then maybe come back. You know, by the time that the WHS regulator gets around to deciding they want the document, making another request to the tribunal and also with the AGD. My thoughts were to apply for the release now, carte blanche, so that I don't have to keep coming back to the tribunal, and the tribunal doesn't have to keep responding to individual requests.The documents that I'm requesting, and I've narrowed my request for documents now, are relevant, I would say, to all of the complaints to various degrees. How much each of the agencies relies on those particular documents, I don't know. Now, it may be that one or more of these agencies comes back and says, 'We don't need to document', but I don't know whether they're going to do that or not. Whether they can rely on the documents I have provided, but it just seems that that sort of practical approach to apply for the release for these purposes rather than having to keep coming back to the tribunal and tying up the tribunal's time.”[5][4] Transcript of Proceedings, AAT No. 2020/5379 dated 8 July 2024, page 3, lines [44]-[47]; page 4, lines [1]-[5].[5] Transcript of Proceedings, AAT No. 2020/5379 dated 8 July 2024, page 4, lines 6-36.CONCLUSION It was apparent throughout the within proceedings and interlocutory applications that there is tension between the applicant and the respondent, and as is evident by the complaints made by the applicant, that the tension continues. In the applicant’s supplementary submissions dated 5 July 2024 at paragraph 8, he said: “It should come as no surprise to the Respondent that after being forced to attend two unnecessary psychiatric examinations (including under repeated threat of having his valid claim in the Tribunal dismissed) the Applicant would now take steps to seek some form of restorative justice.” Here the applicant is plainly referring to the s 57 process and the Notice resulting in the suspension of the applicant’s proceedings under the Act and is determined to bring the respondent to account.

Ratio Decidendi

Legal Principle Established

All matters before the Tribunal were then at an end. THE CONSIDERATION OF THE RELEASE FROM THE HARMAN UNDERTAKINGThe Harman undertaking The AAT General Practice Direction (‘GPD’) refers to the Harman undertaking as it relates to any Division of the Tribunal other than the Migration and Refugee Division and relevantly reads as follows:“Implied undertaking5.2 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 circumstance5.6 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.5.8 We will determine whether to decide the request on the papers or by holding a hearing before making a decision."[2][2] General Practice Direction (Administrative Appeals Tribunal). In Glencore, [3] the Court discussed the consideration that applies in waiving the Harman undertaking and in discussing the judgment of Johnson J in Prime Finance Pty Ltd v Randall [2009] NSWSC 361 at [29] said:“37. The courts have recognised that there can be a public interest in favour of disclosure in respect of information that is relevant to the investigation and prosecution of a criminal offence, which can override the public interest, in the administration of justice, in the preservation of the confidentiality of discovered documents:…. 39. Where a conflict arises, the Court must weigh up the competing public interests, as it will not necessarily be in every case where documents are sought in respect of the investigation and prosecution of the offence that the public interest in disclosure will outweigh the public interest in the preservation of the confidentiality of documents subject to the implied undertaking. Where an application such as this is made, it has been said that factors relevant to the exercise of the Court’s discretion will include the nature of the offence alleged, the cogency of the evidence sought to be adduced in support of it, the authority to which the documents are sought to be disclosed, the manner of the authority’s intended use and the possibility of misuse by that authority and any prejudice, actual or potential, which may be occasioned by the disclosure:”[3] Glencore Coal Pty Ltd v Franks (2021) 284 FCR 622 (‘Glencore’).