Hanel and Comcare (Compensation)
[2024] AATA 2954
•20 August 2024
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 351SECONDARY 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 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.
However, the applicant refused to withdraw the applications for review, asserting that the Reconsideration did not resolve all matters before the Tribunal. The respondent invited he Tribunal to dismiss both applications for review. The question whether the Reconsideration resolved all matters before the Tribunal and application to dismiss, were listed for argument.
The argument was heard on 12 February 2024. The applicant accepted that the Reconsideration wholly resolved the s 16 claim but submitted that at the time he made the s 14 claim he also made a claim pursuant to s 19 of the Act for normal weekly earnings (NEW). He referred the Tribunal to an email and two medical certificates which he said he provided to his employer in support of the s 19 application in relation to certified periods of incapacity. It became apparent that there was no decision made in respect of the s 19 claim and no application for review of a decision filed in the Tribunal which enlivened the Tribunal’s jurisdiction. The Tribunal applications related to reviewable decisions only with respect to the s 14 and s 16 claims.
During argument, the applicant conceded the two medical certificates produced, may not have been provided to the respondent. Further in 2024 the applicant made a further s 19 NWE claim for various periods of incapacity, including those referred to in the two medical certificates he referred to the Tribunal. That claim was at the time of the hearing being considered in the usual way and awaiting a decision. Hence the parties agreed that it was appropriate the Tribunal dismiss the applications for review pursuant to s 42B(1)(a) of the AAT Act and for reasons given orally by the Tribunal, the applications for review were dismissed. Written reasons were requested.
All matters before the Tribunal were then at an end.
THE CONSIDERATION OF THE RELEASE FROM THE HARMAN UNDERTAKING
The 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 undertaking
5.2 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 circumstance
5.6 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’).
In Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3, the Full Court of the Federal Court considered the circumstances in which a party may be released from the implied undertaking and said at [31]:
“In order to be released from the implied undertaking it has been said that a party in the position of the appellants must show ‘special circumstances’: see, for example, Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217. It is unnecessary to examine the authorities in this area in any detail. The parties were not in disagreement as to the legal principles. The notion of ‘special circumstances’ does not require that some extraordinary factors must bear on the question before the discretion will be exercised. It is sufficient to say that, 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.”
The applicant in his supplementary submissions dated 5 July 2024 under heading ‘Special Circumstances’ at paragraph 10 and following, referred the Tribunal to the observations of Flick J in Ashby v Slipper (No 2) [2016] 343 ALR 351 (Ashby) at [10] namely:
“… The need for “special circumstances” recognises the balance between reasons for imposing the constraint on material secured for use in proceedings and the reasons why a party may seek to free itself from that constraint. There must be a reason to release a party from the constraint initially imposed which seeks to balance – or at least take into account – the reasons for imposing the constraint in the first place. Reasons for initially imposing the constraint include a recognition that the Court’s compulsory processes of obtaining information may have been employed to secure that information – in some cases from third parties – in order to facilitate the administration of justice between the parties to litigation. Reasons for relaxing the constraint frequently involve considerations going beyond the immediate interests of the parties to particular litigation (and those whose otherwise confidential materials have been subpoenaed) and involve the wider public interest, including the public interest in the administration of justice and the administration of the law more generally.”
The applicant at paragraphs 12 and 13 submitted as follows:
12. “In Ashby, the Commonwealth of Australia was granted leave to use exhibits by providing them to the Australian Federal Police (AFP) for the purposes of:
·the conduct of investigations by the AFP as to whether offences have occurred against the laws of the Commonwealth;
·to obtain advice in relation to whether any offences have occurred against the laws of the Commonwealth; and
·in evidence in relation to any prosecution for an offence against a law of the Commonwealth.
13. A release from the implied undertaking by the Tribunal could be couched in similar terms.
Applicant’s request to be released from the implies undertaking.
By email dated 23 February 2024, the applicant asked the Tribunal to identify which documents in the within applications were subject to the implied undertaking, so that (i) he would know whether he needed to apply for any release, (ii) whether he might need to apply to the Tribunal to have documents protected by an order pursuant to s 35 of the AAT Act, and (iii) whether documents lodged at the Tribunal were ever received into evidence. He also raised whether some documents and in particular medical reports were given to the Tribunal under s 35AA of the AAT Act.
In a document also provided by the applicant dated 23 February 2024 headed “Applicant’s Request to the Tribunal for Information Regarding ‘The Implied Undertaking’” the applicant referred to the Tribunal’s General Practice Guideline and then under multiple headings listed numerous documents and asked questions whether they were each the subject of the implied undertaking or received into evidence. The range of documents and questions spanned nearly 5 pages.
By email dated 6 March 2024 the Tribunal Registry replied saying the Tribunal is not an advisory Tribunal and does not give advice. The applicant was told if he wanted to make an application for release from the implied undertaking he should do so and advise which document was the subject of the application for release and the reason for the application. The applicant was also advised that no document had been received into evidence, that orders had been previously made releasing the applicant from the implied undertaking which he may like to consider and further that the written reasons for the oral decision date 12 February 2024 were to be provided that same day.
By email dated 28 March 2024 the applicant attached his application to be released from the implied undertaking in regards documents listed in the application. The list was over 2 pages in length and included numerous medical reports, briefing letters, assessment reports, Tribunal Documents (T Documents) filed in compliance with s 37 of the AAT Act, additional A Documents filed by the Respondent, transcripts of hearing, and submissions by the parties including statements of issues.
The applicant detailed the purposes for the request, which I will briefly summarise as follows:
1. To make complaints and applications to agencies alleging breach of the Privacy Act 1988 relating the applicant’s workers compensation claim and the actions and behaviours of the respondent during the Tribunal proceedings including the alternate dispute resolution process. Those agencies nominated by the applicant were:
·Comcare
·Department of Employment and Workplace Relations (DEWR)
·Office of the Australian Information Commissioner (OAIC) (includes the Australian Information Commissioner, Freedom of Information Commissioner and Privacy Commissioner)
·Federal Court of Australia
·Administrative Appeals Tribunal or Administrative Review Tribunal – Merit reviewer of OAIC determinations
·Commonwealth Ombudsman
2. To the Attorney General’s Department - alleging contravention of Legal Services Directions 2017.
3. A Work Health and Safety Act complaint to Comcare alleging contravention of duties under the Work Health and Safety Act 2011.
4. To the Commonwealth Ombudsman in relation to the management of the workers compensation claim and related issues.
5. To the Safety Rehabilitation and Compensation Commission in relation to the conduct of the workers compensation claim.
The Tribunal received written submissions from the parties. The applicant’s submissions were extensive including submissions dated 31 May 2024 with Annexures A – G, supplementary submissions dated 5 July 2024 and amended request for release of documents of same date, amended supplementary submissions and 2nd amended supplementary submissions dated 18 July 2024 and submissions dated 21 July 2024 in reply to the respondent’s submissions dated 19 July 2025.
The Respondent in submissions dated 2 July 2024 at paragraph 17(a) – (e) helpfully listed the documents which were the subject of the application for release. I agree those are the relevant documents. The list reads:
(a) ‘The briefing letters and the medical reports’
(i) Supplementary Report by Dr Martyn Ewer dated 22 April 2021
(ii) Briefing Letter from McInnes Wilson Lawyers (MWL) to Dr Ewer dated 12 August 2022.
(iii) Supplementary Report by Dr Ewer dated 7 September 2022.
(iv) Briefing Letter from MWL to Dr Ewer dated 19 April 2022(v) Medical Assessment report by Dr Ewer dated 14 June 2022
(vi) Briefing Letter from MWL to Dr Ewer dated 12 August 2022 (repeat of (ii))
(vii) Medical Assessment Report by Dr Ewer dated 14 December 2022
(viii) Briefing Letter from MWL to Dr Ewer dated 19 April 2022 (repeat of (iv))
(ix) Email from MWL to Medico Legal Reporting Services of Australia (MLRSA) dated 16 December 2022
(x) Reconsideration report by Dr Ewer dated 24 January 2023(b) ‘The Tribunal documents’
(i) Comcare letter to Dr Angus, dated 16 December 2019 (T11)
(ii) Comcare letter to Ms Merkel, dated 16 December 2019 (T12)
(iii) ORAMS Rehabilitation Assessment Report, dated 14 January 2020 (T15)
(iv) Comcare request to Dr Gunapu for Medical Report and Clinical Notes, dated 23 January 2020 (T17)
(v) Report from Dr Angus to Comcare, dated 4 February 2020 (T19)
(vi) Comcare request to Dr Ewer for Medical Examination and Report, dated 13 February 2020 (T20)
(vii) Report from Julia Merkel psychologist to Comcare, dated 17 February 2020 (T22)
(viii) Rehabilitation Program Closure Record, dated 24 June 2020 (T26)
(ix) Medicare Patient History Report, dated 21 February 2020 (T30)
(x) Medical Assessment Report by Dr Marty Ewer, dated 12 March 2020 (as redacted) (T23)
(xi) Medical Assessment Report by Dr Shiva Gunapu, dated 18 March 2020 (as redacted) (T24)(c) ‘The Agency documents’
(i) Health Status Assessment, dated 4 September 2006 (A1)
(ii) Work Capacity Certificate, dated 4 February 2020 (A9)
(iii) Rehabilitation Service Program Form, dated 11 February 2020 (A10)
(iv) Certificate of Capacity for Work, dated 2 March 2020 (A11)(d) ‘The submission documents’
(i) The Respondent’s 9-page submission on 29 April 2021 for the directions hearing on 30 April 2021
(ii) The Respondent’s 13-page submission on 1 November 2021 for the directions hearing on 12 November 2021
(iii) The Applicant’s submission dated 25 October 2021 in relation to the substantive issues arising under section 57(2) of the SRC Act.
(iv) The Applicant’s submission dated 8 November 2021 in reply to the Respondent submissions in relation to the substantive issues arising under section 57(2) of the SRC Act.
(v) The Applicant’s submission dated 29 October 2021 in response to the Respondent’s submission in relation to the summons issue.
(vi) The Applicant’s submission dated 8 February 2024 for the interlocutory hearing on 12 February 2024.(e) ‘The Applicant’s statements of issues’
(i) The Applicant’s 40-page Statement of Issues dated 1 December 2020
(ii) The Applicant’s 9-page Supplementary Statement of Issues No. 1 dated 2 December 2020
(iii) The Applicant’s 8-page Supplementary Statement of Issues No. 2 dated 29 January 2021
(iv) The Applicant’s 14-page Supplementary Statement of Issues No. 3 dated 4 February 2021
(v) The Applicant’s 7-page Supplementary Statement of Issues No. 4 dated 4 February 2021
The Respondent submits that other than the document referred to at (d)(1) the balance of the documents are subject to the Harman undertaking. All other documents were either lodged under compulsion or prepared or contain reference to documents the subject of the Harman undertaking. The ‘briefing letters and medical reports’ are lodged under compulsion in accordance with directions from the Tribunal or prepared by reference to documents the subject of the Harman undertaking.
In the Telephone Directions Hearing dated 8 July 2024, the parties agreed that the Tribunal decide the question of the release from the Harman undertaking on the submissions and papers provided by the parties. However, in regards to the briefing letters and reports the applicant raised whether a briefing letter and medical report from Dr Ewer was lodged with the Tribunal under compulsion. He said although the Tribunal gave Directions on 25 January 2021 for the respondent to give to the Tribunal and the applicant Dr Ewer’s report by 24 March 2021, and although there was a briefing letter dated 17 March 2021, no report was lodged by the due date, and no application for extension of time was made and therefore the Direction expired on 24 March 2021.
The applicant then said that in regards a report of Dr Ewer that was subsequently received, he repeatedly asked the respondent whether it was filed pursuant to s 36AA of the AAT Act in accordance with the ongoing obligation to lodge material with the Tribunal as soon as practicable after obtaining possession of it but received no response. He does concede however the documents were prepared with reference to documents and summoned documents the subject of the Harmans undertaking. Given that concession there was no utility in the applicant raising the question other than as an opportunity to criticise the respondent. I have considered the briefing letters and medical reports. I agree with the respondent’s submission and am satisfied that the Harman undertaking applies in relation to all of them.
I raised with the parties whether the T Documents were the subject of the Harman undertaking as they were received pursuant to a legislative obligation. The parties have proceeded on the basis that the Harman undertaking applies, and I too will, for the purpose of this matter, proceed on that basis.
The respondent in written submissions dated 2 July 2024 at paragraph 70 made a number of observations including other mechanisms available for the production of documents, namely:
·the release from the Harman undertaking did not prevent or hinder the applicant from pursuing his complaints;
·certain documents are held on Mr Hanel’s Comcare claim file and not created for the purpose of Tribunal proceedings, and can be obtained by the applicant under s 59(1)(a) of the Act;
·the applicant can obtain certain documents held by the applicant’s employer pursuant to the Freedom of Information Act 1982;
·section 171 of the WHS Act empowers inspectors to require production of certain documents and answers to certain questions, and therefore documents relevant to the investigation can be obtained from the Respondent;
·that certain conditions precedent are required such as, (i) a decision or recommendation from the Office of the Australian Information Commission that Comcare has breached the Privacy Act 1988; (ii) a decision from the work health safety regulator that Comcare has breached the WHS Act in relation to the applicant; (iii) a notification to the Attorney-General’s Department from Comcare that it has breached the Legal Services Directions in relation to the applicant.
The Applicant in supplementary written submissions dated 5 July 2024 and the accompanying list of documents, narrowed the purpose for the release from the Harman undertaking and removed 12 documents from the list of documents the subject of the application. The amended purposes were (i) Privacy Act matters (ii) Work Health and Safety Act matters, and (iii) Legal Services Direction matters. I will briefly summarise the nature of the complaint purposes.
Privacy Act matters
The applicant sought release from the Harman undertaking in furtherance of any complaint by the applicant to the Office of the Australian Information Commissioner (‘OAIC’) regarding any breaches to the Privacy Act 1988 regarding his workers compensation claim including the conduct of the respondent during tribunal proceedings and the alternate dispute resolution processes. The Applicant submitted “this may involve the use of the related documents by the applicant by providing them to the OAIC for the purpose of” conducting investigations, obtaining advice in relation to any offence committed, use in associated decision or determination, and provide evidence in associated prosecutions for offences against the Privacy Act. He also listed four other agencies he said may have a function in regard the Privacy Act.
The respondent understands this reason for release to include the applicant’s purported absence of consent to collection of personal information for the purposes of a section 57 medical assessment under the Act, which assessment was not required or authorised under an order of the Tribunal or at law; the continued complaint that the use of s 57 to compel him to undergo a medical assessment was unlawful or unfair because it involved intimidation, deception and was unnecessarily intrusive; and the forced psychiatric examination was not reasonably necessary for alternative dispute resolution purposes or the defence of his claim.
Work Health and Safety matters
This relates to the applicant’s complaint about the respondent’s failure to perform or properly perform its duties under the Work Health and Safety Act 2011 (‘WHS Act’) and possible prosecution of offences under the WHS Act. The Applicant lists what this may involve and the possible entities to be engaged in exercising the powers and functions under the WHS Act. This is the criminal offending to which the applicant referred when referencing Ashby (see paragraphs 16 – 17 above).
The respondent understands this complaint to include the respondent’s role in the Tribunal proceedings in terms of eliminating or minimising risk to the applicant’s mental health and to exhaust all other options before issuing the s 57 Notice; proper determination that a clear need existed before issuing the s 57 Notice; and contravening the Legal Services Direction.
Legal Services Direction matters
This relates to the applicant’s complaint to the Office of Legal Services Coordination (‘OLSC’) being an office within the Attorney General's Department (‘AGD’) in relation to allege contravention of the Legal Services Direction 2017 (the Direction) and allegations in regards the respondents conduct of the matter before the Tribunal including to act as a model litigant and participate as required in the alternate dispute resolution process. The applicant listed what this may involve namely the use of documents for the purpose of the OLSC inquiry, obtaining advice and evidence including in relation to possible sanctions by the Attorney General.
The respondent understands this complaint involves consideration of unnecessary delay; the making of an early assessment; issues with the handling of the claim including the s 57 assessments; failure to limit the scope of the Tribunal proceedings, participate in alternate dispute resolution and minimise costs of the Tribunal proceedings.
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.
As can be seen by the initial communications from the applicant to the Tribunal and the application for the release from the Harman undertaking, the applicant intended to cast a very wide net of complaint across a broad range of government authorities in the pursuit of his search for restorative justice, albeit that net has more recently been reduced.
The applicant has very strong views about the legislative framework of and incidental to the Act. This was evident when dealing with the validity of the s 57 Notice and later the Reconsideration. It is also very clear that despite the ruling of the Tribunal about the validity of the s 57 Notice, the applicant remains of the view that it was invalid, remains aggrieved by the process and his required attendance at the second IME, despite the fact that once he attended the second IME, and a report was received from Dr Ewer, the respondent accepted his claims for compensation and served the applicant with the Reconsideration.
It remains important that, at the moment, all that has happened is that the applicant has made a complaint to a number of government authorities and nothing more. Each complaint may or may not have merit, and each authority may or may not decide to take further action or inquiry in relation to the complaint either in whole or in part. Further, authorities have certain statutory rights and obligations which may be enlivened before progressing any complaint and some have their own powers to compel production of relevant material.
The applicant cannot say what use will be made, if at all, of any specific document or documents in furtherance of a complaint process. He submits what the nominated documents, in his opinion, may be used for by each authority, but that is based on his perception and belief about the merits of his complaint and how each should be dealt with.
In so far as the applicant refers to Ashby, in that matter it was the Commonwealth of Australia that was granted leave to use documents by providing them to the AFP. That is not the case here. The applicant has made a complaint about conduct which he says offends the WHS Act and is a criminal offence, but the prosecuting authority has not determined the merit of the complaint, initiated an investigation, or requested documents relevant to the investigation or prosecution. It also has power under its own legislative scheme to obtain documents.
At its highest, at the moment, the request for the release from the Harman undertaking is speculative and based on the applicant’s perceptions, not knowing whether the authority has determined that the complaint has merit, will be acted upon, the relevance of specified documents to any investigation and any sanction or prosecution that may follow.
The submission by the applicant at the Telephone Directions Hearing referred to at paragraph 37, encapsulates what the applicant intends to achieve, namely, to apply for the release of material now, carte blanche, so that the applicant does not have to keep coming back to the Tribunal, and the Tribunal does not have to keep responding to individual requests for release of documents, that are required by a particular authority.
However, that approach does not demonstrate that special circumstances exist. It also overlooks the weighing process that the Tribunal must undertake in balancing the various considerations in deciding whether, in the operation of the Tribunal’s broad discretion, the release from the Harman undertaking should be granted. For example, as the court discussed in Springfield Nominees, most importantly, until it is known what complaint or part thereof is the subject of an investigation by an authority, whether the authority requires a specified document(s) and the reason that document is required in achieving the required outcome, the Tribunal cannot determine whether the public interest in the disclosure of the document(s) overrides the public interest, in the administration of justice, in maintaining the confidentiality of documents the subject of the Harman undertaking.
It is this weighing process that the Tribunal must undertake in relation to each document or class of document and the relevance of each to the complaint under investigation and required by the relevant authority, and not the carte blanche approach suggested by the applicant, to avoid the applicant coming back to the Tribunal and the Tribunal having to respond to individual requests. If repeated requests need to be made and the Tribunal considers those requests to ensure the weighing process is maintained, then that is what must occur.
Hence this application for release from the Harman undertaking, at this stage in the complaint process, is premature and misconceived and should be refused.
DECISION
The application by the applicant to be released from the implied undertaking of confidentiality (the Harman undertaking) is refused.
I certify that the preceding 50 (Fifty) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth
...................[Sgnd]...........................
Feng Jiang Associate
Date: 20 August 2024
Date of hearing: 8 July 2024 Representative for the Applicant:
Phillip Lee Hanel, Self-represented Representatives for the Respondent: Ms Athena Cains, Mr Peter Woulfe
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