Harrington and Pacific National Services Pty Ltd (Compensation)

[2024] AATA 3204

Harrington and Pacific National Services Pty Ltd (Compensation) [2024] AATA 3204 (27 March 2024)

Division:                  GENERAL DIVISION

File Number(s):      2019/5185

Re:  David Harrington

APPLICANT

And  Pacific National Services Pty Ltd

RESPONDENT

INTERLOCUTORY DECISION

Tribunal:                  Dr Stewart Fenwick, Senior Member

Date:  27 March 2024

Place:  Melbourne

The Tribunal grants leave to the Respondent to use the documents lodged in this matter and identified in its correspondence dated 16 January 2024 for the purposes of claims management in respect of the Applicant’s accepted right ankle injury sustained on 14 April 2009 pursuant to sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988.

..............[sgd]..........................................................

Dr Stewart Fenwick, Senior Member

Catchwords

PRACTICE AND PROCEDURE – release from implied undertaking

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Safety, Rehabilitation and Compensation Act 1988 (Cth)

Cases

Australian Postal Corporation v Sinnaiah [2013] FCAFC 98 Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3 LMFP and Comcare [2017] AATA 1512

Newey and Comcare [2019] AATA 1772

Oliver and Comcare [2018] AATA 1964

Springfield Nominees Pty Ltd v Bridgelands Securities Ltd [1992] FCA 720

Vallis and Comcare [2014] AATA 669

Secondary Materials

Administrative Appeals Tribunal General Practice Direction

REASONS FOR INTERLOCUTORY DECISION

Dr Stewart Fenwick, Senior Member

1.This matter was resolved pursuant to s 42C of the Administrative Appeals Tribunal Act 1975 (the Act) on 24 August 2023, following consent being reached between the parties as to the terms of an agreement. Accordingly, a decision of the Respondent was set aside and substituted with a decision that the Respondent was liable to pay compensation in respect of the Applicant’s right ankle injury sustained on 14 April 2009, pursuant to sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act).

2.In correspondence to the Tribunal dated 16 January 2024, the Respondent’s representatives sought release from the implied undertaking in respect of several categories of material previously lodged in this matter, the Applicant having refused to consent to

release. The Respondent stated the reason as being ‘for the purposes of making informed decisions in respect of rehabilitation matters in the management of the Applicant’s accepted right ankle injury claim’. The material identified was as follows:

a.  Summonsed records of:

i.  Yarrawonga Medical Centre;

ii.  Dr Brett Todhunter;

iii.  Dr Julian Fidge (South Wangaratta Medical Centre);

iv.  Victorian Workcover Authority;

v.  Wyndhamvale Health Centre.

b.  Report of:

i.  Dr Gordon Slater dated 02/09/2020;

ii.  Dr Christopher Pring dated 29/10/2020;

iii.  Dr Harvinder Bedi dated 07/07/2021;

iv.  Dr Daniel Goldbloom dated 17/08/2022;

v.  Dr Arshad Barmare dated 20/01/2023;

vi.  Andrew Makboul dated 23/05/2023;

vii.  Dr Reza Sabetghadam dated 24/07/2023.

c.  Imaging reports:

i.  X-ray right ankle dated 28/04/2021;

ii.  MRI right ankle dated 28/04/2021;

iii.  CR right ankle dated 28/04/2021;

3.The Tribunal’s General Practice Direction addresses the nature of the implied undertaking with respect to documents produced under compulsion in an application before the AAT, including their use ‘for another purpose’. The request was the subject of two telephone directions hearings, on 1 March and 26 March 2023 at which I provided both parties the opportunity to address the Respondent’s request. The Applicant’s representative also wrote to the Tribunal on 8 March 2024 stating that ‘rehabilitation involves knowledge of current diagnosis, limitation of movement and treatment’, and seeking from the Respondent detailed reasons why each of the identified documents was sought.

4.At the second telephone directions hearings I raised with the parties relevant prior decisions of the Tribunal. I noted that there may be circumstances where expert medical reports might be considered not disclosable, should there be prejudice to an Applicant (see for example Vallis and Comcare [2014] AATA 669). I invited the Applicant’s representative to make such a claim with respect to the medical reports sought by the Respondent, but no specific claim of prejudice was identified.

5.I also noted the decision of two Deputy Presidents of the Tribunal in which claims management by Comcare was considered to be a reasonable justification for release from the implied undertaking (LMFP and Comcare [2017] AATA 1512, and Oliver and Comcare [2018] AATA 1964 (Oliver)). I also note in this respect the decision of another Deputy President Newey and Comcare [2019] AATA 1772 (Newey).

6.These decisions are based in an acknowledgement that authorities provide that special circumstances must be made out for the release to be provided (Springfield Nominees Pty Ltd v Bridgelands Securities Ltd [1992] FCA 720). This has been described, in summary, as requiring that a good reason be shown as to why documents should be used for some other, non-litigious purpose (Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3, [31]).

7.Tribunal considerations in Newey and also Oliver appear to have been grounded in a relatively detailed appreciation of medical material in the context of compensation claims, and the nature of decision-making under the SRC Act. In Newey, indeed, objection was made to release on the basis that release was for a purpose collateral or ulterior to that for which the documents were obtained.

8.On my reading of these decisions, in short, it is not necessarily a given that ‘claims management’ is an effective catch-all justification for release of medical material lodged in a Tribunal matter. There must be, at a minimum, a logical and probative connection between the nature of the material in the context of an application before the Tribunal with respect to a claim concerning a specific injury under the SRC Act, and the intended future claims management. Such a link exists in this matter. Furthermore, it may in fact be the case that no release is required where claims management related directly to the compensable injury (see for example Oliver [58]).

9.To the extent that the objection here is against the use of the requested material for rehabilitation purposes (as opposed to consideration of medical expenses or incapacity (sections 16 and 19 of the SRC Act)), I consider that the objection still fails. Consideration of rehabilitation under Part III of the SRC Act is undertaken with respect to ‘an injury’ (see sections 36 and 37 of the SRC Act, and Australian Postal Corporation v Sinnaiah [2013] FCAFC 98). That is, rehabilitation is an extension of claims management in relation to specific injuries. As it is my understanding that the material relates to the ongoing claim with

respect to the Applicant’s right ankle injury, I consider there to be, as noted above, a sufficient connection with this claim to justify release.

INTERLOCUTORY DECISION

10.For the reasons given above, the Tribunal grants leave to the Respondent to use the documents lodged in this matter and identified in its correspondence to the Tribunal dated 16 January 2024 for the purposes of claims management in respect of the Applicant’s accepted right ankle injury sustained on 14 April 2009 pursuant to sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988.

I certify that the preceding 10 (ten) paragraphs are a true copy of the reasons for the decision herein of Dr Stewart Fenwick, Senior Member

....................[SGD]....................

Associate

Dated: 27 March 2024

Counsel for the Applicant

Solicitors for the Applicant: Counsel for the Respondent

John Zigouras

J.N Zigouras & Co Lawyers Adam Bundy

SolicitorsfortheRespondent:

McInnes Wilson Lawyers