HDCZ and National Disability Insurance Agency
[2023] AATA 812
•31 March 2023
HDCZ and National Disability Insurance Agency [2023] AATA 812 (31 March 2023)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number: 2021/1836
Re:HDCZ
APPLICANT
AndNational Disability Insurance Agency (No 2)
RESPONDENT
DECISION
Tribunal:Member P Smith
Date:31 March 2023
Place:Sydney
Leave is granted to the Chief Executive Officer of The National Disability Insurance Agency to be released from the implied undertaking under Part 5 of the Administrative Appeals Tribunal: General Practice Direction given under section 18B of the Administrative Appeals Tribunal Act 1975 (Cth) in respect of the documents identified below so that they may use the documents at future planning meetings for the purpose of conducting reassessments of the Applicant’s Plan to determine reasonable and necessary supports that will be funded under the National Disability Insurance Scheme for the purpose of section 34 of the National Disability Insurance Scheme Act 2013 (Cth):
1.The document titled “details of the Applicant’s treating health professionals, including any allied health professionals”, identified by the Applicant as 2 in the bundle of documents the Applicant provided on 8 June 2021.
2.The undated letter titled ‘Physiotherapy’ by Radwan Dannawi, ‘Principal physiotherapist’ identified by the Applicant as H13 in the bundle of documents provided by the Applicant on 8 June 2021 in accordance with the direction given by the Tribunal on 13 May 2021.
3.The undated letter titled ‘Speech pathology’ by Fida Hajaj, ‘Principal Snr occupational therapist’, on Fit By Physio letterhead identified by the Applicant as H13 in the bundle of documents provided by the Applicant on 8 June 2021 in accordance with the direction given by the Tribunal on 13 May 2021.
4.The letter of Dr Omar Najjarine, podiatrist, dated 12 December 2020 identified by the Applicant as H13 in the bundle of documents provided by the Applicant on 8 June 2021 in accordance with the direction given by the Tribunal on 13 May 2021.
5.The undated letter titled ‘Occupational therapy’ by Fida Hajaj, ‘Principal Snr occupational therapist’ on ‘Occupational Therapy Services’ letterhead identified by the Applicant as H13 in the bundle of documents provided by the Applicant on 8 June 2021 in accordance with the direction given by the Tribunal on 13 May 2021.
6.The ‘AHP community and community services podiatric therapy functional report’ by John Mamis, podiatrist, dated 24 April 2021 identified by the Applicant as H19 in the bundle of documents provided by the Applicant on 8 June 2021 in accordance with the direction given by the Tribunal on 13 May 2021.
7.The ‘Client assessment report’ by Nazan Arabul, provisional psychologist, dated 1 April 2021 identified by the Applicant as H20 in the bundle of documents provided by the Applicant on 8 June 2021 in accordance with the direction given by the Tribunal on 13 May 2021.
8.The ‘Occupational therapy functional capacity assessment’ by Sobhi Maaliki, occupational therapist, dated 29 April 2021 identified by the Applicant as H21 in the bundle of documents provided by the Applicant on 8 June 2021 in accordance with the direction given by the Tribunal on 13 May 2021.
9.The ‘Physiotherapy assessment report’ by Mahmoud Ayish, physiotherapist, dated 28 March 2021 identified by the Applicant as H22 in the bundle of documents provided by the Applicant on 8 June 2021 in accordance with the direction given by the Tribunal on 13 May 2021.
10.The ‘Speech pathology progress & needs report’ by Sarah Sabsabi, speech pathologist, dated 1 April 2021 identified by the Applicant as H23 in the bundle of documents provided by the Applicant on 8 June 2021 in accordance with the direction given by the Tribunal on 13 May 2021.
11.The letter of Dr Omar Najjarine, podiatrist, dated 31 March 2021 identified by the Applicant as H24 in the bundle of documents provided by the Applicant on 8 June 2021 in accordance with the direction given by the Tribunal on 13 May 2021.
12.The letter of David Yuen, physiotherapist and ergonomist, dated 15 June 2020 identified by the Applicant as H25 in the bundle of documents provided by the Applicant on 8 June 2021 in accordance with the direction given by the Tribunal on 13 May 2021.
13.The ‘AHP community and community services podiatric therapy functional report’ by John Mamis, podiatrist, dated 6 July 2021 identified by the Applicant as H63 in the bundle of documents provided by the Applicant on 26 August 2021 in accordance with the direction given by the Tribunal on 12 August 2021.
14.The ‘Psychology assessment report’ by Nazan Arabul, provisional psychologist, and Walid Ahmad, psychologist, dated 12 August 2021 identified by the Applicant as H64 in the bundle of documents provided by the Applicant on 26 August 2021 in accordance with the direction given by the Tribunal on 12 August 2021.
15.The ‘Physiotherapy assessment report’ by Mahmoud Ayish, physiotherapist, dated 22 August 2021 identified by the Applicant as H65 in the bundle of documents provided by the Applicant on 26 August 2021 in accordance with the direction given by the Tribunal on 12 August 2021.
16.The ‘Speech pathology progress and needs report’ by Sarah Sabsabi, speech pathologist, dated 7 September 2021 identified by the Applicant as ‘H66’ in the bundle of documents provided by the Applicant on 26 August 2021 in accordance with the direction given by the Tribunal on 12 August 2021.
17.The report of Dr Fernando Roldan, Clinical Psychologist, dated 16 December 2021 provided by the Respondent on 23 December 2021.
.............................[SGD]..................................
Member P Smith
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – Request made to the Tribunal by the Respondent pursuant to Part 5 of the Administrative Appeals Tribunal: General Practice Direction to be granted leave to be released from an implied undertaking the Respondent gave to the Tribunal in respect of three sets of documents in the course of the proceeding – where the Respondent received two sets of documents from the Applicant under compulsion – whether an implied undertaking applies to an expert report that was provided to the Tribunal and the Applicant by the Respondent but not under the compulsory processes of the Tribunal – because the report refers to the two sets of documents that are subject to the implied undertaking – whether leave should be granted to the Respondent so that they may use the documents for the purpose of carrying out their various functions under the National Disability Insurance Scheme Act 2013 (Cth), which may include using the documents at future planning meetings when reassessing reasonable and necessary supports – whether the Respondent intends to use the documents for a collateral or ulterior purpose not connected to the Tribunal proceeding – whether the reasons for the request are mysterious and/or vague and whether the request fails to give substantial reasons – whether the request should be refused on the basis that the documents contain health and personal details about the Applicant – whether special circumstances exist – whether the legal representative for the Respondent and their expert witness breached the implied undertaking – public interest – leave to be released from the implied undertaking granted
Legislation
National Disability Insurance Scheme Act 2013 (Cth), ss 33(2), 33(5)(b), 34, 42, 48, 99, 100, 100(6)(b)
Administrative Appeals Tribunal Act 1975 (Cth), ss 18B, 33(2A)(a), 33(5), 35(3), 37, 38AA, 42A(1A), 42A(1B), 42D, 63
National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Act 2022 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)Cases
NWCB, ZFND and GXFS and National Disability Insurance Agency [2020] AATA 4555
Harman v Secretary of State for the Home Department [1983] 1 AC 280
Alterskye v. Scott [1948] 1 All ER 469
Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10
Plate Glass Holdings Pty Ltd v Fraser Gordon Investments Pty Ltd, [2012] FCA 1487
Hearne v Street (2008) 235 CLR 125
La Mancha Africa S.A.R.L. v Commonwealth of Taxation [2021] FCA 1564Crest Homes Plc v Marks [1987] AC 829
Holpitt Pty Ltd v Varimu Pty Ltd (1991) 29 FCR 576
Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316
Mann v Medical Defence Union Ltd [I997] 45 FCA (unreported, Ryan J, 7 February 1997)
Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316
Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217
Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3
LMFP and Comcare (Compensation) [2017] AATA 1512
Cook and National Disability Insurance Agency [2021] AATA 1111
Secondary Materials
Administrative Appeals Tribunal: General Practice Direction, (28 February 2019), Part 5
REASONS FOR DECISION
Member P Smith
INTRODUCTION
HDCZ (the Applicant) is a 32-year-old participant of the National Disability Insurance Scheme (the NDIS). She has a diagnosis of Down Syndrome and intellectual and physical disabilities, including Biomechanical and foot related issues[1]. It is reported that the Applicant has hypotonia, severe pes planus, varus knees and over supination of the feet[2]. It is reported that the Applicant has a discrepancy in the length of legs, requiring custom shoes when mobilising[3]. It is also reported that the Applicant presents with expressive and receptive language difficulties, with her speech being described as unintelligible when she speaks in phrases over two words[4].
[1] See the Client Assessment Report of Nazzan Arabul dated 1 April 2019.
[2] See the Physiotherapist Assessment Report of Mahmoud Ayish dated 28 March 2021.
[3] See the Occupational Therapy Functional Capacity Assessment of Sobhi Maaliki dated 29 April 2021.
[4] See the Speech Pathology Report of Sarah Sabsabi dated 1 April 2021.
The Applicant lives in Sydney in a social housing property with her disabled mother (Mrs HDCZ) who suffers from a medical condition. Mrs HDCZ is the Applicant’s primary carer and informal support and also the Applicant’s Plan Nominee. The Applicant is totally reliant on her mother. Mrs HDCZ supports the Applicant with her daily needs, decision making and has oversight over the Applicant’s finances. The Applicant’s father no longer lives with the Applicant and Mrs HDCZ and no longer provides support to his daughter. The Applicant’s younger sister who used to live with the Applicant and Mrs HDCZ has now moved out of the Applicant’s home. The Applicant sees members of her extended family on some occasions[5].
[5] See the statement of participants support approved in the Applicant’s Plan under subsection 33(2) of the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act) for a two-year period commencing on 19 September 2022 and ending before 18 September 2024, the date by which the Chief Executive Officer of the National Disability Insurance Agency must reassess the Applicant’s Plan as required under Division 4 of the NDIS Act. Mr Ramadan tendered a copy of this document at the Interlocutory Hearing held on 13 September 2022. At that hearing, I marked the document as Exhibit ‘A1’.
Mrs HDCZ lodged an application with the Tribunal on 27 March 2021[6] for the Applicant in which she sought a review of an internal review decision made by a reviewer of the National Disability Insurance Agency (the Respondent) on 7 March 2021[7] that varied a decision made by a delegate of the Chief Executive Officer (the CEO) of the Respondent on 1 December 2020 to approve a statement of participant supports (SOPS) in the Applicant’s Plan[8] under subsection 33(2) of the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act).
[6] See T1 of the Tribunal documents (T-documents) the Respondent lodged with the Tribunal on 28 April 2021.
[7] See T3 of the T-documents.
[8] See T14 of the T-documents.
For the purpose of her application to the Tribunal, the Applicant sought the approval of a number of supports Mrs HDCZ argued were reasonable and necessary in order to help her daughter meet her disability support needs and thus should be included in the Applicant’s Plan. They included funding for:
(a)$1,500 for low-cost low risk Assistive Technology;
(b)2x pairs of orthotics and 2x pairs of special shoes to the value of $2,298 in accordance with the quote of John Mamis, podiatrist, dated 29 April 2021;
(c)728 hours per year of personal care assistance;
(d)28 days per year of respite/short term accommodation plus an additional 56 hours per year of personal care assistance;
(e)312 hours per year of 1:1 support to access the community on a Saturday;
(f)624 hours per year of support to participate in a group and/or centre-based activity;
(g)21 hours per week of supports in employment;
(h)Level 3 transport assistance;
(i)52 hours per year of speech therapy;
(j)psychological therapy comprising of 1 hour per fortnight of behaviour support intervention and 2 hours per week of support worker assistance to support the Applicant with social interaction;
(k)2 hours per week of physiotherapy; and
(l)support co-ordination.
Following the provision of further information from the Applicant the majority of the requested supports identified at paragraph [4] were resolved between the parties by way of agreement[9] save and except for the Applicant’s request for funding for psychological therapy (comprising of one hour per fortnight of behaviour support intervention and two hours per week of support worker assistance to support the Applicant with social interaction), and two hours per week of physiotherapy and funding for support co-ordination.
[9] See the Terms of Agreement the parties and their representatives signed on 10 August 2021 and 16 November 2021.
The Applicant’s application for review was taken to be dismissed by the Tribunal on 31 May 2022 without proceeding to review the decision under review after the Tribunal was given notification under subsection 42A(1A) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) to the effect that the application for review was discontinued or withdrawn[10]. The parties were not able to resolve the remaining supports in issue that are identified at paragraph [5] before the Applicant’s application was dismissed.
[10] See the notification Mrs HDCZ sent via email on 24 May 2022 notifying the Tribunal that the Applicant had decided to discontinue her application for review.
PRESENT DISPUTE
On 2 August 2022, after the Applicant’s application for review was dismissed, the Tribunal and the Applicant received an email from the Respondent’s representative, Stephanie Miller (Ms Miller). In her email, Ms Miller informed the Tribunal and the Applicant that she had received instructions from the Respondent to request the leave of the Tribunal to be released from an implied undertaking not to use documents (identified below) they say were given to the Tribunal with an undertaking not to use them for another purpose without the leave of the Tribunal[11]. The Applicant objects to the Respondent’s request for reasons which are set out further below.
[11] See the email the Tribunal received on 2 August 2022 from Stephanie Miller, the Respondent’s representative.
An Interlocutory Hearing (IH) was held on 13 September 2022 to give the parties and their representatives the opportunity to make oral submissions to the Tribunal addressing the question of whether the Tribunal should grant leave to the Respondent to be released from the implied undertaking in respect of the documents that were given to the Tribunal in the course of the proceeding.
Tareq Ramadan (Mr Ramadan), the Applicant’s non-legal representative appeared at the IH in person and made oral submissions to the Tribunal on behalf of the Applicant. Mr Ramadan was assisted at the IH by an Arabic interpreter. Ms Miller appeared at the IH via telephone and made oral submissions to the Tribunal on behalf of the Respondent. Both parties lodged written submissions after the IH[12].
[12] Mr Ramadan lodged written submissions with the Tribunal on 27 September 2022 following the first Interlocutory Hearing. Ms Miller lodged written submissions in reply with the Tribunal on 13 October 2022.
A further IH was held on 19 January 2023 at the request of Mr Ramadan[13]. At the second IH, Mr Ramadan appeared in person and made further oral submissions on behalf of the Applicant. Mr Ramadan was assisted at the second IH by an Arabic interpreter. Miller also appeared at the second IH in person and largely relied on the written submissions that were prepared and lodged on 13 October 2022. After the second IH, the Applicant lodged supplementary written submissions as well as 10 annexures that were attached to those submissions. After receiving the Respondent’s further supplementary written submissions on 2 February 2023, the Respondent advised that they did not intend to lodge any further written submissions with the Tribunal regarding their request to be released from the implied undertaking.
[13] See the email from Mr Ramadan dated 12 December 2022 sent in response to the email my associate sent the parties advising them that the Tribunal would publish its reasons for decision on 31 January 2023.
THE RESPONDENT’S CASE
It is the Respondent’s case that they gave an implied undertaking to the Tribunal in respect of three sets of documents that were given to the Tribunal in the course of the proceeding. The Respondent says that they may want to use the documents to carry out various functions that are available to them under the NDIS Act. This may also include using the documents at future planning meetings when the Chief Executive Officer reassesses the Applicant’s Plans. The Respondent says that there are special circumstances on which the Tribunal should grant the leave they seek.
It was submitted for the Respondent that they gave an implied undertaking to the Tribunal not to use the documents the Applicant provided to the Tribunal and the Respondent on 8 June 2021 under the compulsory processes of the Tribunal pursuant to a direction given on 13 May 2021 under subsection 33(2A)(a) of the AAT Act for any another purpose. The documents the Respondent says the implied undertaking applies to are identified below:
1.The document titled “details of the Applicant’s treating health professionals, including any allied health professionals” identified by the Applicant as 2 in the bundle of documents provided by the Applicant on 8 June 2021.
2.The undated letter titled ‘Physiotherapy’ by Radwan Dannawi, ‘Principal physiotherapist’ identified by the Applicant as H13 in the bundle of documents provided by the Applicant on 8 June 2021.
3.The undated letter titled ‘Speech pathology’ by Fida Hajaj, ‘Principal Snr occupational therapist’, on Fit By Physio letterhead identified by the Applicant as H13 in the bundle of documents provided by the Applicant on 8 June 2021.
4.The letter of Dr Omar Najjarine, podiatrist, dated 12 December 2020 identified by the Applicant as H13 in the bundle of documents provided by the Applicant on 8 June 2021.
5.The undated letter titled ‘Occupational therapy’ by Fida Hajaj, ‘Principal Snr occupational therapist’ on ‘Occupational Therapy Services’ letterhead identified by the Applicant as H13 in the bundle of documents provided by the Applicant on 8 June 2021.
6.The ‘AHP community and community services podiatric therapy functional report’ by John Mamis, podiatrist, dated 24 April 2021 identified by the Applicant as H19 in the bundle of documents provided by the Applicant on 8 June 2021.
7.The ‘Client assessment report’ by Nazan Arabul, provisional psychologist, dated 1 April 2021 identified by the Applicant as H20 in the bundle of documents provided by the Applicant on 8 June 2021.
8.The ‘Occupational therapy functional capacity assessment’ by Sobhi Maaliki, occupational therapist, dated 29 April 2021 identified by the Applicant as H21 in the bundle of documents provided by the Applicant on 8 June 2021.
9.The ‘Physiotherapy assessment report’ by Mahmoud Ayish, physiotherapist, dated 28 March 2021 identified by the Applicant as H22 in the bundle of documents provided by the Applicant on 8 June 2021.
10.The ‘Speech pathology progress & needs report’ by Sarah Sabsabi, speech pathologist, dated 1 April 2021 identified by the Applicant as H23 in the bundle of documents provided by the Applicant on 8 June 2021.
11.The letter of Dr Omar Najjarine, podiatrist, dated 31 March 2021 identified by the Applicant as H24 in the bundle of documents provided by the Applicant on 8 June 2021.
12.The letter of David Yuen, physiotherapist and ergonomist, dated 15 June 2020 identified by the Applicant as H25 in the bundle of documents provided by the Applicant on 8 June 2021.
It was submitted for the Respondent that they gave an implied undertaking to the Tribunal not to the use the further documents the Applicant provided to the Tribunal and the Respondent on 26 August 2021 under the compulsory processes of the Tribunal pursuant to a direction given on 12 August 2021 under subsection 33(2A)(a) of the AAT Act for another purpose. The further documents the Respondent says the implied undertaking applies to are identified below:
1.The ‘AHP community and community services podiatric therapy functional report’ by John Mamis, podiatrist, dated 6 July 2021 identified by the Applicant as H63 in the bundle of documents provided by the Applicant on 26 August 2021.
2.The ‘Psychology assessment report’ by Nazan Arabul, provisional psychologist, and Walid Ahmad, psychologist, dated 12 August 2021 identified by the Applicant as H64 in the bundle of documents provided by the Applicant on 26 August 2021.
3.The ‘Physiotherapy assessment report’ by Mahmoud Ayish, physiotherapist, dated 22 August 2021 identified by the Applicant as H65 in the bundle of documents provided by the Applicant on 26 August 2021.
4.The ‘Speech pathology progress and needs report’ by Sarah Sabsabi, speech pathologist, dated 7 September 2021 identified by the Applicant as H66 in the bundle of documents provided by the Applicant on 26 August 2021.
It was also submitted for the Respondent that they may have given an implied undertaking to the Tribunal not to use the report of Dr Fernando Roldan (Dr Roldan), a Clinical Psychologist, dated 16 December 2021 for another purpose. Over the course of the proceeding, the Respondent retained Dr Roldan to conduct an in-person assessment of the Applicant and, moreover, to provide a written opinion on the Applicant’s psychological and behavioural needs. Also, in regard to whether the Applicant had any therapy needs.
The report of Dr Roldan was provided to the Tribunal and the Applicant by the Respondent on 23 December 2021. The report sets out the opinions of Dr Roldan following his assessment of the Applicant regarding the Applicant’s psychological and behavioural needs and therapy needs. The report was not provided by the Respondent under the compulsory processes of the Tribunal.
It was submitted for the Respondent that although the report of Dr Roldan was not provided to the Tribunal by the Respondent under the compulsory processes of the Tribunal, an implied undertaking applies to this report. This is due to the report referring to information the Respondent says is the subject of the implied undertaking they gave to the Tribunal after receiving the two sets of documents referred to above. In support of this submission, the Respondent relied on the observations of Deputy President Forgie (DP Forgie) in the case of NWCB, ZFND and GXFS and National Disability Insurance Agency[14] (NWCB, ZFND and GXFS).
[14] [2020] AATA 4555 at [27].
It was submitted for the Respondent that their request to be released from an implied undertaking as they say applies to the three sets of documents referred to above is for a proper purpose. Namely, it was submitted for the Respondent that they may want to use the documents abovementioned to carry out their various functions under the NDIS Act. For example, the Respondent argued that the opinions and findings of the Applicant’s various healthcare treaters and those of Dr Roldan may assist both the Applicant and the Respondent at future planning meetings while the CEO of the Respondent is conducting a reassessment of the Applicant’s Plan[15]. It was submitted for the Respondent that the documents may also inform the Respondent’s decision-making functions under sections 99 and 100 of the NDIS Act. It was further submitted for the Respondent that they must have regard to relevant assessments conducted in relation to the participant as part of that process as is required under subsection 33(5) of the NDIS Act.
[15] From 1 July 2022, following the passage of legislative amendments to section 48 of the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act), as introduced by the National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Act 2022 (Cth), the term ‘reassessment’ will replace the term ‘review’ in section 48 of the NDIS Act for the purpose of reassessing a plan. An internal review of decisions at the request of a participant will continue to use the word ‘review’.
It was submitted for the Respondent that special circumstances exist in the present matter for the Tribunal to grant leave to the Respondent to be released from the implied undertaking they gave to the Tribunal in respect of the three sets of documents identified above.
THE APPLICANT'S CASE
It is the Applicant’s case that the Respondent’s request for leave to be released from the implied undertaking they say applies to the three sets of documents identified above has not been made for a proper purpose. It was therefore submitted for the Applicant that the Respondent’s request should be refused for the following reasons:
(i)The Applicant is not pressing for the Respondent to fund psychological support or physiotherapy as a reasonable and necessary support, so the Applicant’s current plan does not contain these services and there is no need for the Respondent to consider documents relating to those supports when the Applicant does not request them, including the report of Dr Roldan.
(ii)No assessment of the Applicant’s Plan is required for those supports the Applicant does not press.
(iii)The Respondent has already agreed to fund many supports based on the evidence that was before the Tribunal.
(iv)The Applicant’s current Plan does not need to be reassessed until 3 September 2024[16].
(v)The Respondent’s reasons for requesting a release from the implied undertaking are mysterious and/or vague and fails to refer to specific functions under the NDIS Act.
(vi)There are no substantial reasons given by the Respondent to be granted leave to be released from the implied undertaking.
(vii)The Respondent intends to use the documents for a collateral or ulterior purpose.
(viii)There are no special circumstances that exist.
(ix)There are no legal proceedings that exist.
(x)The documents are confidential and contain health and personal information of the Applicant.
(xi)There is a public interest immunity.
(xii)The Respondent’s legal representative breached the implied undertaking when they engaged Dr Roldan (who the Applicant claims is not a party to the proceedings) to assess the Applicant who in turn breached the implied undertaking.
[16] This date Mr Ramadan refers to may not be correct. This is because the statement of participants supports approved in the Applicant’s Plan on 19 September 2022 is a two-year Plan that commenced on 19 September 2022 and ends before 18 September 2024. The Respondent must reassess this Plan before 18 September 2023 as is required under Division 4 of the National Disability Insurance Scheme Act 2013 (Cth). See Annexure 4 to the Applicant’s supplementary written submissions dated 2 February 2023.
RELEVANT BACKGROUND
Before I determine the question of whether or not the Tribunal should grant leave to the Respondent to be released from the implied undertaking, they say applies to the three sets of documents identified above, it is necessary that I set out some of the relevant background to this case.
On 1 December 2020[17], following a scheduled review of the Applicant’s previous Plan[18], a delegate of the CEO of the Respondent approved a SOPS in the Applicant’s Plan. This was approved under subsection 33(2) of the NDIS Act for a 12-month period commencing on 1 December 2020 and ending before 1 December 2021. This was the date by which the Respondent was required to reassess the Applicant’s Plan under Division 4 of the NDIS Act[19], as was specified by the reviewer after varying the delegate’s decision.
[17] See T7 of the T-documents. The Tribunal notes that the Respondent also approved a statement of participant supports in the Applicant’s Plan on 4 December 2019 for a 12-month period commencing from 4 December 2019 until 3 December 2020.
[18] See T14 of the T-documents.
[19] Section 48 of the National Disability Insurance Scheme Act 2013 (Cth) sets out the ways in which a participant’s plan can be reassessed.
After receiving notice of the delegate’s decision to approve a SOPS in the Applicant’s Plan, Mrs HDCZ made an internal review request by email dated 21 December 2020[20]. In her email, Mrs HDCZ requested that the Respondent vary the Applicant’s Plan in two respects. Firstly, the request related to the management of the funding for supports under the Applicant’s Plan that the delegate specified in the Applicant’s Plan on 1 December 2020. Mrs HDCZ requested that the SOPS specify the management of the funding of the supports be Plan managed[21]. Secondly, the request related to the approval of a number of supports Mrs HDCZ argued were reasonable and necessary and thus should be included in the Applicant’s Plan to help the Applicant meet her disability support needs.
[20] See T8 of the T-documents.
[21] The provisions relating to the management of the funding for supports in a participant’s plan are set out in section 42 of the National Disability Insurance Scheme Act 2013 (Cth).
On 7 March 2021, after considering Mrs HDCZ’s request for an internal review, decided under subsection 100(6)(b) of the NDIS Act, to vary the delegate’s decision.
On 8 March 2021, following the reviewer’s decision to vary the delegate’s decision, a new SOPS in the Applicant’s Plan was approved by the Respondent under subsection 33(2) of the NDIS Act for a nine-month period commencing on 7 March 2021 and ending before 6 December 2021. This being the date by which the Respondent was required to reassess that Plan under Division 4 of the NDIS Act[22].
[22] See T15 of the T-documents.
On 27 March 2021, Mrs HDCZ lodged an application for review of a decision with the Tribunal on behalf of her daughter seeking that the Tribunal review the internal review decision made by the reviewer on 7 March 2021[23].
[23] See T3 of the T-documents.
On 13 May 2021, after the parties and their representatives attended a Case Conference, the Tribunal gave directions under subsection 33(2A)(a) of the AAT Act that required the Applicant to provide further information. The direction required the Applicant to provide to the Tribunal and the Respondent all reports, records, and any other documents on which the Applicant intended to rely on in respect of the Tribunal proceeding.
On 8 June 2021, the Applicant provided the Tribunal and the Respondent with the documents identified at paragraph [12] in accordance with the directions given on 13 May 2021.
28.On 12 August 2021, after the parties and their representatives attended a further Case Conference, the Tribunal gave further directions under subsection 33(2A)(a) of the AAT Act that required the Applicant to provide further information. The direction required the Applicant to provide to the Tribunal and the Respondent on or before 26 August 2021 all medical reports, records and any other additional information and documents on which the Applicant intends to rely on in relation to the proceeding or if there is nothing further to lodge, advise the Tribunal and the Respondent in writing that the Applicant will not be lodging any further evidence in relation to this proceeding.
29.On 18 August 2021, Deputy President Constance (DP Constance) remitted the matter to the CEO of the Respondent for further consideration under section 42D of the AAT Act on or before 1 September 2021. This being at the request of the parties so that the Respondent could recommend to the delegate to approve a SOPS in the Applicant’s Plan and include the reasonable and necessary supports that had been agreed between the parties on 10 August 2021. The Respondent approved another SOPS in the Applicant’s Plan. This Plan included funding for the many supports the parties agreed were reasonable and necessary.
On 26 August 2021, the Applicant provided the Tribunal and the Respondent with the documents identified at paragraph [13] in accordance with the directions given on 12 August 2021.
31.At a Directions Hearing held by telephone on 27 September 2021, Senior Member Kelly (SM Kelly) directed that the Applicant attend an in-person assessment with Dr Roldan on 5 October 2021 at 1:00pm in his Sydney rooms. This assessment was arranged by the Respondent so that Dr Roldan could provide a written opinion to the Tribunal on the Applicant’s psychological behavioural presentation and what, if any, her therapy needs may be.
32.On 30 September 2021, Ms Miller sent a letter of instruction via email to Dr Roldan together with copies of the information the Applicant provided under compulsion to the Tribunal on 8 June 2021 and 12 August 2021[24].
[24] At pages 3 to 5 of the letter of instruction, under the heading Enclosures, Ms Miller identifies the numerous documents that the Applicant provided to the Tribunal on 8 June 2021 and 26 August 2021.
33.On 5 October 2021, Dr Roldan conducted an in-person assessment of the Applicant in accordance with the direction given by SM Kelly on 27 September 2021.
34.At a further Directions Hearing held by telephone on 11 October 2021, Deputy President Rayment (DP Rayment) made an order under subsection 35(3) of the AAT Act. DP Rayment directed that for the purpose of the proceeding, the Applicant’s name was to be replaced with the pseudonym ‘HDCZ’. DP Rayment directed that the publication of the Applicant’s name, address or any other information that may tend to reveal the identity of the Applicant must not be disclosed to any person other than the parties, their representatives and any other person directly involved with the preparation and conduct of the Applicant’s case. This included any person whom either party to the proceeding approached for the purpose of providing evidence in relation to the proceeding or proposes to call as a witness. It also included members and staff of the Tribunal, including any person performing services for the Tribunal, acting in the course of their duties.
35.On 23 November 2021, DP Constance made a further order to remit the matter to the CEO of the Respondent for further consideration under section 42D of the AAT Act on or before 7 December 2021. This being at the further request of the parties so that the Respondent could recommend to the delegate that they approve a SOPS in the Applicant’s Plan to include as a reasonable and necessary support funding for one hour per week (52 hours) of speech pathology therapy as agreed between the parties on 16 November 2021. The Respondent approved another SOPS in the Applicant’s Plan. This Plan included funding for speech pathology therapy the parties agreed was reasonable and necessary.
36.On 23 December 2021, the Respondent provided the Tribunal and the Applicant with a copy of the report of Dr Roldan.
PRINCIPLES
There is a well-established common law doctrine that imposes an obligation on parties to Court or Tribunal proceedings who, in the course of that proceeding, receive documents or information from the other party under the compulsory processes of the Court or Tribunal to only use those documents or information for the purpose for which they were provided and not for a ‘collateral or ulterior purpose’[25]. This is known as the implied undertaking or the Harman principle the House of Lords established in the decision of Harman v Secretary of State for Home Department[26].
[25] Harman v Secretary of State for Home Department [1983] 1 AC 280 at 302, per Lord Diplock; La Mancha Africa S.A.R.L. v Commonwealth of Taxation [2021] FCA 1564 at [2], per Davies J.
[26] [1983] 1 AC 280.
The expression ‘collateral or an ulterior purpose’ was considered by Ryan J in the case of Mann v Medical Defence Union Ltd[27]. In that case, his Honour said, ‘usually, if not invariably, the use of documents disclosed in one action for the purpose of another action will be a collateral or ulterior purpose, even where the parties to both actions are identical, and the causes of action are identical’[28].
[27] [I997] 45 FCA (unreported, Ryan J, 7 February 1997).
[28] Ibid at [7].
In Harman, Lord Diplock, after referring to the observations of Jenkins J in Alterskye v. Scott[29] said in his judgment at 302 that he took the ‘expression ‘collateral or ulterior purpose’ to indicate some other purpose that is different from that which was the only reason why, under a procedure designed to achieve justice in civil actions, she was accorded the advantage of having in her possession copies of other people’s documents which she would not otherwise have had’.
[29] [1948] 1 All ER 469.
The scope of the implied undertaking was considered by the High Court in Hearne v Street[30] (Hearne). In Hearne, Hayne, Heydon and Crennan JJ described the implied undertaking as a substantive obligation. Their Honours said that 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[31].
[30] (2008) 235 CLR 125.
[31] See Hearne at [96]. See also the observations of Gleeson CJ at [3] where his Honour stated that the implied undertaking is better understood as a substantive obligation.
If the document is received in evidence or read aloud in open court, the implied undertaking will no longer apply[32].
[32] See Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10 at 32-33; Plate Glass Holdings Pty Ltd v Fraser Gordon Investments Pty Ltd [2012] FCA 1487 at [26], per Flick J.
As the implied undertaking is to the Court or the Tribunal, only the Court or the Tribunal can release a party from their obligations in respect of the document[33].
[33] Crest Homes Plc v Marks [1987] AC 829 at 854; Holpitt Pty Ltd v Varimu Pty Ltd (1991) 29 FCR 576.
Therefore, if a party to a proceeding wants to use the information for another purpose, they will need to request the leave of the Court or the Tribunal.
The party who is seeking to be released from the implied undertaking must demonstrate special circumstances. In Springfield Nominees Pty Ltd v Bridgelands Securities Ltd[34] (Springfield), Wilcox J considered the expression special circumstances. At 225, his Honour said:
[34] (1992) 38 FCR 217.
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. But plainly they include the nature of the document, the circumstances under which it 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 into the hands of the applicant for leave and, perhaps most important of all, the likely contribution of the document to achieving justice in the second proceeding.
In Liberty Funding Pty Ltd v Phoenix Capital Ltd[35] (Liberty Funding), the Full Federal Court comprising Branson, Sundberg and Allsop JJ also considered the expression special circumstances. In considering the expression, their Honours endorsed the decision in Springfield. At [31] of the judgment, their Honours said:
[35] [2005] FCAFC 3.
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 Administrative Appeals Tribunal: General Practice Direction[36] (the GPD) contains a Chapter on implied undertakings not to use documents for another purpose[37]. This Part applies to applications in any Division of the Tribunal other than the Migration and Refugee Division[38].
[36] See in particular Part 5 of the Administrative Appeals Tribunal: General Practice Direction given by the President under section 18B of the Administrative Appeals Tribunal Act 1975 (Cth) on 28 February 2019.
[37] See Part 5 of the Administrative Appeals Tribunal: General Practice Direction, dated 28 February 2019.
[38] See Part 5.1 of the Administrative Appeals Tribunal: General Practice Direction, dated 28 February 2019.
Part 5.2 of the GPD provides that if the Applicant or the Respondent in a proceeding have obtained a document provided under compulsion in an application before the Tribunal, the Respondent, and any person to whom the document is given, by implication, undertakes to the Tribunal that the document will not be used for any purpose other than the purpose for which it was given to the Tribunal unless:
(a)The document was received in evidence by the Tribunal 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;
(b)The Tribunal gives an Applicant or the Respondent permission to use the document for another purpose.
Part 5.3 of the GPD lists the type of documents that will be subject to the implied undertaking. The types of documents include:
(a)documents lodged under section 37 or 38AA of the AAT Act;
(b)documents lodged pursuant to a direction given by the Tribunal (for example, expert reports or witness statements); and
(c)documents produced in response to a summons issued by the Tribunal.
The implied undertaking or the obligation continues to apply 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 Tribunal were a court of record, constitute a contempt of court[39].
[39] See Part 5.4 of the Administrative Appeals Tribunal: General Practice Direction, dated 28 February 2019.
Part 5.6 of the GPD sets out the procedure the Tribunal expects the parties to a proceeding to follow when a party wants to use a document(s) for another purpose, including a document that was given to the Tribunal in an application that has been finalised, the Applicant or the Respondent must apply to the Tribunal for leave to be released from the implied undertaking.
The GPD provides that if a party wants to use the documents for another purpose, they must request the leave of the Tribunal to be released from the implied undertaking by making the request in accordance with a number of requirements as set out in Parts 5.6 and 5.7 of the GPD. The request must be made in writing. The request must specify with particularity the documents in relation to which is release sought. The request must tell the Tribunal in clear terms why the requesting party wants to be released from the implied undertaking and who will use the documents. Finally, if it is possible, the request must specify whether or not the person to whom the documents relate consents to the release from the implied undertaking[40]. Unless a party believes that it is unnecessary or inappropriate, a copy of the request must be sent to the other party or parties to the application in which the documents were originally provided[41].
[40] See Part 5.6(a) to (d) of the Administrative Appeals Tribunal: General Practice Direction, dated 28 February 2019.
[41] See Part 5.7of the Administrative Appeals Tribunal: General Practice Direction, dated 28 February 2019.
CONSIDERATION
The issue for the Tribunal to determine is whether it should grant leave to the Respondent to be released from an implied undertaking they say applies to the three sets of documents identified above. The Tribunal will only release a party from an implied undertaking if there are special circumstances. Before I deal with the immediate issue, I propose to first consider whether the implied undertaking applies to the Respondent in respect of the documents identified above.
The documents that were provided to the Tribunal and the Respondent and their legal representative on 8 June 2021 and 26 August 2021 were provided by the Applicant under the compulsory processes of the Tribunal. As the Respondent received those documents from the Applicant under compulsion, they have an obligation not to use the documents for another purpose without the leave of the Tribunal. The scope of the obligation also extends to the Respondent’s legal representative[42]. The documents were not received in evidence or read aloud in open court. As the documents were not received in evidence or read aloud in open court, the obligation not to use the documents does not end. For these reasons, there is an implied undertaking that applies to the Respondent not to use the documents they received on 8 June 2021 and 26 August 2021 for another purpose without the leave of the Tribunal.
[42] Harman at 302, per Lord Diplock.
In the course of the proceeding, the Applicant was medically assessed by Dr Roldan to assist the Tribunal to determine whether the Applicant’s request for psychological and behavioural supports were reasonable and necessary. The Applicant was directed by the Tribunal to attend the assessment with Dr Roldan on 5 October 2021. The report was provided to the Tribunal and to the Applicant by the Respondent via email on 23 December 2021[43]. The Respondent did not provide the report to the Tribunal and the Applicant under the compulsory processes of the Tribunal.
[43] The Respondent also attached to their email of 23 December 2021 a copy of their letter of instruction Ms Miller sent to Dr Roldan on 30 September 2021.
The Tribunal notes that Dr Roldan makes particular references in his report to the documents that Mrs HDCZ provided to the Tribunal and the Respondent on 8 June 2021 and 26 August 2021. Having regard to the observations of DP Forgie in the case of NWCB, ZFND and GXFS[44], the Tribunal is of the view that the implied undertaking also applies to the Respondent and their legal representative in respect of the report of Dr Roldan. The Tribunal notes that the report was not received in evidence or read aloud in open court. As the report was not received in evidence or read aloud in open court, the obligation of the Respondent not to use it for another purpose does not end. For these reasons, there is an implied undertaking that applies to the Respondent not to use the report of Dr Roldan for another purpose without the leave of the Tribunal.
[44] NWCB, ZFND and GXFS at [27].
Returning to the question of whether leave should be granted to the Respondent to be released from the implied undertaking as it applies to the documents identified above on the basis of there being special circumstances, the Tribunal notes the decision of DP Rayment in the case of LMFP and Comcare (Compensation)[45] (LMFP). In LMFP, DP Rayment considered a request by Comcare to be released from an implied undertaking in respect of documents that had been produced to the Tribunal under Summons so that Comcare could use those documents for case management purposes in future decisions regarding the Applicant’s entitlements to compensation he may have had under the Safety, Rehabilitation and Compensation Act 1988 (Cth)[46] for the injuries alleged in applications for review made by the Applicant to the Tribunal. Referring to the General Practice Direction that existed at the time and the decision of the Full Federal Court in Liberty Funding, DP Rayment was satisfied that there were special circumstances for which leave should be granted to Comcare to be released from the implied undertaking. At [3] of his decision, DP Rayment said:
[45] [2017] AATA 1512.
[46] See the Safety, Rehabilitation and Compensation Act 1988 (Cth).
It appears to me that this case is a proper one for the grant of leave for three reasons. First, the documents are sought by the Respondent for the proper purpose of claims management in pursuance of its statutory duties. Secondly, the documents would be available to be the subject of summonses to produce in due course in the event that Comcare makes a decision adverse to the claimant in future and the Applicant seeks review of those decisions. Thirdly, the Applicant when making the various claims made in the pending proceedings, authorised the Respondent to collect and retain information in handling the claims and it is likely that Comcare would have been able to obtain the documents produced under subpoena from the producing parties. The Applicant gave authority and consent to Comcare to collect “[their] personal information” from “[their] health professional or other health institution” “for the purposes of determining and managing [their] compensation claim and/or assessing [their] suitability to undertake a rehabilitation program and/or to assist Comcare in any actions authorized under the SRC Act”.
57.The Tribunal is of the view that the three reasons given by DP Rayment in LMFP to release Comcare from their obligations in respect of the summonsed material are equally appropriate to apply to the present case. In the present case, the Respondent intends to use the documents for the proper purpose of assessing what reasonable and necessary supports the Applicant may be entitled to receive funded under the NDIS Act. The documents could be obtained again should the Applicant bring another application to the Tribunal for review, or alternatively, the Respondent may obtain the documents by making a request under section 36 of the NDIS Act.
58.Therefore, having regard to what DP Rayment said in LMFP and what the Full Federal Court said in Liberty Funding, the Tribunal is of the view that there are special circumstances in the present case and thus on that basis leave should be granted to release the Respondent from the implied undertaking.
I now propose to deal with the other matters that Mr Ramadan submits are relevant to the Respondent’s request.
Mr Ramadan has submitted that the Tribunal should refuse the Respondent’s request because it is ‘mysterious’ and/or ‘vague’ and fails to give substantial reasons as to why they seek to be released from the implied undertaking. The Tribunal does not accept these submissions.
The request made by the Respondent on 2 August 2022 has been made in accordance with the procedure set out under Part 5 of the GPD[47]. This is the procedure that the Tribunal expects parties to an application before any Division of the Tribunal other than the Migration and Refugee Division to follow if they may want to use documents for another purpose, including a document(s) that was given to an application that has been finalised[48] as can be seen in the present case.
[47] See Administrative Appeals Tribunal: General Practice Direction given by the President under section 18B of the Administrative Appeals Tribunal Act 1975 (Cth) on 28 February 2019.
[48] See Part 5.6 of the Administrative Appeals Tribunal: General Practice Direction, dated 28 February 2019.
The Respondent’s request specified with particularity all of the documents the Respondent received from the Applicant under the compulsory processes of the Tribunal on 8 June 2021 and 26 August 2021 that they considered to be the subject of the implied undertaking. The request gives clear reasons why the Respondent seeks to be released from the implied undertaking and who will use the documents if their request is granted. These are the matters that a party must provide when making a request under Part 5.6 of the GPD.
The documents identify what the Applicant’s numerous disabilities are, the substantive problems which her disabilities create. The documents contain details of the treatment models used by her various healthcare providers and provide details about whether the Applicant has been progressing or not. Furthermore, those who have and continue to provide treatment to the Applicant have made recommendations regarding what future supports are reasonable and necessary to help the Applicant reach her therapeutic goals and to help her meet her disability support needs.
The Tribunal is of the view that the documents are relevant to the preparation of future Plans in that they will provide an insight into understanding what are reasonable and necessary supports within the meaning of section 34 of the NDIS Act and particularly in identifying the supports that will assist her to pursue her objectives and aspirations[49].
[49] ZFND at [37] - [38].
The Tribunal is of the view that as the Tribunal is part of the executive arm of government, it is also relevant to consider whether the documents would contribute to achieving a correct or preferable decision at the primary level and not merely in merits review proceedings in the Tribunal or that it would contribute to achieving justice in court proceedings. In any event, relevant considerations must be identified in each case and assessed and weighed in the context of each[50].
[50] NWCB, ZFND and GXFS at [16].
The Tribunal does not accept the submission that there is a ‘public interest immunity’. The Tribunal is of the view that this submission is also misconceived. The Tribunal considers it would be contrary to the interests of good public administration if the Respondent did not have all available material before them in making decisions to minimise the need for administrative review by the Tribunal[51].
[51] Cook and National Disability Insurance Agency [2021] AATA 1111 at [21].
The documents, moreover, were not provided in Court proceedings between litigious parties who are unlikely to maintain an ongoing relationship. Indeed, with regard to the present case, it is noted that the Applicant is a participant of the NDIS and based on the permanence of her impairments, it is likely that the Applicant will require support under the NDIS for her lifetime and thus will have an ongoing relationship with the Respondent.
The Tribunal is of the view that the documents are likely to assist both the Applicant and the Respondent at future planning meetings. In particular, the documents are likely to assist the Applicant and the Respondent when the CEO of the Respondent conducts a reassessment of the Applicant’s Plans under section 48 of the NDIS Act to determine the reasonable and necessary supports that should be approved by the Respondent to meet the Applicant’s disability supports needs and goals.
Although the Respondent has the power under section 36 of the NDIS Act to request a participant or another person to provide further information that is reasonably necessary for the purpose of preparing and approving a participant’s plan, the Tribunal sees no reasonable basis why the Respondent should be required to take the time and incur the expense to obtain, by other means, documents which are already in their possession[52]. If the Tribunal refused to grant the Respondent the leave they seek, this could result in the Applicant having to undergo further medical assessments and examinations and thus lead to delays in the Applicant actually receiving additional or alternative reasonable and necessary supports.
[52] See Cook at [19].
The Tribunal notes that the documents produced by the Applicant resulted in the parties reaching an agreement on many of the issues that were in dispute. The result of the agreement reached between the parties was for the inclusion of many supports that the Respondent accepted were reasonable and necessary for the purpose of section 34 of the NDIS Act. The Tribunal takes the view that if leave is not granted to the Respondent, the Applicant may be at a significant disadvantage at future planning meetings for example, when a reassessment of the Applicant’s Plans is being conducted.
The Tribunal does not accept the submission that the Tribunal should refuse the Respondent leave because the Applicant’s Plan is not due to be reassessed until September 2024. The Tribunal also does not accept the submission that the Tribunal should refuse leave to the Respondent because the Applicant is not and has not, at least since June 2022, pressed the Respondent for psychological therapy and physiotherapy support. These submissions are misconceived. This is because section 48 of the NDIS Act operates on the basis that the Respondent has the power to facilitate a reassessment of a participant’s plan at any stage to determine whether a participant’s plan needs to be varied to include additional or alternative supports to ensure that their disability support needs are being met.
The Tribunal does not accept the submission that the Respondent’s intended use of the documents has an ulterior or collateral purpose. This is because the Respondent’s request suggests that they understand the legal principles and their obligations not to use the documents for ulterior or collateral purposes, and only for the specific purpose that the Tribunal is releasing the Respondent from the implied undertaking. Moreover, the Respondent’s intended use of the documents is connected to the issues that were before the Tribunal in the proceeding.
Mr Ramadan submits for the Applicant that the Respondent should not be released from the implied undertaking because there are no legal proceedings that exist. The Tribunal considers this submission to also be misconceived because the test of special circumstances as identified by the authorities above, does not require there to be other legal proceedings because parties can be released from the implied undertaking for non-litigious purposes.
Mr Ramadan submits for the Applicant that the Respondent should not be released from the implied undertaking because many of the supports in issue in the proceeding were resolved. The Tribunal considers this submission to be irrelevant as the present question relates to whether there are special circumstances on which the Tribunal should grant the Respondent’s request.
The Tribunal has had regard to the Applicant’s submission that the Respondent’s request to be released from the implied undertaking failed to identify the specific functions that the Respondent would exercise under the NDIS Act. The Tribunal is of the view that the Respondent has indeed identified a specific function under the NDIS Act in which they may use the documents for. The function identified by the Respondent relates to their decision-making powers under the NDIS Act when conducting future reassessments of the Applicant’s Plans.
The Tribunal accepts that many of the documents identified above contain personal and medical information, which is sensitive. However, the Tribunal notes that this information was voluntarily provided to the Tribunal and to the Respondent by the Applicant in the course of the proceeding to determine whether the requested supports were reasonable and necessary supports under the NDIS Act. The Tribunal notes that the Respondent and their legal representative have already viewed these documents in order to resolve the many issues that were in dispute.
The Tribunal understands that Mr Ramadan is alleging that Ms Miller, acting on behalf of the Respondent, breached the implied undertaking on 30 September 2021 when she provided the evidence that the Applicant provided to the Tribunal on 8 June 2021 and 26 August 2021. The Tribunal also understands that Mr Ramadan is alleging that Dr Roldan also breached the implied undertaking in respect of the documents the Applicant provided on 8 June 2021 and 26 August 2021. The Tribunal does not accept this submission because the documents Ms Miller gave to Dr Roldan on 30 September 2021 were not provided for purposes other than the Tribunal proceeding.
For the reasons outlined above, the Tribunal grants leave to the Respondent to be released from the implied undertaking as it applies to the documents identified at pages 1 to 4 of this Decision.
DECISION
Leave is granted to the Chief Executive Officer of The National Disability Insurance Agency to be released from the implied undertaking under Part 5 of the Administrative Appeal Tribunal: General Practice Direction given under section 18B of the Administrative Appeals Tribunal Act 1975 (Cth) in respect of the documents identified at pages 1 to 4 of this decision so that they may use the documents at future planning meetings for the purpose of conducting reassessments of the Applicant’s Plan to determine reasonable and necessary supports that will be funded under the National Disability Insurance Scheme for the purpose of section 34 of the National Disability Insurance Scheme Act 2013 (Cth).
I certify that the preceding 79 (seventy-nine) paragraphs are a true copy of the reasons for the decision herein of Member P Smith
..................................[SGD]......................................
Associate
Dated: 31 March 2023
Date of hearing: 19 January 2023 Date final submissions received: 2 February 2023 Advocate for the Applicant: Mr T Ramadan Solicitors for the Respondent: Ms S Miller, Sparke Helmore Lawyers
0
11
0