JLXY and National Disability Insurance Agency
[2021] AATA 144
•2 February 2021
JLXY and National Disability Insurance Agency [2021] AATA 144 (2 February 2021)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2018/6785
Re:JLXY
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Deputy President B W Rayment OAM QC
Date:2 February 2021
Place:Sydney
The respondent’s application for a release from the implied undertaking is dismissed.
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Deputy President B W Rayment OAM QC
CATCHWORDS
PRACTICE AND PROCEDURE – application for release from implied undertaking – where applicant had withdrawn from proceedings – where utility of documents not presently known – where application should be considered when utility of evidence can be determined more precisely – application dismissed
LEGISLATION
Administrative Appeals Tribunal Act 1975 s 42A(1B)
CASES
Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3; (2005) 218 ALR 213
LMFP and Comcare [2017] AATA 1512
Newey and Comcare [2019] AATA 1772
REASONS FOR DECISION
Deputy President B W Rayment OAM QC
2 February 2021
The respondent applies for the release of its implied undertaking in relation to a number of documents filed in these proceedings. The proceedings were heard in private and the applicant has a pseudonym as she is a child.
The applicant withdrew the proceedings in writing and in accordance with s 42A(1B) of the Administrative Appeals Tribunal Act 1975 the Tribunal is taken to have dismissed the application for review without proceeding to review the decision.
The respondent accepts that the documents that are the subject of their present application were produced under compulsion so that an implied undertaking is engaged. The consequence is that the release of the undertaking requires an exercise of discretion by the Tribunal in its favour. The undertaking is not to be released by the Tribunal unless special circumstances exist.
A convenient summary of the general principles governing the present application is to be found in the reasons of the Full Court of the Federal Court in Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3; (2005) 218 ALR 213 at [31]. The Court there said:
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 [sic] the hands of the applicant; and
•most importantly of all, the likely contribution of the document to achieving justice in the other proceeding.
The parents of the applicant, acting on her behalf, were represented by the Legal Aid Commission of New South Wales at certain times in the review but are not presently represented. They oppose the respondent’s present application on various grounds. The parents were the authors of their own statements but are not the authors of the expert reports filed on their behalf. Whether they, or the applicant, may suffer prejudice as a result of the release of the implied undertaking in relation to their own statements is not the subject of submissions made by them to date.
Expert reports filed in completed proceedings are occasionally made the subject of a release of the implied undertaking. See for example LMFP and Comcare [2017] AATA 1512. More limited orders have been made in other cases. For example, Deputy President Forgie made the following order in Newey and Comcare [2019] AATA 1772:
(1)in so far as the reports of Dr Brazenor and Dr Hundertmark refer to, and/or are based on, information from documents or material produced in response to a summons issued in these proceedings:
(a)they are subject to an implied undertaking; and
(b)the respondent:
(i) may use them in its claims management area in relation to resolving the applicant’s claim for compensation under s 16 of the Safety, Rehabilitation and Compensation Act 1988 in respect of pain management and remedial therapy/massage in relation to “post-concussion syndrome, sprain of right shoulder/upper arm and right wrist, an aggravation of tinnitus, post-traumatic stress disorder and an adjustment disorder with depressed mood”; and
(ii) may not use them for any other purpose without first seeking, and obtaining, release from, or modification of, the implied undertaking.
(2)subject to paragraph (1), the respondent may otherwise use the reports of Dr Brazenor and Dr Hundertmark in the management of claims for compensation by the applicant under s 54 of the Safety, Rehabilitation and Compensation Act 1988.
The parents intend to bring other proceedings in the Tribunal if they cannot resolve issues with the respondent prior to bringing such proceedings. One of their objects is to seek a Safe Surround Bed for their daughter. An expert witness called before the Tribunal is apparently not to be relied upon in their fresh application to the respondent or the forthcoming proceedings, and the applicant’s parent state their intention to obtain a comprehensive report, apparently from another witness or witnesses interstate.
The cross-examination of one of the applicant’s experts by Ms Graycar, who appeared for the respondent in the substantive hearing of this matter, was incomplete when the proceedings were withdrawn. Whether that expert’s report will be of assistance to the respondent or to this Tribunal, is not readily apparent at this stage. The attitude of the report’s author to its release for use outside of these proceedings is not known. Other expert evidence filed, and the subject of the present application, may be more relevant in a future application to the respondent or in this Tribunal, although the applicant’s parents submit that some of them are now outdated and, in effect, could be misleading.
One of the main differences between the submissions of the parties on the present application is as to the utility of the evidence in question to events and circumstances which have not yet occurred.
It is better, in my opinion, that the application for the release of the implied undertaking be considered when the utility, if any, of the lay and expert evidence given in the substantive proceedings can be determined more precisely.
For the present, the application is dismissed, and may be renewed after the proposed further application to the Respondent or to this Tribunal has been made, and when the evidence relied upon by the parents is known.
I certify that the preceding 11 (eleven) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment OAM QC
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Associate
Dated: 2 February 2021
Date(s) of hearing: On the papers Date final submissions received: 23 December 2020 Applicant: JLXY by her father and mother Solicitors for the Respondent: Sparke Helmore Lawyers
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