KATHERINE VON STIEGLITZ and COMCARE
[2012] AATA 217
•13 April 2012
[2012] AATA 217
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/0675
Re
KATHERINE VON STIEGLITZ
APPLICANT
And
COMCARE
RESPONDENT
DECISION
Tribunal Mr S. Webb, Member
Date 13 April 2012 Place Canberra Comcare is to lodge documents under section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) on or before 20 April 2012.
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Mr S. Webb, Member
Catchwords
PRACTICE AND PROCEDURE – extension of time to lodge documents – all relevant documents to be lodged – documents from previous proceedings – application for release from implied undertaking of confidentiality – application not sufficient – extension of time granted
Legislation
Administrative Appeals Tribunal Act 1975, s 37
Safety, Rehabilitation and Compensation Act 1988, s 5A
Cases
Australian Prudential Regulation Authority v VBN and Ors (2005) 88 ALD 403
Re P J Beaconsfield Gold NL and Australian Securities Commission; Otter Gold NL and Anor (1998) 54 ALD 109
Re SAN and Military Rehabilitation and Compensation Commission [2008] AATA 237
Springfield Nominees Pty Ltd and Ors v Bridgelands Securities Ltd and Ors (1992) 38 FCR 217
REASONS FOR DECISION
Mr S. Webb, Member
13 April 2012
Katherine Von Stieglitz applied for review of Comcare’s decision to reject her claim for compensation in respect of an injury. Documents were required to be lodged by the decision-maker under s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) by 21 March 2012. This did not occur.
On 23 March 2012 the Tribunal received a letter from Dibbs Barker, legal representative for Comcare, in which it was said that instructions to represent Comcare had been received on that day. Furthermore, the letter set out two requests for orders: “allowing the parties to rely on T-documents in application 2008/5018 in the present application” and “that Supplementary T-documents be filed and served by 5 April 2012”.
Presently, it is these requests that must be dealt with.
Section 37 documents
The first thing to say is that Comcare failed within the allotted time to comply with its obligation under s 37(1). Under that section the person who made the decision that is the subject of the application for review must lodge a statement setting out reasons for the decision and “every other document or part of a document that is in the person’s possession or under his or her control that is relevant to the review”. If there was cause for delay in the compilation and lodgement of such documents by Comcare, it would be reasonable to expect an application to be made for an extension of time prior to the due date. But this did not occur.
Today I heard the explanations provided on Comcare’s behalf by Mr Patrick Dennien, a solicitor employed by Dibbs Barker.
It appears that on or about 23 March 2012 someone in Comcare decided that rather than lodging the documents in Ms Von Stieglitz’s file to which Mr Andrew Schofield (the Comcare delegate who made the reviewable decision) expressly referred, as required under s 37(1), documents from a previous proceeding in the Tribunal in 2008 should also be included. It was apparently for this purpose an extension of time to 5 April 2012 was sought and an application made for release from the implied undertaking of confidentiality in respect of those documents. This, it was said, “should also save time and expense”.
Ms Von Stieglitz opposed the grant of an extension of time.
Section 37(1) is clear in its terms –
Decision‑maker must lodge statement of reasons and relevant documents
37(1)Subject to this section, a person who has made a decision that is the subject of an application for a review by the Tribunal must, within 28 days after receiving notice of the application (or within such further period as the Tribunal allows), lodge with the Tribunal 2 copies of:
(a)a statement setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision; and
(b)every other document or part of a document that is in the person’s possession or under the person’s control and is relevant to the review of the decision by the Tribunal.
This section is to be read in context, particularly with reference to s 37(1AE) and s 37(2). The scope of s 37(1)(b) is governed by an objective test of relevance – all other documents in the possession of the decision-maker or that are under his or her control and that are relevant to the review must be lodged and copies must be provided to other parties to the review. The issue of relevance is to be determined with regard to the role of the Tribunal, standing in the shoes of the person who made the decision under review, to make the correct or preferable decision. For that purpose, careful regard must be had to the specific matters to be decided by the Tribunal.
In order to achieve compliance with s 37(1), it is necessary for Comcare to identify all documents in its possession or under its control that are relevant to the review. In the usual course, it may be expected that Comcare would identify all relevant documents within its possession in the course of determining a claim for compensation. At least, this would be expected to occur on reconsideration of a primary determination in answer to a claim.
In the present application, Mr Schofield expressly refers to the documents to which he had regard, being the contents of Ms Von Stieglitz’s file. Clearly, if the documents to which Mr Schofield had regard when making the decision that is presently the subject of review are relevant, the documents must be lodged under s 37(1). There would be no difficulty identifying and lodging such documents. This should have occurred within 28 days following Comcare’s receipt of notice, on or before 21 March 2012.
On 23 March 2012 Comcare requested an extension to time and release from the implied undertaking of confidentiality in respect of additional documents from earlier proceedings involving Ms Von Stieglitz. It is not clear to me why this was necessary when, presently, it is not established that the additional documents are not contained in the file to which Mr Schofield had regard; nor is it established that the additional documents are relevant to the specific matters to be decided by the Tribunal under the present application. Mr Dennien was unable to assist me on this point as he was not aware of the content of the file to which Mr Schofield had regard or the additional documents from the previous proceedings. This is disappointing. In the circumstances, one might expect prompt attention to have been given to this issue after 23 March 2012 and in preparation for the directions hearing today.
There is another difficulty. To my mind Comcare conflated two distinct processes and this has resulted in delay, expense and the vacation of a preliminary conference. The first process is directed to the lodgement within the allotted time of the documents required under s 37(1). The second process is directed to the release of the implied undertaking in respect of documents in Comcare’s possession from previous proceedings involving Ms Von Stieglitz.
Comcare asserts that “the facts of the present application (2012/0675) overlap with the facts of the previous application (2008/5018)”. That may be so, but it does not follow that documents from the previous proceedings must be lodged under s 37; that will only be required if they are relevant to the specific issue to be decided by the Tribunal under the present application for review. If facts previously found by the Tribunal are relevant to the matters to be decided under the present application, and no fresh evidence or change in law or circumstance exists to affect those findings, the application may proceed on the facts as found. These are relevant matters to consider when assessing the issues to be decided by the Tribunal and the documents that are objectively relevant to those issues.
The statutory obligations under s 37(1) are clear. Comcare must lodge a statement setting out the findings, evidence and reasons for its decision for the purposes of s 37(1)(a) and all of the relevant documents in its possession or under its control for the purposes of s 37(1)(b) within 28 days of notice. This would include relevant documents on Ms Von Stieglitz’s file and should have been done by 21 March 2012.
In the event that other documents come to light or are brought into existence, the Tribunal may require these to be lodged under s 37(2), if it forms the requisite opinion as to relevance. As Ryan J observed in Australian Prudential Regulation Authority v VBN and Ors[1] the Tribunal will not be apprised of the content of the presumptive documents when forming the opinion as to relevance.[2] Of course, this presupposes that the Tribunal has sufficient information concerning the presumptive documents to form the necessary opinion in respect of relevance to exercise power under s 37(2). It must be said at this point that, in the usual course, documents discovered or generated in the course of proceedings may be brought forward and relied upon by a party without any involvement of s 37, or the necessity of exercising the Tribunal’s power under s 37(2). Commonly, it is in this context of investigation and discovery that an application for release from the implied undertaking of confidentiality may be made.
[1] (2005) 88 ALD 403.
[2] Ibid. at 413.
If Ms Von Stieglitz is concerned about issues of confidentiality in respect of any document lodged under s 37, she can make an application for confidentiality orders under s 35(2). In the event that she makes an application of that kind, it will be decided on the merits at the time. If she is concerned about the relevance of any particular document or part of a document thus lodged, the parties will be heard and the issue decided at a hearing.
Having heard the explanations for delay and the reasons underlying the application for an extension of time, I will extend the time permitted for Comcare to lodge documents under s 37 to 20 April 2012, and so order.
Release from implied undertaking of confidentiality
As to the issue of release from the implied undertaking of confidentiality, presently, this is requested in relation to documents lodged under s 37 in previous proceedings before the Tribunal concerning an earlier claim by Ms Von Stieglitz. There are a number of things to say about this.
An application seeking release from the implied undertaking of confidentiality in respect of documents from previous litigation should not be confused or conflated with the requirements of s 37(1) and 37(2), to which I have referred, which have effect under s 37(3) “notwithstanding any rule of law relating to privilege or the public interest in relation to the production of documents”.
The implied undertaking maintains private rights to confidentiality in respect of documents discovered or brought into existence in litigation; documents discovered or brought into existence in litigation cannot be used in the context of other litigation unless there is a good reason or special circumstances for doing so. Private rights to confidentiality “should not be disturbed except to the extent necessary for the purpose of the administration of justice”[3].
[3] Re SAN and Military Rehabilitation and Compensation Commission [2008] AATA 237 at [23].
Release from the implied undertaking cannot be addressed in general terms. The specific nature and content of the documents for release and the use or purpose to which they will be put must be addressed.
While documents from earlier proceedings may be relevant to the investigation of matters in other litigation (or Tribunal proceedings), this must be established and relevant factors taken into account when deciding an application for release. Release cannot be assumed; for the proper exercise of the Tribunal’s discretion, factors of relevance must be considered in the particular circumstances[4]. These include the nature of the document, the circumstances under which it came into existence, the attitude of the author and any prejudice the author may sustain, whether the document was expected to enter the public domain, the nature of the information it contains, the circumstances in which it came into the hands of the applicant for release, and the likely contribution of the document to achieving justice in the proceeding[5]. These are important considerations when deciding an application for release in respect of proceedings before the Tribunal.
[4] Re P J Beaconsfield Gold NL and Australian Securities Commission; Otter Gold NL and Anor (1998) 54 ALD 109 at 116-118.
[5] Springfield Nominees Pty Ltd and Ors v Bridgelands Securities Ltd and Ors (1992) 38 FCR 217 at 225.
The present application for release is made in general terms and proceeds, as I have said, on the basis that “the facts of the present application (2012/0675) overlap with the facts of the previous application (2008/5018)”. That may be so, but it does not address the factors the Tribunal must consider when deciding such an application. The particular purposes of specific documents subject to the application for release must be considered. As I have said, in the absence of fresh evidence or the occurrence of something new, it may not be necessary to re-agitate issues already decided by the Tribunal and, in those circumstances, it may not be necessary or desirable to intrude upon the person’s private rights to confidentiality in order to achieve justice.
Comcare’s present request for release does not specify the particular documents to which it relates. Comcare submitted that the s 37 documents from the previous proceedings should be treated as one, but no information was provided about the content of the documents or any of the relevant factors I must consider. Comcare did not inform me of the nature and content of the particular documents from the previous proceedings that it presently wants to use or the purposes to which these documents would be put. As I have said, Mr Dennien informed me that he was not aware of the precise nature or contents of the documents.
Comcare’s attitude is puzzling. If the matter was pressing on 23 March 2012, as it plainly was, it would be reasonable to expect that it would have been progressed diligently prior to the hearing of these matters. I fail to understand how progress could properly be made in relation to issues of relevance for the purposes of s 37 and the various factors pertaining to the release sought by Comcare without knowledge of the particular documents.
Ms Von Stieglitz submitted that she has not had the opportunity to consider her position in respect to the documents subject to Comcare’s application, the documents not having been clearly identified, or to prepare any submissions about issues of confidentiality, relevance or any other matter. Mr Dennien contended that Comcare did not consult Ms Von Stieglitz because of the pressing requirement to lodge documents under s 37. This was a surprising submission for Comcare to make in the circumstances. And it is one that lacks merit. The proposition that the private rights of a person should give way to expediency of this kind is disturbing. It is one thing to seek additional time in which to lodge documents under s 37; it is another to apply for release of the implied undertaking of confidentiality in respect of documents from earlier proceedings. In the former the s 37(1) documents must be provided to other parties, including the person who applied for review, whereupon the person may make an application for confidentiality orders under s 35(2). In the latter, the person is to be afforded natural justice and procedural fairness – he or she is to be informed about the application for release (in specific terms) and given an opportunity to be heard. In the usual course this would involve Comcare seeking the views of the person in preparation for hearing of the application for release by the Tribunal. I have heard nothing from Comcare to indicate the existence of any good reason not to consult Ms Von Stieglitz about the application for release.
I know little of the facts of this application or the previous proceedings involving Ms Von Stieglitz. I have read the decision that is the subject of her application for review. It is quite clear that her present claim for compensation relates to an aggravation injury consequent upon the termination of her employment on 2 April 2008. This was confirmed by the parties orally. It appears that the “only issue in dispute is whether [Ms Von Stieglitz’s] injury resulted from reasonable administrative action within the meaning of section 5A of the [Safety, Rehabilitation and Compensation Act 1988]”. Presumably this issue was not decided by the Tribunal during the previous proceeding.
To my mind, if the Tribunal decided certain facts in the earlier proceeding, and those same facts have contextual relevance in the present proceeding, it may not be necessary to adduce evidence to establish those facts again unless there is a good reason to do so. A good reason might be that new information has come to light that may justify a contrary finding to that previously made. If no new material has come to light, or no good reason exists, I see no utility in bringing forward documents that were previously before the Tribunal to establish facts previously found by the Tribunal in those proceedings.
On the present materials, I am not able to determine whether documents from Ms Von Stieglitz’s previous proceedings in the Tribunal are likely to assist Comcare in its investigation, or presentation, of pertinent matters of dispute in the present proceedings; nor am I able to ascertain whether any such documents would be likely to assist the administration of justice in these proceedings.
It follows that the present application for release must be rejected. There is no bar to Comcare making a further, properly considered, application in due course, addressing relevant matters, if it so chooses. In the event that it does, Ms Von Stieglitz will be given an opportunity to be heard and the application will be decided on its merits.
Order
32. Comcare is to lodge documents under section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) on or before 20 April 2012.
I certify that the preceding 32 (thirty-two) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member.
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Associate
Dated 13 April 2012
Date of hearing 13 April 2012 Applicant In person Solicitor for the Respondent Mr Patrick Dennien
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