Keyte and Comcare (Compensation)
[2025] ARTA 1292
•8 August 2025
Keyte and Comcare (Compensation) [2025] ARTA 1292 (8 August 2025)
Applicant:Glenn Keyte
Respondent: Comcare
Tribunal Number: 2024/7968
Tribunal:Senior Member D Thomae
Place:Brisbane
Date:8 August 2025
Decision: The Tribunal affirms the decision under review.
................................[SGD]...........................
Statement made on 07 August 2025 at 4:50pm
CATCHWORDS
COMPENSATION – Settlement of proceedings in Administrative Appeals Tribunal (AAT) on basis Applicant entitled to compensation – subsequent reconsideration on own motion – whether s 118 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) ‘double dipping’ applies – where documents under compulsion showed Applicant received state compensation in AAT proceedings – use of s 58 notice by Respondent to obtain documents showing Applicant received state compensation – whether an implied undertaking applies to documents from AAT proceedings – whether the documents are able to be used for the purpose of present review – whether the Respondent breached an implied undertaking – application for leave nunc pro tunc to be released from the implied undertaking – release denied - affirm decision under review
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Income Tax Assessment Act 1936 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Taxation Administration Act 1953 (Cth)
Cases
Cadbury Schweppes Pty Ltd (ACN 004 551 473) v Amcor Limited (ACN 000 017 372) (2008) ATPR 42-224
Casey v Repatriation Commission (1995) 60 FCR 510
Comcare v DSLB [2025] FCAFC 13
Commonwealth v Snell (2019) 269 FCR 18
Deputy Commissioner of Taxation v Rennie Produce (Aust) Pty Ltd (in liq) (2018) 260 FCR 272
Ellercamp and Comcare [2025] ARTA 637
Esso Australia Resources Limited v Plowman (1995) 183 CLR 10
Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250
Hazel-Wright v 32 Domain Pty Ltd (ACN 163 035 603) [2020] VSCA 129
Hearne v Street (2008) 235 CLR 125
La Mancha Africa S.A.R.L v Commissioner of Taxation [2021] FCA 1546
Lees v Comcare [1999] FCA 753
Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3
Maric v Comcare (1993) 40 FCR 244
Re Butler and Australian Postal Corporation [1992] AATA 361
Re Chin and Comcare (Compensation) [2017] AATA 634
Re DVFW and Comcare (Compensation) [2019] AATA 2366
Re Ellercamp and Comcare [2025] ARTA 637
Re Oliver and Comcare (Compensation) [2018] AATA 1964
Re Pidgeon and National Disability Insurance Agency [2023] AATA 2207
Re Warner and Comcare (Compensation) [2017] AATA 2709
Secretary, Department of Social Security v Jordan (1998) 83 FCR 34
Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217
Treasury Wine Estates Ltd v Maurice Blackburn Pty Ltd (2020) 282 FCR 95Secondary Materials
Administrative Appeals General Practice Direction 2015Administrative Review Tribunal (Common Procedure) Practice Direction 2024
Statement of Reasons
INTRODUCTION
The applicant, Mr Glenn Keyte (Mr Keyte), made an application for review[1] to the General Division of the Administrative Appeals Tribunal (the AAT)[2] of the decision by Comcare (Comcare), on its own motion under s 62(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act), to reconsider and revoke Mr Keyte’s entitlement to compensation for ‘post-traumatic stress disorder’ (the Condition).
[1] Exhibit R1 - T2.
[2] On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
Mr Keyte requests that the Tribunal set aside Comcare’s reconsideration decision[3] (the Reviewable Decision) so that Comcare remains liable under s 14 of the SRC Act for the Condition.
[3] Exhibit R1 - T2.1.
In the Reviewable Decision, Comcare determined that Mr Keyte was in receipt of compensation under a State workers’ compensation scheme for the Condition and therefore s 118 ‘Double Benefits’ of the SRC Act applied, such that Mr Keyte was not entitled to receive compensation under the SRC Act. Comcare thereby the previous incapacity payments made under the SRC Act from 4 July 2016 to 31 July 2024 in the amount of $572,807.68, creating a debt to Comcare owed by Mr Keyte in that amount.
At the hearing on 26 May 2025 Mr Keyte gave evidence. Mr Keyte was self-represented. Comcare was represented by Mr Peter Woulfe, of counsel, instructed by McInnes Wilson Lawyers.
The reconsideration of Mr Keyte’s entitlement to compensation under the SRC Act is in the context of the AAT proceedings number 2022/4669 (the First Proceedings), where a settlement was reached between Mr Keyte and Comcare on the basis that Mr Keyte was entitled to compensation under the SRC Act for the Condition.
At the hearing in this matter, Mr Keyte objected to certain documents (T21-T21.14) being in evidence in these proceedings on the basis that they had been summonsed documents in the First Proceedings and were subject to ‘privilege’ and could not be used (the Contested Documents).
After the hearing, the Tribunal directed that Comcare file an affidavit deposing to the provenance of documents T21-T21.14, (which Mr Keyte claimed ‘privilege’ over) and as to whether they were lodged in matter number 2022/4669 and on what basis (by summons, pursuant to directions, voluntarily or otherwise).
The Tribunal also directed that the parties could make further written submissions within 14 days of the said affidavit being filed in the Tribunal.
The Tribunal admitted into evidence:
(a)The ‘T-documents’ filed with the Tribunal under s 23 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act) as Exhibit R1.
(b)The affidavit of Mr Yaseen Tiry, solicitor, dated 13 June 2025 as Exhibit R2.
(c)The s 58 of the SRC Act Notice, dated 30 April 2024 as Exhibit A1 (the s 58 Notice).
ISSUES
The Tribunal must decide:
(a)Whether s 118 of the SRC Act applies to Mr Keyte and he is no longer entitled to the benefit of the decision of the AAT on 18 September 2023, by settlement between the parties, that determined Comcare was liable pursuant to s 14 of the SRC Act for the Condition (the AAT Decision) because he has recovered State workers compensation in respect to the Condition.
(b)If Mr Keyte’s claim for ‘privilege’ applies to the Contested Documents, produced to the Respondent in response to the s 58 Notice, that establish Mr Keyte recovered State workers compensation.
(c)Should the Reviewable Decision be affirmed or otherwise under s 105 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act).
MATERIAL FACTS
Agreed Facts
Mr Keyte and Comcare agreed that the relevant facts are as follows (the Agreed Facts):
(a)On or about July 1990, Mr Keyte commenced employment by Victoria Police (VICPOL). He was employed as a police officer, ultimately rising to the rank of Detective Sergeant.
(b)From 23 August 2004 to 4 November 2006, Mr Keyte was seconded to the Australian Federal Police (AFP). He was deployed to Papua New Guinea from 21 November 2004 until 16 May 2005. He was deployed to the Solomon Islands from 21 May 2005 to 4 November 2006, following which he returned to his usual VICPOL duties. However, while seconded, the Applicant always remained an employee of VICPOL.[4]
[4] Exhibit R1 - T21.1 & T21.3
(c)Mr Keyte made a claim for compensation under the Victorian workers compensation scheme (WorkCover). On 22 October 2015, that claim settled, relevantly, on the basis that:[5]
[5] Exhibit R1 - T21.2
(i)the defendant pays Mr Keyte’s reasonable medical treatment and like expenses relating to his claimed injury ‘to date and continuing’; and
(ii)the defendant maintained its rejection of payment of weekly compensation.
(d)In 2016, Mr Keyte ceased employment with VICPOL, apparently on the grounds of ill health.
(e)On 2 June 2016, it was determined that Mr Keyte was eligible for a permanent disability benefit under the Emergency Services Superannuation Scheme. Mr Keyte was subsequently advised that his fortnightly superannuation pension would commence on the ‘pension payday’, 28 July 2016.[6]
[6] Exhibit R1 - T7.1.
(f)On 18 April 2018, the Veterans’ Review Board decided that Mr Keyte was entitled to a disability pension assessed at ‘100% of the General Rate’ with effect from 19 June 2016 and at the ‘Special Rate’ with effect from 3 July 2016 pursuant to the Veterans’ Entitlements Act 1986 (Cth).[7]
[7] Exhibit R1 - T4.
(g)On or about 17 April 2019, Mr Keyte received a payment from WorkCover after he was sent to a medical panel which assessed his impairment under section 91 of the Accident Compensation Act 1985 (Vic) and the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th Edition. Mr Keyte’s psychiatric whole person impairment was determined to be 30%, which amounted to an entitlement in the sum of $75,410.00.
(h)On 31 January 2022, Mr Keyte made a claim for compensation in respect of the Condition under the SRC Act.
(i)By determination dated 15 February 2022, liability to pay compensation to Mr Keyte in respect of the Condition was denied under section 14 of the SRC Act. On 21 April 2022 Comcare made a reviewable decision by which that determination was affirmed.
(j)Mr Keyte sought review by the AAT of the reviewable decision dated 21 April 2022.
(k)On 18 September 2023, by the AAT Decision, Comcare was found liable to compensate Mr Keyte in respect of the Condition, sustained on 23 April 2014, pursuant to section 14 of the SRC Act.[8]
[8] Exhibit R1 - T5.
(l)Subsequently, Comcare made incapacity payments to Mr Keyte.
(m)On or about 30 April 2024, Comcare wrote to Mr Keyte to advise that it was investigating whether he had recovered State workers compensation in respect of the Condition sustained on 23 April 2014.[9]
[9] Exhibit R1 - T18; Exhibit A1.
(n)Further documentation was sought from Mr Keyte for Comcare, by the s 58 Notice, to assess the claim and to decide whether Mr Keyte recovered State workers compensation in respect of the Condition, requiring, inter alia:[10]
[10] Exhibit A1.
·Claim for compensation form dated 4 June 2014 (part of claim #21130073716).
·Letter of correspondence from the Victorian Workcover Authority (WorkSafe) accepting liability for your PTSD.
·Letter of correspondence from the Victorian Workcover Authority (WorkSafe) or Gallagher Bassett confirming payment for medical expenses in respect of your PTSD.
·Letter of correspondence from Maurice Blackburn to Gallagher Bassett dated 11 March 2016 acknowledging receipt of payment for $11,944.55 for settlement monies for claim #21130073716.
·Your claim for Impairment Benefits for PTSD dated 2 February 2018 (claim #21130073716).
·Letter of correspondence from Gallagher Bassett dated 1 August 2018 accepting liability under section 98C (Notice of Entitlement) and payment of $75,410 (part of claim #21130073716).
(o)On or about 28 May 2024, Mr Keyte responded to the s 58 Notice. Mr Keyte’s relevant responses establish that he recovered State workers compensation in respect of the Condition which was sustained on 23 April 2014.[11].
(p)Subsequently, Comcare undertook the reconsideration on own motion and made the Reviewable Decision.
(q)Mr Keyte then sought review by the AAT and has maintained this proceeding in the Tribunal.
[11] Exhibit R1 - T21-T21.1.14
The Contested Documents (T21-T21.14)
In respect of the Contested Documents:
(a)T21 is the email, dated 28 May 2024, from Mr Keyte to Comcare in response to the s 58 Notice, attaching T21.1 to T21.14. This email was not before the AAT in the First Proceedings and simply responds to the s 58 Notice.[12]
[12] Exhibit R1 - T21.
(b)T21.1 is a statement from Mr Keyte in response to the s 58 Notice, consistent with the Agreed Facts and relevantly discloses that Mr Keyte on 23 April 2019 was in receipt of a statutory lump sum payment in the amount of $75,410 from WorkSafe Victoria. Mr Keyte raises the issue of ‘privilege’ he says attaches to the Contested Documents. This document was not filed in the AAT in the First Proceedings.
(c)T21.2 is a letter from Maurice Blackburn Lawyers to Mr Keyte, dated 9 November 2015, stating that Mr Keyte’s WorkCover claim had settled. Mr Tiry deposes that this document ‘was provided by the Applicant to the Respondent voluntarily and/or as part of the claims management process and prior to proceeding 2022/4699’.[13]
[13] Exhibit R2 at [3(c)].
(d)T21.3 is a letter from the AFP stating Mr Keyte’s employment with the AFP. There is no controversy with this document in these proceedings and forms part of the Agreed Facts.
(e)T21.4 is an expert medical report from Dr Marriott, consultant psychiatrist, that was filed in the AAT in the First Proceedings. Mr Tiry deposes to it being filed in the AAT on the same basis as T21.2. The document is not relevant to the determination of the issues in these proceedings and is not considered further by the Tribunal.
(f)T21.5 is an expert medical report from Dr Gelb, consultant psychiatrist, that was before the AAT in the First Proceedings. Mr Tiry deposes to it being filed in the AAT on the same basis as T21.2. The document is not relevant to the determination of the issues in these proceedings and is not considered further by the Tribunal.
(g)T21.6 is a letter from Gallagher Bassett, solicitors for WorkCover, dated 21 May 2018, notifying Mr Keyte that his claim for impairment benefits had been rejected. Mr Tiry deposes that the document was produced by Mr Keyte in response to the s 58 Notice and then filed by Comcare as a ‘T-document’ pursuant to s 23 of the ART Act in these proceedings. Mr Tiry also deposes that the document was in the summonsed material returned to the AAT in the First Proceedings.[14]
(h)T21.7 is an independent impairment assessment from Dr Stern, consultant psychiatrist. Mr Tiry deposes that the document was produced by Mr Keyte in response to the s 58 Notice and then filed by Comcare as a ‘T-document’ pursuant to s 23 of the ART Act in these proceedings. Mr Tiry also deposes that the document was in the summonsed material returned to the AAT in the First Proceedings. The document is not relevant to the determination of the issues in these proceedings and is not considered further by the Tribunal.
(i)T21.8 is a letter from Gallagher Bassett, solicitors for WorkCover, dated 29 September 2018, notifying Mr Keyte that WorkCover accepted liability for Mr Keyte’s psychiatric condition, but he did not meet the statutory threshold for compensation. Mr Tiry deposes that the document was produced by Mr Keyte in response to the s 58 Notice and then filed by Comcare as a ‘T-document’ in these proceedings pursuant to s 23 of the ART Act. Mr Tiry also deposes that the document was in the summonsed material returned to the AAT in the First Proceedings.[15]
(j)T21.9 is a further expert medical report from Dr Marriott, consultant psychiatrist, that was filed in the AAT in the First Proceedings. Mr Tiry deposes that the document was produced by Mr Keyte in response to the s 58 Notice and then filed by Comcare as a ‘T-document’ in these proceedings pursuant to s 23 of the ART Act. Mr Tiry also deposes that the document was in the summonsed material returned to the AAT in the First Proceedings. The document is not relevant to the determination of the issues in these proceedings and is not considered further by the Tribunal.
(k)T21.10 is a ‘certificate of opinion’ from a medical panel constituted by WorkCover that determined Mr Keyte’s impairment from his psychiatric condition was 30%. Mr Tiry deposes that the document was produced by Mr Keyte in response to the s 58 Notice and then filed by Comcare as a ‘T-document’ in these proceedings pursuant to s 23 of the ART Act. Mr Tiry also deposes that the document was in the summonsed material returned to the AAT in the First Proceedings.[16]
(l)T21.11 is a letter from Gallagher Bassett, solicitors for WorkCover, dated 17 April 2019, notifying Mr Keyte that WorkCover accepted liability for Mr Keyte’s psychiatric condition at 30% impairment and the benefit payable was $75,410. Mr Tiry deposes that the document was produced by Mr Keyte in response to the s 58 Notice and then filed by Comcare as a ‘T-document’ in these proceedings pursuant to s 23 of the ART Act. Mr Tiry also deposes that the document was in the summonsed material returned to the AAT in the First Proceedings.[17]
(m)T21.12 is a letter from McInnes Wilson, acting for Comcare, to Dr Redmond, psychiatrist, in respect to an appointment for Mr Keyte to be assessed. Enclosed with the letter are various documents provided to Dr Redmond for his consideration. Mr Tiry deposes that the document was produced by Mr Keyte in response to the s 58 Notice and then filed by Comcare as a ‘T-document’ in these proceedings pursuant to s 23 of the ART Act. Mr Tiry also deposes that the document was in the summonsed material returned to the AAT in the First Proceedings. The document is not relevant to the determination of the issues in these proceedings and is not considered further by the Tribunal.
(n)T21.13 is an expert medical report from Dr Redmond. Mr Tiry deposes that the document was produced by Mr Keyte in response to the Present s 58 Notice and then lodged by Comcare as a ‘T-document’ in these proceedings pursuant to s 23 of the ART Act. Mr Tiry also deposes that the document was provided to Comcare by Mr Keyte ‘voluntarily’ during the First Proceedings. The document is not relevant to the determination of the issues in these proceedings and is not considered further by the Tribunal.
(o)T21.14 is the terms of agreement, between Mr Keyte and Comcare to resolve the First Proceedings. Mr Tiry deposes that the document was produced by Mr Keyte in response to the Present s 58 Notice and then filed by Comcare as a ‘T-document’ in these proceedings pursuant to s 23 of the ART Act. This document is not controversial and forms part of the Agreed Facts.
[14] Exhibit R2 at [8(a)].
[15] Exhibit R2 at [8(c)].
[16] Exhibit R2 at [8(e)].
[17] Exhibit R2 at [8(f)].
Based on the evidence of Mr Tiry, and the Tribunal’s findings above, the relevant Contested Documents for these proceedings, being T21.6, T21.8, T21.10, and T21.11, were available to the parties as summonsed documents in the First Proceeding (the Undertaking Documents).
This factual finding is consistent with the s 58 Notice that specifies each of the Undertaking Documents in circumstances Comcare would otherwise not have had the details of each of them without having been provided them by summons in the First Proceedings.
The clear inference is that in preparing the s 58 Notice, Comcare used the Undertaking Documents, and this constituted ‘use’ of documents subject to an ‘implied undertaking’.
The legal basis for this conclusion is detailed below.
LEGISLATIVE SCHEME
The SRC Act relevantly provides:
118 Double benefits
(1) If:
(a) an employee recovers State workers’ compensation in respect of an injury or the loss of, or damage to, property used by the employee; or
(b) State workers’ compensation is recovered by, or for the benefit of, a dependant of a deceased employee;
compensation is not payable under this Act to that employee in respect of that injury, loss or damage, or to, or for the benefit of, that dependant in respect of the injury that resulted in the death.
(2) If, after any compensation has been paid by a relevant authority under this Act:
(a) to an employee in respect of an injury or the loss of, or damage to, property used by the employee; or
(b) to, or for the benefit of, a dependant of a deceased employee;
any State workers’ compensation is recovered by the employee in respect of that injury, loss or damage or to, or for the benefit of, the dependant in respect of the injury that resulted in the death, as the case may be, the relevant authority may recover the amount of compensation paid by it from the person to whom it was paid in a court of competent jurisdiction as a debt due to the authority.
(3)A relevant authority that has received a claim may require the claimant to give it a statutory declaration stating whether any State workers’ compensation has been paid to or in respect of the claimant in respect of the injury or loss of, or damage to, property, as the case may be, to which the claim relates.
(4) Where a claimant for compensation refuses or fails, without reasonable excuse, to give a statutory declaration under subsection (3), the claimant’s rights to compensation under this Act in respect of the injury or loss of, or damage to, property to which the claim relates, and to institute or continue any proceedings under this Act in relation to that compensation, are suspended until the statutory declaration is given.
(5) Where a claimant’s right to compensation is suspended under subsection (4), compensation is not payable in respect of the period of the suspension.
(6)In this section:
State workers’ compensation means compensation recoverable under a law of a State or of a Territory, or of a foreign country, relating to workers’ compensation.
CONTENTIONS
Mr Keyte
Mr Keyte contended as follows:[18]
[18] Applicant’s statement of facts, issues and contentions, dated 7 March 2025.
(a)On 18 September 2023, the AAT accepted Mr Keyte’s claim for the Condition in the First Proceedings.
(b)The AAT Decision was ‘in the full knowledge that I had a limited Workcover claim resolved in the Melbourne Magistrates Court in 2015. This was for medical like expenses only and in full rejection of incapacity payments.’[19]
[19] See Exhibit R1, T21.2.
(c)Mr Keyte did not apply for a lump sum statutory impairment payment pursuant to ss 24 and 27 of the SRC Act as he received a lump sum from WorkCover in 2019 after receiving a 30% serious injury assessment and Mr Keyte considered that would have been a double benefit and he would have to repay any Comcare lump sum to WorkCover pursuant to s 119 of the SRC Act.
(d)On 30 April 2024, Comcare requested from Mr Keyte, ‘Letter of correspondence from Gallagher Bassett dated 1st August 2018 accepting liability under section 98C (Notice of entitlement) and payment of $75,410 (part of claim #21130073716).’
(e)Mr Keyte states:
On 5th of September 2023, I had a telephone hearing with the AAT which was attended by me, Solicitor Yas TIRY and Dr L Bygrave. During this hearing two issues were discussed and orders made by Dr Bygrave.
(1)An updated and amended Facts, Issue and Contentions were required from the respondent and to be made
(2)I was advised by Dr Bygrave that as I was self-represented, I could claim privilege on my Gallagher Bassett subpoena material that had been requested by Comcare solicitors. I claimed privilege on this material.
This now gives rise that the privileged Gallagher Bassett subpoena material that was held at the AAT and with Comcare solicitors must have been given to Comcare at the completion of the AAT process on 18th September 2023.
This is the only explanation how they could have requested the document in paragraph (12) which has initiated the section 58 reconsideration. I submit that Comcare has accessed the privileged Gallagher Bassett material and used it as the basis for the reconsideration. This document I note also does not form part of the T documents sent to me from Comcare as part of the ART process.
I have never waived privilege in regard to the Gallagher Bassett subpoena document’s to be used by any other parties. I believe this constitute a contempt of court / tribunal by the parties who accessed and subsequently used it.
If Comcare did not have the privileged material I would not have been subject to the reconsideration as to this compensation issue.
If Comcare had the document in paragraph (12) throughout my application and previous AAT process they would have raised it as an issue. Surely they would have challenged my claim as to compensation from the outset and not 7 months later.
I did not apply for compensation in the form of the statutory payment from Comcare as it would be duplicated payment and not appropriate for me to do so. I did not do this due to these facts and that I had notified Comcare of my 30% serious injury medical panel decision and I had received this one-off payment from Workcover.
I have not received double benefits in respect to the statutory compensation payment. I have not received the one-off statutory payment from Comcare in under section 24 and 27 of the Act which would have been a double payment.
I have also never received any incapacity payments from Workcover which is a separate economic loss payment under section 19(2) of the SRC Act. Comcare was paying me incapacity payments only.
Comcare has fully accepted my claim and this full acceptance should take precedence over the limited Workcover claim.
Section 118 of the SRC Act that benefits can essentially refused if I have received State compensation. This I submit is in regard to statutory payment only and not for separate issue of ongoing incapacity payments which is loss of earnings and not compensation.
The issue of what is compensation as opposed to incapacity payments needs further clarification.
In fairness I would be severely financially disadvantaged if I had to reimburse Comcare for incapacity payments.’
If the decision is affirmed and incapacity payments are stopped it would then render my Comcare claim defunct and worthless.
I submit that the decision be reversed by the ART and that I continue to receive ongoing incapacity payments for loss of earnings as per section 19(2) of the SRC Act and as part of my accepted Comcare claim.
Mr Keyte provided further written submissions after the hearing.[20] In those submissions he claims that the Contested Documents are subject to ‘an implied undertaking’ from the First Proceeding and have been improperly used to make the Reviewable Decision.
[20] Applicant’s submissions dated 10 July 2025.
Mr Keyte states that he provided the Contested Documents to Comcare in response to the s 58 Notice because he believed that he had a legal obligation to do so and was not told by Comcare his ‘ability to refuse which I would have expected by an agency that is considered to be a model litigant’. Mr Keyte contended that Comcare’s conduct in relying on the Contested Documents amounted to an abuse of process.
Comcare
Comcare relied on the Agreed Facts and a contention there is no utility in considering whether the Contested Documents are subject to an ‘implied undertaking’ where the relevant facts are agreed and the application to the law to those facts is straightforward, citing s 9 of the ART Act.
Comcare contended seven grounds for the Reviewable Decision to be affirmed.[21]
[21] Respondent’s submissions dated 11 July 2025.
First, Comcare, relying on the affidavit of Mr Tiry, contends that the Contested Documents were not documents obtained by compulsory disclosure[22] but were voluntarily provided by Mr Keyte outside the First Proceedings.
[22] Citing Hearne v Street (2008) 235 CLR 125 (Hearne).
The Tribunal decision of Ellercamp and Comcare [2025] ARTA 637 (Ellercamp) is irrelevant or distinguishable because it was a decision in respect of a party being released from the ‘implied undertaking’ and the ‘matter had not been the subject of a hearing and none of the materials for which the release was apparently sought had been adduced in evidence’.
Secondly, citing Esso Australia Resources Pty Ltd v Plowman (1994) 183 CLR 10 at 32-33, distinguished Ellercamp on the basis that, even if the Contested Documents were subject to the ‘implied undertaking’, there were inconsistent legal obligations that applied so ‘the implied obligation must yield to inconsistent statutory provisions and to the requirements of curial process in other litigation’.
Comcare contended that the Contested Documents, resulting from the s 58 Notice, were ‘voluntarily’ provided or ‘otherwise’ given to Comcare, outside the First Proceedings.
Relying on s 58 of the SRC Act and s 23 of the ART Act, Comcare contended that these provisions are inconsistent with the ‘implied undertaking’ and Mr Keyte was required to produce the Contested Documents ‘regardless of whether those documents might be said to be, or indeed are, subject to an “implied undertaking”’.[23]
[23] Citing Deputy Commissioner of Taxation v Rennie Produce (Aust) Pty Ltd (in liq) 2018 260 FCR 272 at [29]; La Mancha Africa S.A.R.L v Commissioner of Taxation [2021] FCA 1546 (La Mancha).
Relying on ss 52 and 56(1)(a) of the ART Act to contend that the Tribunal is not bound by the rules of evidence and its obligation to make the ‘correct and preferable decision and may inform itself in such manner as it considers appropriate’[24] and Comcare nor the Tribunal is not constrained in using the Contested Documents.
[24] cf Frugtniet v Australia Securities and Investment Commission (2019) 266 CLR 250 at [14]-[15].
Thirdly, Comcare contends the Tribunal erred in Ellercamp when it did not accept the reasoning in Re Chin and Comcare (Compensation) (2017) 160 ALD 176 (Chin) and Re Oliver and Comcare (Compensation) [2018] AATA 1964 (Oliver), which were decisions of a Senior Member and a Deputy President.[25]
[25] Citing Re Warner and Comcare (Compensation) [2017] AATA 2709 at [10]-[22]; Re DVFW and Comcare (Compensation) [2019] AATA 2366 at [6]; Re Pidgeon and National Disability Insurance Agency [2023] AATA 2207 at [13];.
The contested documents are not subject to the ‘implied undertaking’ as they ‘are not documents obtained by the respondent by compulsory disclosure of the kind contemplated by the High Court’, citing Hearne v Street (20028) 235 CLR 125.
Citing Hazel-Wright v 32 Domain Pty Ltd (ACN 163 035 603) [2020] VSCA 129 at [13]-[20] that:
there is support in the authorities for a general proposition that there is a class of subsequent cases between the same parties, or their privies, where the connection between the two cases has the result that the Harman undertaking in the earlier case does not prevent use of documents or information subject to that undertaking in the subsequent proceeding.
Contending that there is such a strong connection between the subject matter in the present proceedings and the First Proceedings that any ‘implied undertaking’ does not prevent use of the Contested Documents as the parties are the same and the alleged injury is the same.
Fourthly, the Tribunal should not pursue technicality at the expense of reaching the correct or preferable decision and Comcare ‘would be denied procedural fairness if the Tribunal decided to do anything other than affirm the decision under review because of some technical conclusion it might reach as to the application of the “implied undertaking”’.
Fifthly, ‘if the Tribunal were to conclude that an “implied undertaking” applies to the Contested Documents, it would be appropriate for the Tribunal to proceed in the manner requested by the respondent as set out in Mr Tiry’s affidavit’, namely the hearing be re-opened so summonses to produce may be issued in respect of the Contested Documents.
Sixthly, alternatively Comcare contends that if an ‘implied undertaking’ applies in relation to the Contested Documents then Comcare should nunc pro tunc be granted a release from that undertaking.[26]
[26] Citing Re Oliver; Treasury Wine Estates Ltd v Maurice Blackburn Pty Ltd (2020) 282 FCR 95 at [94]-[95].
Lastly, T21.2 establishes that Mr Keyte ‘recovered state workers compensation in respect of the injury the subject of the present proceedings’ and is not subject of an ‘implied undertaking’ such that ‘the decision under review must be affirmed regardless of the various technical and legal questions that might be raised in relation to the “implied undertaking” following Re Ellercamp or otherwise’.
CONSIDERATION
Rather than approach each of the contentions raised by the parties, particularly Comcare, the Tribunal approaches its consideration on the basis of whether:
(a)The Tribunal is able to use the Undertaking Documents and if so, what is the consequence.
(b)Has there been a breach of an ‘implied undertaking’ in respect of the Undertaking Documents.
(c)If Comcare has breached the ‘implied undertaking’ in respect of Undertaking Documents what is the consequence.
Is the Tribunal able to ‘use’ the Undertaking Documents and if so, what is the consequence
Ignoring for the moment how Comcare came into possession of the Undertaking Documents, they were filed by Comcare in the Tribunal.[27]
[27] They were filed as ‘T-Documents’ pursuant to s 23 of the ART Act.
Section 23 of the ART Act provides that the ‘decision-maker’, here Comcare, must, within 28 days of notification of an application for review, give the Tribunal ‘a copy of every other document that is (i) in the possession or under the control of the decision-maker; and (ii) relevant to the Tribunal’s review of the decision’.
That an ‘implied undertaking’ must yield to inconsistent statutory provisions is accepted by the Tribunal as in Esso Australia Resources Limited v Plowman (1995) 183 CLR 10 at [33], Mason J (with whom Dawson and McHugh JJ agreed) said:
It would be inequitable if a party were compelled by court process to produce private documents for the purposes of the litigation yet be exposed to publication of them for other purposes. No doubt the implied obligation must yield to inconsistent statutory provisions and to the requirements of curial process in other litigation, eg discovery and inspection, but that circumstance is not a reason for denying the existence of the implied obligation.
The Tribunal accepts that Comcare was statutorily obliged, pursuant to s 23 of the ART Act, to file the Undertaking Documents with the Tribunal, regardless of whether they were subject to an ‘implied undertaking’.
Now the Tribunal has been seized with the Undertaking Documents the issue is whether it has liberty to ‘use’ them.
That contention was considered by Gordon J in Cadbury Schweppes Pty Ltd (ACN 004 551 473) v Amcor Limited (ACN 000 017 372) [2008] FCA 398 (Cadbury Schweppes) at [14]-[17]:
If, contrary to the views earlier expressed, the question is properly framed as whether Visy should be released from its implied undertaking, I have no hesitation in concluding that it should be: QPSX Limited v Ericsson Australia Ltd (No 5) [2007] FCA 244 at [13] – [17]. Neither the ACCC nor Visy submitted that QPSX did not accurately summarise the applicable authorities and principles. And although the ACCC couched its submission in terms requiring demonstration of “special circumstances … such as would justify releasing a party from the implied undertaking, in relation to a specified document for a specified purpose”, the ACCC did not submit that the discretion to be exercised was one in which it is possible or desirable to propound an exhaustive list of the factors that may bear upon the discretion: QPSX at [17]; Springfield Nominees Pty Limited v Bridgelands Securities Limited (1992) 38 FCR 217 at 225; Holpitt Pty Ltd v Varimu Pty Ltd (1991) 29 FCR 576 at 578.
In the present case, it is important to recall that the issues that arise in this litigation are not substantially different in any relevant way from the issues that arose in the ACCC proceeding. The documents in question are statements of what potential witnesses had said they were willing to say in evidence in the ACCC proceeding. There is no persuasive reason why the use of that material should be confined to the proceeding instituted by the ACCC for the recovery of civil penalties from Visy and not made available to a party claiming damages from Amcor, the other participant in the price-fixing behaviour the subject of the ACCC proceeding.
Given the nature of the documents and the circumstances in which they were created, it is unsurprising that neither the ACCC nor Visy pointed to any prejudice that the witnesses whose proofs are at issue would sustain if the documents were produced. In particular, it was not suggested that any of the documents contained any personal data or commercially sensitive information not appropriately dealt with by the elaborate arrangements that now exist between the parties in respect of commercially sensitive information.
Having regard to the various matters I have mentioned and with particular regard to the nature of the documents at issue, I am of the view that production of the documents will contribute to achieving justice in the damages proceedings and that refusing to permit production would tend to hinder the achievement of that end.
Despite the method of the Undertaking Documents coming to the Tribunal’s attention in these proceedings, the clear import of them is that they are highly probative to determination of the issue in the application for review.
Namely, did Mr Keyte receive state workers compensation for the Condition and by operation of s 118 of the SRC Act is he disentitled from compensation under the SRC Act.
Further, the statement by Mr Keyte covering his response to the s 58 Notice, the Agreed Facts and T21.1 clearly put into evidence that Mr Keyte was in receipt of state workers compensation disentitling him to compensation under the SRC Act.
There is simply no utility, given the objectives of the ART Act, to prolong proceedings to re-open the hearing and have Comcare produce the Undertaking Documents to the Tribunal by summons or otherwise.[28]
[28] See Cadbury Schweppes; Hazel-Wright v 32 Domain Pty Ltd (ACN 163 035 603) [2020] VSCA 129 at [13]-[20]; Frugtniet v Australian Securities and Investment Commission (2019) 266 CLR 250 at [14] and [51].
The fact that Mr Keyte did receive state workers compensation for the Condition would inevitably be, and is, before the Tribunal.
There is no serious contention by Mr Keyte that s 118 of the SRC Act does not apply such that he remains entitled to compensation under the SRC Act.
Mr Keyte conceded as much and he was a forthright and reliable witness who honestly held a belief was that he was not ‘double dipping’ under the SRC Act, because the type of compensation, namely incapacity payments, was not the same as he was entitled and paid by WorkSafe Victoria under a state compensation scheme.
It follows, that the Tribunal is reasonably satisfied based on the contents of the Undertaking Documents, the Agreed Facts and T21.1, that Mr Keyte received state workers compensation, disentitling him from compensation under the SRC Act.
Has there been a breach of an ‘implied undertaking’ in respect of the Undertaking Documents
Comcare contended that the Undertaking Documents are not subject to an ‘implied undertaking’ because they were ‘voluntarily’ provided by Mr Keyte outside the First Proceedings (by Mr Keyte’s response to the s 58 Notice) and not compulsorily obtained.
Comcare cites the High Court decision of Hearne to support this contention.
In Hearne, the issue before the High Court was where a litigant is bound by an ‘implied undertaking’ not to use ‘affidavits or witness statements served by another party on it otherwise than for the purpose of the proceedings in which they were prepared, in what circumstances can servants and agents of the litigant who use the affidavits or witness statements in that way be liable for contempt of court’.[29]
[29] Hearne, at [61].
In Hearne, Hayne, Heydon and Crennan JJ stated at [96]-[97]:
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. The types of material disclosed to which this principle applies include documents inspected after discovery, answers to interrogatories, documents produced on subpoena, documents produced for the purposes of taxation of costs, documents produced pursuant to a direction from an arbitrator, documents seized pursuant to an Anton Pillar order, witness statements served pursuant to a judicial direction and affidavits. The appellants did not dispute the existence of this principle, and in particular did not dispute its potential application to the affidavit of Mrs Hesse and the witness statement of Dr Tonin.
It is common to speak of the relevant obligation as flowing from an “implied undertaking”
The plurality of the High Court in Hearne determined that an ‘implied undertaking’ is an obligation of substantive law.
To further its contention, Comcare relies on the Full Federal Court decision of Deputy Commissioner of Taxation v Rennie Produce (Aust) Pty Ltd (in liq) (2018) 260 FCR 272 (Rennie).
The statutory obligation under consideration in Rennie was s 353-10(1)(c) of the Income Tax Assessment Act 1936 (Cth) (ITAA) that provided a power to the Commissioner to require a party to produce any ‘documents in your custody or under your control for the purpose of the administration or operation of a taxation law’.
In Rennie, Kenny, Robertson and Thawley JJ, said at [56]:
The Harman obligation does not prevent or excuse a person owing that obligation from complying with a valid notice issued under s 353-10(1)(c). Nor does the Harman obligation prevent the applicant or taxation officers receiving documents the subject of a Harman obligation from using those documents in the lawful exercise of the powers and functions vested in the Commissioner.
The power of the commissioner to issue a notice to produce considered in Rennie was a power that had serious consequences for non-compliance, including criminal sanction.
Comcare also relies on La Mancha, that was also a case about the interplay between the ‘implied undertaking’ and the statutory functions and powers of the taxation commissioner.
As to Comcare’s reliance on s 58 of the SRC Act as an inconsistent statutory provision analogous to the consideration in Rennie and La Mancha, it relevantly provides:
58 Power to request the provision of information
(1) Where a relevant authority has received a claim and is satisfied that the claimant:
(a) has information or a document that is relevant to the claim; or
(b) may obtain such information or a copy of such a document without unreasonable expense or inconvenience;
the relevant authority may, by notice in writing given to the claimant, request the claimant to give that information or a copy of that document to the relevant authority within 28 days after the date of the notice or within such further period (if any) as the relevant authority, on the request of the claimant, allows.
…
(3) Where a claimant refuses or fails, without reasonable excuse, to comply with a notice under subsection (1), the relevant authority may refuse to deal with the claim until the claimant gives the relevant authority the information, or a copy of the document, specified in the notice.
The Tribunal does not quibble that Comcare has a power to make a reconsideration on own motion under s 62 of the SRC Act, but the power under s 58 of the SRC Act contemplates that the relevant authority requires the claimant to provide documents that are not in its possession or control to come to its decision in response to a claim.
The Reviewable Decision is not responsive to a claim by Mr Keyte. His claim was settled in the First Proceedings. Any non-compliance with the s 58 Notice would have been of little effect on Mr Keyte, s 58(3) provided that if he did not comply with the notice, then Comcare could refuse to deal with the ‘claim’.
It was prudent for Mr Keyte to respond to the s 58 Notice and in doing so the ‘implied undertaking’ did yield.
Comcare further contends, criticising Ellercamp and relying on Chin and Oliver, that Comcare is entitled to the Undertaking Documents for the purpose of ‘claims management’ in meeting its statutory duty and that is an inconsistent statutory obligation that overrides the ‘implied undertaking’.
The Tribunal does not accept that contention.
Reference to the varied approaches taken by the AAT or the Tribunal to ‘claims management’ as a reason for an ‘implied undertaking’ to no longer apply does not assist in the present circumstances. The Tribunal prefers to apply the reasoning from the authorities as detailed above by application to statutory requirements to ‘produce’ the Undertaking Documents.
The Tribunal is reasonably satisfied that the Undertaking Documents were subject to an ‘implied undertaking’ from the First Proceedings because:
(a)The Administrative Appeals Tribunal Practice Direction (AAT Practice Direction), made pursuant to s 18B of the AAT Act, that applied in the First Proceedings, provides:
5.2 If you or the decision-maker have obtained a document provided under compulsion in an application before the AAT, you, the decision-maker and any person to whom the document is given, by implication, undertake to the AAT that the document will not be used for any purpose other than the purpose for which it was given to us unless:
(a)the document was received in evidence by us in the application and the confidentiality of the document is not protected by an order under section 35 of the AAT Act or by another statutory provision; or
(b)we give you or the decision-maker permission to use the document for another purpose.
5.3 Documents to which the implied undertaking applies include:
(a)documents lodged under section 37 or 38AA of the AAT Act;
(b)documents lodged pursuant to a direction given by us (for example, expert reports or witness statements); and
(c)documents produced in response to a summons issued by us.
5.4 The implied undertaking continues even after an application has been finalised. Breach of the implied undertaking by using the documents for another purpose may constitute a criminal offence under section 63 of the AAT Act on the basis that it could, if the AAT were a court of record, constitute a contempt of court.
…
5.6 If you or the decision-maker want to use a document for another purpose, including a document that was given to us in an application that has been finalised, you or they must apply to us for leave to be released from the implied undertaking. The request must:
(a) be in writing;
(b) specify with particularity the documents in relation to which release is sought;
(c) tell us clearly why you want the release and who will use the documents; and
(d)if possible, specify whether or not the person to whom the documents relate consents to the release from the implied undertaking.
(b)The Undertaking Documents were produced to the AAT under summons and pursuant to ss 5.2, 5.3 and 5.4 of the AAT Practice Direction, they are subject to the ‘implied undertaking’.
(c)They were provided to Mr Keyte and Comcare during the First Proceedings as determined above.
(d)They were not put into evidence during a hearing to determine the First Proceedings, rather a settlement was reached between Mr Keyte and Comcare and the AAT subsequently issued orders enacting that settlement.
(e)Mr Keyte and Comcare did not seek leave to be released from the ‘implied undertaking’ over the Undertaking Documents prior to the s 58 Notice being issued and them being relied upon at the hearing in these proceedings pursuant to s 56 of s 6.25 of the Administrative Review Tribunal (Common Procedure) Practice Direction 2024 (ART Practice Direction).[30]
[30] made pursuant to s 36 of the ART Act.
Comcare’s contention that the Undertaking Documents were not subject to an ‘implied undertaking’ at the time of issuing its s 58 Notice is without merit.
The obligations of the ‘implied undertaking’ were by Mr Keyte and Comcare to the AAT and then the Tribunal. It was not for any party to decide itself it was no longer obliged to comply.
By issuing the s 58 notice, Comcare was attempting to cure its knowledge of the contents of the Undertaking Documents and their application to s 118 of the SRC Act by obtaining them from Mr Keyte under s 58 of the SRC Act.
Having done so it made its ‘own motion’ reconsideration decision.
The Tribunal is reasonably satisfied that Comcare breached an ‘implied undertaking’ by its use of the Undertaking Documents to prepare the s 58 Notice.
If Comcare has breached the ‘implied undertaking’ in respect of Undertaking Documents what is the consequence
The Tribunal does not consider an issue estoppel arises from that breach such that the Tribunal is not able to consider the substantive issue for determination in the application for review. In Commonwealth v Snell (2019) 269 FCR 18, the Federal Court considered the application of estoppel to the AAT at [40]-[51], stating:
Although a “pervading tenet of the judicial system”, the doctrine of issue estoppel is not apposite to the constitutional and statutory context of the Tribunal, and ought not to be extended to it.
Comcare, belatedly, seeks that the Tribunal to give leave nunc pro tunc of the ‘implied undertaking’ in respect of the Undertaking Documents and be released of the undertaking for the purposes of the present proceedings.
The party who is seeking to be released from the ‘implied undertaking’ must demonstrate ‘special circumstances’[31].
[31] Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217; see also Treasury Wine Estates Ltd v Maurice Blackburn Pty Ltd (2020) 282 FCR 95.
In Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3 (Liberty Funding), Branson, Sundberg and Allsop JJ considered the expression special circumstances, saying:
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 Tribunal is reasonably satisfied that Comcare knew, or ought to have known, that Mr Keyte was not entitled to compensation by operation of s 118 of the SRC Act at the time of the settlement in the First Proceedings, but chose, for unexplained reasons, to sit on that fact until some 7 months later when it made the Reviewable Decision, and after making substantial payments to Mr Keyte in the amount of $572,807.68.
The Tribunal has already determined that it is able to ‘use’ the Undertaking Documents, despite Comcare’s breach.
In the circumstances there is no utility to the Tribunal granting leave nunc pro tunc to absolve Comcare of its breach of an ‘implied undertaking’ and does not do so.
The Tribunal notes the potential serious consequences of breaching an ‘implied undertaking’ that may include the possible application of s 120 of the ART Act for contempt of the Tribunal.
This matter does not cast a positive light on Comcare or its conduct as a model litigant. That is because:
(a)Comcare knew, or ought to have known, in the First Proceedings that the Undertaking Documents raised an issue with s 118 of the SRC Act, such that Comcare was on notice that Mr Keyte was in breach of that section and was not entitled to compensation under the SRC Act for the Condition.
(b)With that knowledge, Comcare settled the First Proceedings and then proceeded to make substantial payments to Mr Keyte.
(c)Comcare knew that the Undertaking Documents were in summonsed material returned to the AAT in the First Proceedings, and despite that knowledge prepared the s 58 Notice using the contents of the Undertaking Documents, thereby breaching an ‘implied undertaking’.
DECISION
The Tribunal decides to affirm the decision under review.
Date(s) of hearing: 26 May 2025 Date final submissions received: 11 July 2025 Counsel for the Applicant: Mr Keyte, self-represented Counsel for the Respondent: Mr Peter Woulfe Solicitors for the Respondent: McInnes Wilson Lawyers
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