LMFP and Comcare (Compensation) - [2017] AATA 1512

LMFP and Comcare (Compensation) [2017] AATA 1512 (15 September 2017)
Division:                  GENERAL DIVISION
File Number(s):      2016/4033
Re:LMFP
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Deputy President B W Rayment
Date:15 September 2017
Place:Sydney

Leave is granted to the Respondent to utilise the following documents produced under summons for case management purposes in future decisions about the Applicant’s entitlement (if any) to compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) for the injuries alleged in applications for review made by the Applicant in eight proceedings pending before the Tribunal:
1All documents produced under summons by:
(a)Dr Lawrence Lack;
(b)Dr Siva Ratnarajah;
(c)Hunter New England Mental Health Service;
(d)Lynette Bainbridge;
(e)Macquarie Physiotherapy and Sports Injury Clinic;
(f)Healing Wave Chiropractic;
(g)Dr Christie Mason;
(h)Idameneo No 123;
(i)Dr John Prickett.

2The medical report of Dr Frank Chow (psychiatrist) dated 10 April 2017.
3The medical report of Dr Neil McGill (rheumatologist) dated 31 May 2017.

.........................[sgd]...............................................
Deputy President B W Rayment
Catchwords
PRACTICE AND PROCEDURE – application for release from implied undertaking – requirements of Tribunal’s General Practice Direction – Respondent granted leave to utilise specified documents
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Cases
Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3
Secondary Materials
Administrative Appeals Tribunal – General Practice Direction
REASONS FOR DECISION
Deputy President B W Rayment
15 September 2017

This is Comcare’s application made under paragraph 5.6 of the Tribunal’s General Practice Direction dated 30 June 2015 for leave to utilise documents produced under summons for case management purposes in future decisions about the Applicant’s entitlement (if any) to compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) for the injuries alleged in applications for review made by the Applicant in eight proceedings pending before the Tribunal. The documents in question are all documents produced under summons by the following persons and institutions:
1All documents produced under summons by:
(a)Dr Lawrence Lack;
(b)Dr Siva Ratnarajah;
(c)Hunter New England Mental Health Service;
(d)Lynette Bainbridge;
(e)Macquarie Physiotherapy and Sports Injury Clinic;
(f)Healing Wave Chiropractic;
(g)Dr Christie Mason;
(h)Idameneo No 123;
(i)Dr John Prickett.
2The medical report of Dr Frank Chow (psychiatrist) dated 10 April 2017.
3The medical report of Dr Neil McGill (rheumatologist) dated 31 May 2017.
The implied undertaking in the Tribunal’s General Practice Direction is to be released in “special circumstances”. As the Full Court of the Federal Court said in Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3 at [30] in relation to a similar question:
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading LMFP and Comcare (Compensation)

Details

AGLC: LMFP and Comcare (Compensation) [2017] AATA 1512
Case: [2017] AATA 1512
Decision Date: 15 September 2017

CaseChat Overview and Summary

This matter concerned an application by the Respondent, Comcare, for leave to utilise specified documents for case management purposes in future decisions regarding the Applicant's compensation entitlements. The application was heard by Deputy President B W Rayment P of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether Comcare should be granted leave to use documents, which had been produced under summons, for purposes beyond the immediate proceedings. This involved considering the requirements of the Tribunal's General Practice Direction concerning the release from the implied undertaking of confidentiality that normally attaches to documents produced in litigation.

The Deputy President granted leave for three key reasons. Firstly, the documents were sought for the proper purpose of claims management, aligning with Comcare's statutory duties. Secondly, the Tribunal considered that these documents would likely have been obtainable by Comcare through summonses in future proceedings if Comcare made an adverse decision regarding the Applicant's claims. Thirdly, the Applicant had previously authorised Comcare to collect and retain personal information from health professionals for the purposes of determining and managing their compensation claims and rehabilitation, and it was probable that Comcare could have obtained these documents directly from the producing parties.

Accordingly, the Deputy President granted leave to the Respondent to utilise the specified documents for case management purposes in future decisions concerning the Applicant's entitlement to compensation under the *Safety, Rehabilitation and Compensation Act 1988* (Cth) for injuries alleged in eight pending applications for review.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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”.DECISION I accordingly grant leave to the Respondent to utilise the following documents produced under summons for case management purposes in future decisions about the Applicant’s entitlement (if any) to compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) for the injuries alleged in applications for review made by the Applicant in eight proceedings pending before the Tribunal: 1All documents produced under summons by: (a)Dr Lawrence Lack; (b)Dr Siva Ratnarajah; (c)Hunter New England Mental Health Service; (d)Lynette Bainbridge; (e)Macquarie Physiotherapy and Sports Injury Clinic; (f)Healing Wave Chiropractic; (g)Dr Christie Mason; (h)Idameneo No 123; (i)Dr John Prickett. 2The medical report of Dr Frank Chow (psychiatrist) dated 10 April 2017.3The medical report of Dr Neil McGill (rheumatologist) dated 31 May 2017.

Ratio Decidendi

Legal Principle Established

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