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 

1. 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.

2. 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 other non-litigious purposes. The discretion is a broad one and all the circumstances of the case must be examined.

3. 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

4. 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.

I certify that the preceding 4 (four) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment

...........................[sgd].............................................

Associate

Dated:  15 September 2017

Date(s) of hearing:	15 September 2017
Solicitors for the Applicant:	Mr K Richardson, Maurice Blackburn
Counsel for the Respondent:	Mr P Woulfe
Solicitors for the Respondent:	Ms C Tota, HBA Legal