Marshall and National Disability Insurance Agency
[2020] AATA 4685
•2 November 2020
Marshall and National Disability Insurance Agency [2020] AATA 4685 (2 November 2020)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2019/2640
Re:John Edward Marshall
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:The Hon. John Pascoe AC CVO, Deputy President
Date:2 November 2020
Place:Sydney
The Tribunal decides to release the Respondent from the implied undertaking in relation to confidentiality for the following documents:
·Report of Dorothea Minikin (occupational therapist) dated 22 June 2020;
·Statement of John Marshall (Applicant) dated 26 November 2019;
·Statement of Karen Marshall (Applicant’s wife) dated 6 April 2020;
·Report of Natasha Smoleniec (occupational therapist) dated 15 September 2020; and
·Statement of John Marshall (Applicant) dated 9 October 2020.
Pursuant to section 35 of the Administrative Appeals Tribunal Act 1975 (Cth), the above documents are restricted to the legal representatives and expert witnesses of each party.
....................................[SGD].............................................
The Hon. John Pascoe AC CVO, Deputy President
CATCHWORDS
PRACTICE AND PROCEDURE – interlocutory application to release the Respondent from the implied undertaking in relation to confidentiality – objection to the request to release – whether special circumstances exist – where Applicant’s wife has similar proceedings before the Tribunal – where the documents were prepared for the purposes of litigation – where the documents contain sensitive and personal information – achieving the best interests of justice – request to be released from the implied undertaking in relation to confidentiality granted
LEGISLATION
Administrative Appeals Tribunal Act 1975(Cth) s 35
CASES
Eisa Ltd v Brady [2000] NSWSC 929
Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3
Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217
REASONS FOR DECISION
The Hon. John Pascoe AC CVO, Deputy President
2 November 2020
In this case, the Respondent seeks to be released from the implied undertaking in relation to confidentiality for the following documents:
·Report of Dorothea Minikin (occupational therapist) dated 22 June 2020;
·Statement of John Marshall (Applicant) dated 26 November 2019;
·Statement of Karen Marshall (Applicant’s wife) dated 6 April 2020;
·Report of Natasha Smoleniec (occupational therapist) dated 15 September 2020; and
·Statement of John Marshall (Applicant) dated 9 October 2020.
The Applicant has commenced proceedings in the Tribunal in respect of his access to the National Disability Insurance Scheme (‘NDIS’) and seeks a review of a decision dated 8 May 2019 of a delegate of the Respondent.
Mrs Karen Marshall is the Applicant’s wife. She has an application before the Tribunal, which also relates to eligibility to access the NDIS. The Applicant has provided a statement in respect of his wife’s proceedings and it was uncontested that the Applicant will be called by Mrs Marshall to give evidence at the Tribunal hearing of her application, which is listed for hearing on 23 and 24 November 2020.
The Respondent requests a release from the implied undertaking so that it is able to use the above documents in Mrs Marshall’s case, including lodging a copy of the relevant documents with the Tribunal, serving a copy on Mrs Marshall’s representative and providing a copy to the Respondent’s expert witness in Mrs Marshall’s application.
The law in relation to release from the implied undertaking is well settled. In Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3 (‘Liberty Funding’), the Full Court of the Federal Court found, when considering the earlier case of Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217 (‘Springfield Nominees’), that special circumstances did not require extraordinary factors but rather that it is enough to show that in all of the circumstances, good reason has to be shown as to 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 other litigation or for other purposes not related to litigation. The Court went on to say that the discretion is broad and that the circumstances of the case must be looked at. The Court approved the judgment of Wilcox J in the case of Springfield Nominees where he set out a number of circumstances relevant to the exercise of the discretion, specifically:
·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 into the hands of the Applicant; and
·Most importantly of all, the likely contribution of the document to achieving justice in the other proceeding.[1]
[1] Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217, 225.
The Court in Liberty Funding considered the matters listed by Wilcox J in the matter of Springfield Nominees and found that it was both appropriate and in the interests of justice for leave to be granted for an affidavit filed and served in the Federal Court to be used in Supreme Court proceedings. The Court found that special circumstances had been demonstrated as the affidavit dealt with issues relevant to the resolution of a matter in the Supreme Court.
The Applicant drew the Tribunal’s attention in particular to the case of Eisa Ltd v Brady [2000] NSWSC 929, in which Justice Santow held that special circumstances had to be shown before access to pleadings in a matter before the Court would be allowed. The Applicant in written submissions also drew the Tribunal’s attention to a number of other cases. However, those cases are readily distinguishable from the current case as they each turn on their own facts. Liberty Funding is clearly applicable to circumstances before the Tribunal.
Turning to the issues outlined by Wilcox J, the first relates to the nature of the documents. The documents relate to the lived experience of the Applicant and his wife who have been married for a lengthy period of time and provide support to each other on a daily basis.
The other documents are reports of occupational therapists, which deal with the extent of the impairments faced by Mr and Mrs Marshall and identify any supports required.
All of the reports were prepared for the purpose of litigation either in the wife’s case or the Applicant’s case before the Tribunal.
There was no evidence before the Tribunal as to the attitude of the occupational therapists to the release of their reports however it can reasonably be assumed that their attitudes would be neutral given that their reports were prepared as experts for the purpose of litigation.
The Applicant objects to the lifting of the implied undertaking of confidentiality in relation to the various reports and it may be that his wife has a similar view. However, given that the documents were prepared in order to provide important evidence to the Tribunal and the facts in each case are to a large extent intertwined, it is difficult to see how the production of any of them could prejudice the Applicant. In fact, it could be said that the Tribunal is more likely to reach the correct or preferable decision if it has access to all of the material that is relevant to the lived experience of the Applicant and his wife given their dependence on each other, rather than being restricted in the information available to it. I note further that the documents in question were prepared for the purposes of litigation and therefore it is reasonable to expect that all of the documents may enter the public domain.
The Applicant said in his written submissions that the reports contain sensitive and personal information and that the Applicant has a right to maintain confidentiality, especially in so far as the documents contain personal details of the Applicant’s disability, medical history and day to day living difficulties. These are, however, matters which are central to both of the cases before the Tribunal as the Applicant and Mrs Marshall live together and support each other closely. In other words, as stated above, their lives and therefore the issues before the Tribunal in both cases are closely related.
Again, as stated above, all of the documents in question were either prepared by the Applicant and/or his wife or by occupational therapists for the purposes of litigation before the Tribunal. There was no evidence of another purpose for the documents being brought into existence.
Most significantly, in determining whether the Respondent should be released from the implied undertaking, is a consideration of the importance of the relevant documents to achieving justice in the other proceedings.
In the current case, I am of the opinion that the documents in question will play an important part in achieving the best interests of justice and leading the Tribunal to a just and equitable conclusion. The critical factor is that although there are separate proceedings, Mrs Marshall’s proceedings are already on foot and the Respondent has information relevant to Mrs Marshall as part of those proceedings. In each case, it is a major factor that the Applicants, namely Mr and Mrs Marshall in their respective proceedings, say that they rely on each other in order to perform day to day functions. The material in question goes directly to the issue of the capacity of each of them to perform daily tasks and is central to the issues to be determined by the Tribunal in each case.
At the interlocutory hearing, counsel for the Respondent indicated that it may be appropriate for the Tribunal to restrict access to the documents in question to the party’s legal representatives and relevant expert witnesses. As some of the information is of a very personal nature, I will make such an order.
ORDERS
The Tribunal decides to release the Respondent from the implied undertaking in relation to confidentiality for the following documents:
·Report of Dorothea Minikin (occupational therapist) dated 22 June 2020;
·Statement of John Marshall (Applicant) dated 26 November 2019;
·Statement of Karen Marshall (Applicant’s wife) dated 6 April 2020;
·Report of Natasha Smoleniec (occupational therapist) dated 15 September 2020; and
·Statement of John Marshall (Applicant) dated 9 October 2020.
Pursuant to section 35 of the Administrative Appeals Tribunal Act 1975 (Cth), the above documents are restricted to the legal representatives and expert witnesses of each party.
I certify that the preceding 19 (nineteen) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President
..................................[SGD]......................................
Associate
Dated: 2 November 2020
Date of hearing: 27 October 2020 Solicitors for the Applicant: Ms C Virtu, Legal Aid NSW Counsel for the Respondent: Ms R Graycar, Counsel
0
4
0