Newey and Comcare (Compensation)
[2019] AATA 1772
•9 July 2019
Newey and Comcare (Compensation) [2019] AATA 1772 (9 July 2019)
Division:GENERAL DIVISION
File Number: 2018/3717
Re:Alison Newey
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Deputy President S A Forgie
Date:9 July 2019
Place:Melbourne
The Tribunal decides that:
(1)in so far as the reports of Dr Brazenor and Dr Hundertmark refer to, and/or are based on, information from documents or material produced in response to a summons issued in these proceedings:
(a)they are subject to an implied undertaking; and
(b)the respondent:
(i)may use them in its claims management area in relation to resolving the applicant’s claim for compensation under s 16 of the Safety, Rehabilitation and Compensation Act 1988 in respect of pain management and remedial therapy/massage in relation to “post-concussion syndrome, sprain of right shoulder/upper arm and right wrist, an aggravation of tinnitus, post-traumatic stress disorder and an adjustment disorder with depressed mood”; and
(ii)may not use them for any other purpose without first seeking, and obtaining, release from, or modification of, the implied undertaking.
(2)subject to paragraph (1), the respondent may otherwise use the reports of Dr Brazenor and Dr Hundertmark in the management of claims for compensation by the applicant under s 54 of the Safety, Rehabilitation and Compensation Act 1988.
[sgd]..................................................................
S A FORGIE
Deputy President
Catchwords
PRACTICE AND PROCEDURE – application for release from implied undertaking – whether documents subject to implied undertaking – whether release sought for use collateral or ulterior to that for which it was obtained – implied undertaking applies
Legislation
Administrative Appeals Tribunal Act 1975
Privacy Act 1988
Safety, Rehabilitation and Compensation Act 1988
Cases
Complete Technology Pty Ltd v Toshiba (Australia) Pty Ltd [1994] FCA 1314; (1994) 53 FCR 125; 124 ALR 493
Esso Australia Resources Ltd v Plowman [1995] HCA 19; (1995) 183 CLR 10; (1995) 128 ALR 391
Hearne v Street [2008] HCA 36; (2008) 235 CLR 125; 248 ALR 609
Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 648
Lees v Comcare [1999] FCA 753; (1999) 56 ALD 84
Otter Gold Mines Ltd v McDonald (1997) 76 FCR 467; 147 ALR 322; 25 AAR 276; 48 ALD 222
Prudential Assurance Co v Fountain Page [1991] 3 All ER 878; 1 WLR 756
Re Chin and Comcare [2017] AATA 634
Re Oliver and Comcare [2018] AATA 1964
YFFM and Australian Securities and Investments Commission [2009] AATA 489
REASONS FOR DECISION
Deputy President S A Forgie
On 4 February 2015, Ms Newey, the applicant in these proceedings, was assaulted by a customer while serving customers in a queue whilst working as a Customer Liaison officer at Centrelink. She described being struck on the side of her head and thrown to the floor. In her claim for compensation lodged on 12 February 2015, Ms Newey stated that she had suffered “muscular skeletal injuries and post trauma”. He shoulder and wrist had been affected and she had suffered brain trauma. Comcare first accepted liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) on 19 February 2015 for post-concussion syndrome, sprain of shoulder and upper arm (right) and wrist sprain (right).[1] Comcare also accepted reasonable medical claims resulting from Ms Newey’s injury up to and including 5 March 2015 and also accepted time off work claims up to and including 15 February 2015.
[1] Documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975; T documents; T8 at 30. Comcare explained in its letter dated 19 February 2015 that it had described Ms Newey’s claimed condition using the International Classification of Diseases and Injuries.
On 19 February 2015, Ms Newey notified Comcare that she was also suffering from anxiety and post-traumatic stress disorder (PTSD). She had consulted her general practitioner on that day. On 9 November 2015, Comcare accepted liability for PTSD and an adjustment disorder with depressed mood when it determined that they had arisen out of, or in the course of, her employment or was significantly contributed to by it.[2]
[2] T documents; T20 at 87
On 20 March 2018, Comcare decided that Ms Newey was not entitled to compensation under s 16 of the SRC Act in respect of pain management and remedial therapy/massage in relation to “post-concussion syndrome, sprain of right shoulder/upper arm and right wrist sprain, an aggravation of tinnitus, post-traumatic stress disorder and an adjustment disorder with depressed mood”. Comcare made its decision after concluding that pain management and massage were not in sought in relation to those conditions but in relation to an underlying degenerative condition. It affirmed its decision on 15 May 2018.
Comcare asked Dr Graeme Brazenor, a neurosurgeon, to examine Ms Newey and to prepare a report addressing several issues that may be grouped under the headings of history and reported symptomology of the incident that preceded her claim for compensation, diagnosis, contribution, and continuing contribution, of her employment to the conditions he had diagnosed and treatment. It gave Dr Brazenor copies of clinical notes that had been provided to the Tribunal under summons. Dr Brazenor prepared a report dated 30 November 2018 addressing those questions. Comcare lodged a copy of it in the Tribunal.
In so far as it may be necessary to do so, Comcare now asks that the Tribunal waive the implied undertaking over Dr Brazenor’s report. The purpose of its seeking the waiver was to allow its claims management area to refer to the report in its determinations relating to Ms Newey’s claims for compensation in the form of medical treatment or payments for incapacity for work in relation to “post-concussion syndrome, sprain of shoulder & upper arm (right) and wrist sprain (right), and an aggravation of tinnitus, post-traumatic stress disorder and an adjustment disorder with depressed mood”. Comcare also makes the same request in relation to a report by a psychiatrist, Dr James Hundertmark, which it is yet to receive but will lodge in the Tribunal in due course.
I have decided that:
(1)in so far as the reports of Dr Brazenor and Dr Hundertmark refer to, and/or are based on, information from documents or material produced in response to a summons issued in these proceedings:
(a)they are subject to an implied undertaking; and
(b)Comcare:
(i)may use them in its claims management area in relation to resolving Ms Newey’s claim for compensation under s 16 of the SRC Act in respect of pain management and remedial therapy/massage in relation to “post-concussion syndrome, sprain of right shoulder/upper arm and right wrist, an aggravation of tinnitus, post-traumatic stress disorder and an adjustment disorder with depressed mood”; and
(ii)may not use them for any other purpose without first seeking, and obtaining, release from, or modification of, the implied undertaking.
(2)subject to paragraph (1), Comcare may otherwise use the reports of Dr Brazenor and Dr Hundertmark in the management of the claim for compensation Ms Newey made under s 54 of the SRC Act.
THE SUBMISSIONS
On behalf of Ms Newey, Mr Dent opposed my waiving the implied undertaking in relation to either report. He did so on the basis that they should not be used for a purpose that is collateral or ulterior to that for which they were obtained. Dr Brazenor’s report contains a detailed forensic analysis of various reports and refers to two injuries – neck and lower back – to which no reference is made in Comcare’s description of Ms Newey’s injuries as “post-concussion syndrome, sprain of right shoulder/upper arm and right wrist, an aggravation of tinnitus, post-traumatic stress disorder and an adjustment disorder with depressed mood”. Issues relating to treatment for pain management are quite distinct from those relating to compensation for incapacity for work and it is misconceived to think that a claim for compensation can lead to an amorphous consideration. Mr Dent submitted that the decisions of Re Chin and Comcare[3] (Chin) and Re Oliver and Comcare[4] (Oliver), need to be reconsidered in light of the judgment of Einstein J in Idoport Pty Ltd v National Australia Bank Ltd[5] and that judgment applied. The neck and back conditions referred to in Dr Brazenor’s report are not those now referred to by Comcare. Ms Newey was compelled to submit to an examination by Dr Brazenor and Dr Hundertmark and her personal information should not now be released simply for Comcare’s convenience. The particular proceedings for which a person is compelled to give evidence must be kept in focus.
[3] [2017] AATA 634; Dr James Popple, Senior Member
[4] [2018] AATA 1964; Deputy President Gary Humphries
[5] [2001] NSWSC 648
Mr Vas submitted that Comcare did not seek to use the reports for a purpose at odds with that for which it was obtained for these proceedings in the Tribunal. Dr Brazenor has conducted a holistic review of Ms Newey’s injuries and they all resulted from the same incident. All are relevant in determining whether the medical treatment Ms Newey claims compensation for is, under s 16 of the SRC Act, in relation to the injury and, if so, is reasonable for her to obtain in the circumstances.
PREVIOUS TRIBUNAL DECISIONS
The first case to which I have been referred is Chin, in which Ms Chin had claimed compensation for injuries when she slipped at work. In 1995, Comcare had accepted liability for a fracture of her left kneecap. Sometime later, it accepted liability for left sacroiliac joint strain. In 1997, Comcare began to pay for Ms Chin to receive household services. In 2016, Comcare decided that she had no present entitlement to household services and affirmed its determination when Ms Chin sought review. Ms Chin lodged an application in the Tribunal for review of the reviewable decision. The Tribunal required Comcare to lodge a copies of two medical reports prepared by an orthopaedic surgeon, Dr Mourad, and the briefing material, which included summonsed documents, it had given him.
Comcare had submitted that the purposes for which it intended to use the reports were not purposes collateral to the purposes for which they had been lodged because it wanted to use them for claims management purposes. The Tribunal found that the reports were subject to an implied undertaking in so far as they were informed by, or reproduce information from, the summonsed documents.
The Tribunal also decided:
“ I agree that claims management purposes are not collateral to the proceedings in this review. The Tribunal, in conducting merits review of Comcare’s decision, stands in the shoes of the decision maker. The Tribunal’s decision (when it is made) will be more than just closely connected with claims management purposes: it will be—like the decision under review—a claims management decision. This is not a situation where documents are proposed to be used ‘in one action for the purposes of another action’; the Tribunal’s decision will be one decision amongst several made during the management of the same claim.
In this review, Comcare was compelled to produce the relevant documents for the purpose of the Tribunal determining whether Ms Chin is entitled to compensation for household services. The claims management purposes—future decisions about Ms Chin’s entitlement to compensation for the accepted injuries—are not ‘different’ to, ‘outside’ or ‘otherwise than in relation to’ that purpose. The claims management purposes are not purposes other than that for which the relevant documents were given.
That would not necessarily have been the case if the claims management purposes and the decision under review had related to the same person but to different injuries. But, in this review, the claims management purposes and the decision under review are both concerned with compensation in relation to the injuries Ms Chin sustained in January 1995. It follows that the claims management purposes are not collateral or ulterior to the purpose for which Comcare was compelled to produce the relevant documents in this review. Comcare does not require a release from the implied undertaking before it can use the relevant documents for claims management purposes.”[6]
[6] [2017] AATA 634at [27]-[29]
The second case is Oliver. Comcare accepted a claim for compensation in respect an unspecified disorder of synovium, tendon and bursa (left) and wrist sprain (left). Ms Oliver later submitted a claim for compensation with respect to her right shoulder and wrist as well as a secondary overuse injury resulting from her being unable to use her left wrist/arm. Comcare made a determination denying liability to pay compensation for her neck, shoulder and back pain (right) under s 14 of the SRC Act. It did so on the basis that it was not satisfied that she was suffering from an ailment or that her injury had arisen out of, or in the course of, her employment and relied on a report of an occupational physician that Ms Oliver’s condition would have developed in any event. Ms Oliver sought review of the determination and, when Comcare affirmed its determination in a reviewable decision, she lodged an application for review in the Tribunal.
After it had made its reviewable decision, Comcare obtained two reports from Professor Youssef, rheumatologist. Professor Youssef had been asked to consider clinical notes produced under summons in earlier proceedings. Comcare submitted that Professor Youssef’s reports were produced as part of the claims management of her compensable conditions and that the Tribunal had previously released Comcare from the implied undertaking for such purposes. Ms Oliver submitted that her claim for a condition affecting her right limb was a condition different from her compensable conditions. Comcare had to seek a release of the implied undertaking applying to those summonsed documents.
The Tribunal decided:
“… Prof Youssef’s reports were not produced in respect of a condition unrelated to Ms Oliver’s compensable conditions, nor were they, on one reading, strictly related only to claims management in respect of the compensable conditions. On balance, however, I consider that it is fair to view the reports as having been produced in respect of claims management for her compensable conditions, and as such they do not require release from the implied undertaking.”[7]
[7] [2018] AATA 1964 at [58]
The Tribunal went on to consider whether it would release Comcare from an implied undertaking if, contrary to its view, there were one and concluded:
“ If I am mistaken in this assessment, however, I would be prepared to grant that release at this stage of the proceedings. It is to be remembered that Ms Oliver asserts that her right limb condition is the direct outcome of suffering from the compensable conditions; material produced in connection with the latter it seems has a direct relevance to the assessment of a claim for compensation for the former.”[8]
[8] [2018] AATA 1964 at [59]
CONSIDERATION
The Tribunal is the recipient of many documents and other material that are generally lodged by or on behalf of the parties, either voluntarily or in accordance with a direction made by the Tribunal. Those documents and material will include affidavits and primary documents intended to be evidence relevant to the issues to be decided. They will also include documents such as Statements of Facts, Issues and Contentions (SFIC) setting out their positions and submissions. Generally, they will do so in accordance with directions given in the particular proceeding or in accordance with the general directions given in the General Practice Direction made under s 18B of the Administrative Appeals Tribunal Act 1975 (AAT Act) and dated 28 February 2019.
Documents may also be produced to the Tribunal under a summons issued by an authorised member or an officer of the Tribunal under s 40A of the AAT Act. The summons may be issued “for the purposes of a proceeding before the Tribunal …”.[9] A “proceeding” includes, among others, an application to the Tribunal for review of a decision. Therefore, a hearing of a proceeding would include a hearing of the substantive merits of the decision under review and lead to a decision under s 43 of the AAT Act.[10] A “proceeding” also includes “an incidental application to the Tribunal made in the course of, or in connection with, an application or proposed application, or a matter, referred to in a preceding paragraph.”[11] Unless otherwise required to attend a hearing of a proceeding, a person may comply with a summons by producing the document or thing at the Registry from which the summons was issued on a day before that specified in the summons.[12]
[9] AAT Act; s 40A(1)
[10] AAT Act; s 3(1), paragraph (a)
[11] AAT Act; s 3(1), paragraph (h)
[12] AAT Act; s 40A(3)
Access to, and use by, the parties of documents or things produced under a summons
Neither party may have access to the document or thing produced in response to a summons issued under s 40A of the AAT Act until an inspection order is made under s 40B. Once an inspection order is made, the parties may inspect the summonsed documents or things in accordance with the terms of that order. They may use the summonsed documents for the purpose of the proceeding for which they have been summonsed. They may, for example, be used to brief medical experts for the purposes of the proceeding. The parties may refer to them during the hearing of a proceeding and may tender them to be admitted as exhibits. Even after a hearing has concluded, the documents may be used in contemplating whether an appeal should be lodged.
Beyond those purposes, the documents may not be used. In particular, they may not be used for collateral or ulterior purposes because the documents are said to be subject to an “implied undertaking”, which:
“… is subject to the qualification that once material is adduced in evidence in court proceedings it becomes part of the public domain, unless the court restrains publication of it.
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 the publication of them for other purposes. No doubt the implied obligation must yield to inconsistent statutory provisions and to the requirements of the curial process in other litigation eg discovery and inspection, but that circumstance is not a reason for denying the existence of the implied obligation.”[13]
[13] Esso Australia Resources Ltd v Plowman & Ors (1995) 183 CLR 10; 128 ALR 391 at 32-33; 403 per Mason CJ
In Complete Technology Pty Ltd v Toshiba (Australia) Pty Ltd,[14] Hill J adopted a description of the obligation from the judgment of Hophouse J in the earlier case of Prudential Assurance Co v Fountain Page Limited:[15]
“ This undertaking is implied whether the court expressly requires it or not … It is now in reality a legal obligation which arises by operation of law by virtue of the circumstances under which the relevant person obtained the documents or information. However, treating it as having the character of an implied undertaking continues to serve a useful purpose in that it confirms that the obligation is one which is owed to the court for the benefit of the parties, not one which is owed simply to the parties; likewise, it is an obligation which the court has the right to control and can modify or release a party from.”[16]
[14] [1994] FCA 1314; (1994) 53 FCR 125; 124 ALR 493 at 132; 501
[15] [1991] 3 All ER 878; 1 WLR 756 at 764
[16] [1991] 3 All ER 878; 1 WLR 756 at [35]; 885, 764
As is apparent from its terms, the implied undertaking applies in court proceedings but it applies equally to arbitration proceedings[17] and to proceedings in the Tribunal.[18] The implied undertaking also binds others, such as expert witnesses, to whom documents or material subject to the implied undertaking may be given.[19] Those third parties may well refer to, or incorporate references to those documents or material in their reports or statements. Even if their reports or statements are not lodged in the proceedings, they remain subject to an implied undertaking not to use them for purposes that are collateral or ulterior to the purposes for which the documents or material were lodged by a party or produced on summons.
[17] Esso Australia Resources Ltd v Plowman & Ors (1995) 183 CLR 10; 128 ALR 391 at 33; 403-404 per Mason CJ
[18] Otter Gold Mines Ltd v McDonald 76 FCR 467; 147 ALR 322; (1997) 25 AAR 276; 48 ALD 222 at 472; 327; 281; 227 per Sundberg J
[19] Hearne v Street [2008] HCA 36; (2008) 235 CLR 125; 248 ALR 609 at [109]; 160; 637; Hayne, Heydon and Crennan JJ
What is a collateral or ulterior purpose?
This issue was addressed by Brennan J in Esso Australia Resources Ltd v Plowman when considering the principle underlying the obligation of a party who impliedly gives an undertaking of confidentiality to a court when obtaining an order for discovery in an action and the contractual obligation of a party under an arbitration agreement. His Honour saw them in the same light saying that:
“… The underlying principle … is that a party who obtains the production of documents or the disclosure of information for a particular purpose cannot use the documents or information for a ‘collateral or ulterior purpose … That phrase is not used in a pejorative sense , as Lord Diplock said in Home Office v Harman… [[1983] 1 AC 280 at 302] but it is used ‘merely to indicate some purpose different from that which was the only reason why, under a procedure designed to achieve justice in civil actions, [the solicitor for a party] was accorded the advantage, which she would not otherwise have had, of having in her possession copies of other people’s documents.’ … “[20]
[20] [1995] HCA 19; (1995) 183 CLR 10; (1995) 128 ALR 391 at 36; 406-407
In Idport Pty Ltd v National Australia Bank Ltd,[21] Einstein J adopted submissions made by Mr Gleeson SC on behalf of the defendant and read, in part:
“As to what constitutes a collateral or ulterior purpose generally:
(a) The use of documents disclosed in one action for the purposes of another action will be a collateral or ulterior purpose: Crest Homes plc v Marks [1987] 1 AC 829 at 837, Tate Access Floors Inc v Boswell [1991] Ch 512 at 526; even where the parties to both actions are identical: see Riddick [Riddick v Thames Board Mills Ltd [1977] QB 881] at 896-897, 901-902 and 912; and where the causes of action are identical: Sybron Corporation v Barclays Bank Plc [1985] Ch 299 at 319-320.
(b) It encompasses ‘purposes different from the conduct of the proceedings in or in relation to which the inspection was had’: Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1995) 18 ACSR 218 at 221 Giles CJ in CommD.
(c) It is a collateral or ulterior use of documents disclosed to leak them to the press in order to expose alleged wrongdoing: Distillers Co v Times Newspapers [1975] 1 QB 613 at 621.
(d) It is not a collateral or ulterior use for documents disclosed on discovery to be used for the purposes of adding new causes of action or parties to the action in which the documents have been disclosed: Sybron [Sybron Corporation v Barclays Bank Plc [1985] Ch 299] at 328; Allstate Life Insurance Co Ltd v ANZ Banking Group Ltd (1995) 57 FCR 360 at 378-379.
(e)In principle, there is no difference between the use of discovered materials by a party in adding new causes of action and an application for leave to cross-claim against a party not a party to the main proceedings or for the bringing of a cross-claim by one party to the proceedings against another as the use of the documents for the purpose of legal proceedings. Allstate [Allstate Life Insurance Co Ltd v ANZ Banking Group Ltd (1995) 57 FCR 360] at 380.”[22]
[21] [2001] NSWSC 648
[22] [2001] NSWSC 648 at [27]
Release from an implied undertaking
A court may release a party from the implied undertaking or may modify the scope of the implied undertaking but that power is not freely exercised and, if exercised, only where special circumstances appear.[23] The same is true in the Tribunal except that the nature of some of its work means that the same parties may well come together in proceedings that relate to similar matters arising from the same set of circumstances. Under the SRC Act, for example, Comcare or a licensee under the SRC Act may make several reviewable decisions relating first to liability and then to compensation for such things as medical expenses, permanent impairment and incapacity. When applications are made to the Tribunal for review of a later reviewable decision, the parties may often consent to a modification of the implied undertaking applying to documents lodged in relation to an application for review of an earlier decision so that regard may be had to them in the second. If they do not consent, the Tribunal will consider any request to be released from an implied undertaking. Its power is a consequence of its power to require documents to be summonsed under s 40A of the AAT Act. As Sundberg J said in Otter Gold Mines Ltd v McDonald:
“ The power to release from the implied undertaking of confidentiality is incidental to the power to require documents to be produced. Production under compulsion gives rise to the undertaking. The power to release is intrinsically associated with that undertaking. It is the other side of the coin.”[24]
[23] Esso Australia Resources Ltd v Plowman [1995] HCA 19; (1995) 183 CLR 10; (1995) 128 ALR 391 at 33; 407; Mason CJ
[24] 76 FCR 467; 147 ALR 322; (1997) 25 AAR 276; 48 ALD 222 at 473; 328; 282; 227
In Complete Technology Pty Ltd v Toshiba (Australia) Pty Ltd,[25] Hill J focused on what would lead to release from:
“… Should a party desire to make use of such documents or statements, special circumstances must prevail before leave of the Court will be granted. … Burchett J in Holpitt … [Holpitt Pty Ltd v Varimu Pty Ltd (1991) 29 FCR 576], followed by Wilcox J in Springfield Nominees [Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217], made it clear that by ‘special circumstances’ was meant:
‘Special [features] which [afford] a reason for releasing or modifying the undertaking.’
See Holpitt (at 578-9); Springfield Nominees (at 223-5) where Wilcox J, after summarising the cases said (at 225):
‘For “special circumstances” to exist it is enough that there is a special feature of the case which affords a reason for modifying or releasing the undertaking and is not usually present. The matter then becomes one of the proper exercise of the court’s discretion, many factors being relevant. It is neither possible nor desirable to propound an exhaustive list of those factors. But plainly they include the nature of the document, the circumstances under which it 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 of 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 for leave and, perhaps most important of all, the likely contribution of the document to achieving justice in the second proceeding.’
It follows from the existence of this duty that, unless leave of the Court has been obtained, an injunction would issue to restrain use of witness statements filed in other proceedings where the facts are such as to warrant the grant of such an injunction.”[26]
[25] [1994] FCA 1314; (1994) 53 FCR 125; 124 ALR 493
[26] [1994] FCA 1314; (1994) 53 FCR 125; 124 ALR 493 at [39]-[40]; 132-133; 501.
The operation of the implied undertaking in this case
The two documents in issue in this case are the reports by Dr Brazenor and, when it is completed, by Dr Hundertmark. That of Dr Brazenor has been prepared with reference to summonsed documents. To the extent that the reports have been prepared with reference to summonsed documents, they are subject to an implied undertaking but not otherwise. The same conclusion would apply to the report of Dr Hundertmark if it is also prepared with reference to summonsed documents. If those parts of the reports that have been prepared with reference to summonsed documents cannot be separated from the rest, I would conclude that the whole of each of the reports is subject to the implied undertaking.
To the extent that the reports are not subject to the implied undertaking, Comcare may use them for purposes associated with its determining Ms Newey’s claims for compensation, be they related to the claim that led to the determination and the current reviewable decision or not, and may do so without needing to seek release from the Tribunal.
In this section of my reasons, I am considering those parts of the reports that are subject to the implied undertaking. Each report has been prepared for the purposes of the resolution of the application lodged by Ms Newey. Her application sought review of Comcare’s decision made on 20 March 2018 and affirmed on 15 May 2018 that Ms Newey was not entitled to compensation under s 16 of the SRC Act in respect of pain management and remedial therapy/massage in relation to “post-concussion syndrome, sprain of right shoulder/upper arm and right wrist, an aggravation of tinnitus, post-traumatic stress disorder and an adjustment disorder with depressed mood”.
As a party to a proceeding, Comcare (or a licensee) must be permitted to use documents lodged by the other party or parties, and documents produced on summons and which it has been given leave to inspect, for the purpose of carrying out its statutory duties and conducting itself as any other party to a proceeding in the Tribunal. As a party to the proceeding in the Tribunal, Comcare will need to consider the relative strengths and weaknesses of its case, its position in any settlement negotiations and the preparation and presentation of its case at any hearing of the application. Using the reports of Dr Brazenor and Dr Hundertmark for these purposes does not amount to using them for purposes that are collateral or ulterior to the purposes for which they have been, or will be, lodged in the Tribunal. Referring them to other specialists, for example, for the same purpose would not be a collateral or ulterior purpose. Therefore, Comcare does not need to seek waiver of the implied undertaking in these circumstances.
The purpose of Comcare’s seeking waiver is to allow its claims management area to refer to the reports in its determinations relating to Ms Newey’s claims for compensation in the form of medical treatment or payments for incapacity for work in relation to “post-concussion syndrome, sprain of right shoulder/upper arm and right wrist, an aggravation of tinnitus, post-traumatic stress disorder and an adjustment disorder with depressed mood”. Her claim led to Comcare’s making its determination on 20 March 2018 and then its reviewable decision of that determination on 15 May 2018.
Claims for medical treatment other than for pain management and remedial therapy/massage and claims for incapacity for work are quite separate from the claim that led to her making her application for review. That is so even though all of the claims could be said to arise out of the same injury that Ms Newey suffered on 4 February 2015, and it must be recognised that the scheme of compensation provided for in the SRC Act necessarily engages Comcare or a licensee in ongoing decision-making according to a claimant’s circumstances. That said, the Tribunal’s jurisdiction extends only to a matter that is the subject of a reviewable decision and in respect of which an application has been made to the Tribunal.[27] It does not extend to determinations and reviewable decisions that may be made in the future or that have been made in response to different claims for compensation in relation to the injury in respect of which a claim for compensation has been made. As the Full Court decided in Lees v Comcare:
“ The definition of ‘determination’ makes it plain that it is part of the scheme of the Act for determinations to be made under the various sections referred to therein. In particular, the definition reveals that a determination may be made under s 14 of the Act. A determination under s 14 cannot amount to more than a determination that Comcare ‘is liable to pay compensation in accordance with this Act’ in respect of a particular injury. The amount of compensation which Comcare will be liable to pay, the person or persons to whom the compensation will be payable and the time or times at which Comcare's liability will give rise to a present obligation to make payments are, as the above examination of the structure of the Act reveals, all matters to be determined under other provisions of the Act.
This is not to say that a determination under s 14 is without real significance. Such a determination will involve findings on the following matters. First, that an appropriate notice of injury has been given to the relevant authority as required by s 53 of the Act; secondly, that a claim for compensation has been made as required by s 54 of the Act; thirdly, that the person who made the claim or on whose behalf the claim was made was an "employee" at the time of the alleged injury (ss 4 and 5); fourthly, that the employee suffered an injury (s 4); and finally, that the injury has resulted in death, incapacity for work or impairment.
…
In considering the extent of the power of the AAT when reviewing decisions under the Act, it is to be noted, first, that the AAT is authorised by s 64 of the Act to review only reviewable decisions - that is, for present purposes, second tier or reconsideration decisions made under s 62 of the Act. Decisions under s 62 of the Act are the result of the reconsideration by Comcare or a licensed authority of a determination, as defined by s 60 of the Act, concerning which a claimant will have received a notice in writing setting out the terms of the determination and the reasons for the determination (s 61(1)). Secondly, it is to be noted that the powers of the AAT under s 43(1) of the AAT Act are powers ‘[f]or the purpose of reviewing’ the reviewable decision, not powers that may be exercised at large. Further, the powers and discretions that the AAT may exercise under s 43(1) are the powers and discretions conferred by the Act on the determining authority for the purposes of reconsidering a determination under s 62 of the Act. The AAT will not be authorised on review of a reviewable decision to exercise any powers and discretions which would not have been available to the determining authority at the second tier decision-making stage, albeit that such powers and discretions might have been available to the determining authority at the first tier decision-making stage.”[28]
[27] Lees v Comcare [1999] FCA 753; (1999) 56 ALD 84 at [39]; 93; Wilcox, Branson and Tamberlin JJ
[28] [1999] FCA 753; (1999) 56 ALD 84 at [34]-[35] and [39]; 91-93
It follows that, in so far as they refer to or rely on documents produced under summons in these proceedings, the reports of Dr Brazenor and Dr Hundertmark may not be used by Comcare for purposes of general claims management without first obtaining from the Tribunal release from, or modification of, the implied undertaking. Unless and until that release or modification is obtained, they may be used only for the purposes of the current proceedings.
Ms Newey’s authorisation of Comcare to obtain personal information
I do not think that the fact that, when she completed her Claim for Compensation, Ms Newey signed the authority and consent to the use of her personal information makes any difference to my conclusion. The implied undertaking relates to material whose production has been required in the Tribunal. Ms Newey’s authority applies, in part, to personal information that Comcare may collect in relation to compensable and non-compensable claims. Comcare must use that information for the purposes of the claims process for which it has collected her personal information and having regard to the requirements of the Privacy Act 1988 (Privacy Act). The two are separate. Ms Newey’s authorisation to Comcare does not detract from its implied undertaking to the Tribunal in relation to its use of the documents whose production has been required using the Tribunal’s summons power under s 40A of the AAT Act.
Differing from Chin and Oliver
For the reasons I have given, I have reached a conclusion different from those reached in Chin and Oliver. The main reason for that is the different view I take of the nature of the continuum of decision-making in which Comcare must engage under the provisions of the SRC Act and in light of the Full Court’s judgment in Lees v Comcare. It is clear from the latter that each type of compensation provided for in the SRC Act is the subject of a separate determination. When reviewed under s 62, the reviewable decision that is made entitles the claimant to apply to the Tribunal but each application is a separate proceeding.[29] Documents and material are lodged and produced in response to summonses issued in each proceeding. Each separate proceeding gives rise to the implied undertaking. The fact that each separate proceeding may hark back to a single injury or injuries arising out of the one incident does not alter the fact that the implied undertaking arises in the context of a proceeding and not in the context of the wider sequence of events leading to that proceeding.
[29] The Tribunal has a practice of “linking” applications when an applicant lodges applications for review of more than one decision by a decision-maker and there is a relationship between the subject matter of the decisions as there is in the case of reviewable decisions made on an applicant’s claim under the SRC Act. Linking applications is, however, an administrative action of the Tribunal. It does not make two or more linked files a “proceeding” for a “proceeding” is an application and not a group of applications: see definition of “proceeding” in s 3(1) of the AAT Act. Therefore, when files are linked and summonses have been issued for the purposes of one of those applications that is a proceeding, the Tribunal will have to release the parties from the implied undertaking if they wish to use the summonsed documents or things in the other application that is also a proceeding. Where appropriate, this is often done as a matter of housekeeping as is an order that the evidence given in one will be evidence in the other.
Comcare’s power to require Ms Newey to undergo a medical examination
Section 57(1) of the SRC Act provides that a relevant authority, of which Comcare is one, may require an employee, who has made a claim for compensation under s 54 or in relation to whom a notice has been given under s 53, to undergo an examination by one legally qualified medical practitioner nominated by a relevant authority. Where the employee refuses or fails, without reasonable excuse, to undergo the examination or obstructs it, his or her rights to compensation under the SRC Act and to institute or continue any proceeding in relation to compensation are suspended until the examination takes place.[30]
[30] SRC Act; s 57(2)
In so far as the reports of Dr Brazenor and Dr Hundertmark have been required by Comcare under s 57 of the SRC Act and they have not relied on summonsed material, they cannot be the subject of an implied undertaking of the sort I have been considering.[31] That implied undertaking only applies to documents produced to the Tribunal under its compulsory processes and not to those produced to a decision-maker using the compulsory powers given to it. As an agency subject to the Privacy Act, Comcare must comply with its terms and, particularly in this context, with Australian Privacy Principle 6 (APP6). Where Comcare has collected the information in the form of a report following an examination held under s 57 of the SRC Act, it must not use or disclose that information for another purpose unless one or other of two circumstances exists. One, set out in cl 6.1(a), is that the person has consented to the use or disclosure of the information. The other is that subclause 6.2 or 6.3 of APP6 applies in relation to the use or disclosure of the information. That is set out in cl 6.1(b).
[31] I am not aware whether Comcare used its power under s 57 or did not. The same conclusion applies, however, even if a relevant authority such as Comcare is not relying on its power under s 57 but is simply asking a medical practitioner for a report.
I have briefly referred to the document that Ms Newey signed authorising Comcare to collect personal information and to disclose it to those persons listed on the first page of the Claim for Workers’ Compensation form. Preceding a list that ranges from a claimant’s employer to rehabilitation manager to any person assisting Comcare with its functions or exercise of its powers to the employee’s superannuation fund manager and others in between, is a statement that reads, in part:
“… We will only collect, use or disclose your personal information in accordance with the Privacy Act 1988. If Comcare does not collect personal information from you for the purposes of assessing your claim or related functions, we may not be able to determine your claim.
Comcare is the Commonwealth agency authorised by the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) to collect personal information relevant to an injured worker’s claim for the purposes of managing the compensation claim and for the management of the injured worker’s rehabilitation and the discharge of other functions and use of other powers under the SRC Act. For those purposes, Comcare may need to collect from, use and disclose your personal information to the following parties: …”[32]
[32] T documents; T4 at 5
The acknowledgement Ms Newey signed covered similar topics in a similarly broad fashion. It is not limited to a particular claim for a particular type of compensation. She states that she understands that her personal information may be collected, used and disseminated between the parties named on the first page of the form in relation to her compensable and any non-compensable conditions. Given the breadth of variety of those to whom the information may be given, Comcare has put Ms Newey on notice that it may use her information for all aspects of the management and resolution of her claim. She has both consented to its use in that way and must be taken to have had a reasonable expectation that it would, or could, be used in that way.
The Tribunal has no part to play in determining whether Comcare may use reports it has obtained under s 57. It may be that Comcare is required to lodge them in the Tribunal by virtue of its continuing obligation under s 38AA of the AAT Act. Comcare, however, is not restricted from using those reports by virtue of its being required to lodge them in the Tribunal. The implied undertaking applies to a party who receives documents produced under compulsion by another party. It does not apply to documents the party has otherwise acquired and yet must lodge under compulsion. The qualification to that general statement is that the implied undertaking will apply if there is another reason. In this case, that other reason is that the reports of Dr Brazenor and Dr Hundertmark have been prepared using, or relying on summonsed material and so on material produced by a third party under compulsion of a summons.
Request to be released from the implied undertaking
I have found that Comcare may use the reports of Dr Brazenor and Dr Hundertmark in relation to resolving Ms Newey’s claim for compensation under s 16 of the SRC Act in respect of pain management and remedial therapy/massage in relation to “post-concussion syndrome, sprain of right shoulder/upper arm and right wrist, an aggravation of tinnitus, post-traumatic stress disorder and an adjustment disorder with depressed mood”. That is so whether they ae based on, or reveal, information gleaned from the summonsed documents or material or not.
Subject to the Privacy Act and in light of the acknowledgement and consent signed by Ms Newey, Comcare may use those parts of the reports that are not subject to the implied undertaking for the purpose of resolving her claims for compensation in respect of the injury she has suffered. Comcare, however, must seek release from the implied undertaking or its modification if it wants to use the remainder for any purpose beyond that described in the previous paragraph.
I adjourn further consideration because the focus of the proceeding to date has been on whether the implied undertaking applied at all. The focus has not been upon the issue that arises when the implied undertaking applies i.e. whether or not it should be waived in the circumstances of this case.
| I certify that the preceding forty two (42) paragraphs are a true copy of the reasons for the decision herein of Deputy President S A Forgie |
[sgd]..................................................................
Associate
Dated: 9 July 2019
| Heard by telephone: | 20 May 2019 |
Solicitor for the Applicant: | Mr Larry Dent, Arnold Thomas & Becker |
| Solicitor for the Respondent: | Mr Andrew Vas, Comcare |
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