Legal Research
Cases
Newey and Comcare (Compensation)

Newey and Comcare (Compensation)

Case [2019] AATA 1772 9 July 2019

Type to search within this case.

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…

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 Newey and Comcare (Compensation)

Details

AGLC: Newey and Comcare (Compensation) [2019] AATA 1772
Case: [2019] AATA 1772
Decision Date: 9 July 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application by Mr. Newey for the release of documents that had been obtained by Comcare in connection with a previous workers' compensation claim. Mr. Newey sought to use these documents in separate proceedings against his former employer. The central dispute concerned whether the implied undertaking of confidentiality that attaches to documents produced in legal proceedings should be lifted to permit their use in the new litigation.

The Tribunal was required to determine whether the documents in question were subject to the implied undertaking and, if so, whether the circumstances warranted the release of those documents. Specifically, the Tribunal had to assess whether the proposed use of the documents was collateral or ulterior to the purpose for which they were originally obtained.

The Tribunal reasoned that the implied undertaking of confidentiality is a fundamental principle of the administration of justice, designed to encourage full disclosure of relevant material in legal proceedings. It held that this undertaking applies to documents produced in the course of litigation, including those obtained by a statutory authority like Comcare. In considering whether to lift the undertaking, the Tribunal applied a balancing exercise, weighing the public interest in maintaining the confidentiality of documents against the public interest in the administration of justice in the new proceedings. The Tribunal found that the proposed use of the documents by Mr. Newey was collateral to the original workers' compensation proceedings and that there was no sufficient reason to depart from the general rule that such documents should not be used for other purposes.

Consequently, the Tribunal dismissed Mr. Newey's application for the release of the documents.

Orders