NWCB and National Disability Insurance Agency
[2020] AATA 4555
•9 November 2020
NWCB and National Disability Insurance Agency [2020] AATA 4555 (9 November 2020)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number: 2020/1287
Re:NWCB
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
File Number: 2020/1014
Re:ZFND
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
File Number: 2020/4046
Re:GXFS
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Deputy President S A Forgie
Date of decision: 9 November 2020
Place:Melbourne
The Tribunal decides that:
1.NWCB and NDIA 2020/1287
(1)The Agency’s request to be released from an implied undertaking in relation to a report of Dr Oriella Cattapan, Clinical Psychologist, dated 23 August 2020 is refused on the basis that the Agency is not subject to an implied undertaking not to use it for purposes not connected with these proceedings No. 2020/1287.
2.ZFND and NDIA 2020/1014
(1)The Agency’s request to be released from an implied undertaking relating to the records produced under summons from the following:
Dr David Wallace, neurosurgeon; Dr Yagnesh Vellore, neurosurgeon and spine surgeon; Dr Martin Richardson, orthopaedic surgeon; Dr Stephen de Graff, Director – Pain Services; Ms Joan Hamilton-Roberts, counselling psychologist; and Dr Jeremy Russell, neurosurgeon
is granted to enable it to use the documents for the purposes of assessing the applicant’s entitlements under the NDIS Act.
(2)The Agency’s request to be released from an implied undertaking in relation to six documents numbered “a” to “g” in a letter to the Tribunal dated 5 October 2020 is refused on the basis that the documents are not subject to an implied undertaking for purposes not connected with these proceedings 2020/1014.
3.GXFS and NDIA 2020/4046
(1)The Agency’s request to be released from an implied undertaking in relation to reports of Dr Weintrob dated 25 September 2020, Professor Berkovic dated 19 May 2020 and 22 September 2020 and of Dr O’Shea dated 13 January 2020 is refused on the basis that the Agency is not subject to an implied undertaking not to use them for purposes not connected with these proceedings No. 2020/4046.
……………[sgd]…………………..
Deputy President S A Forgie
Catchwords
PRACTICE AND PROCEDURE – implied undertaking – power of Tribunal to waive implied undertaking – meaning of Part 5 of the General Practice Direction made under s 18B of the Administrative Appeals Tribunal Act 1975 – whether production of documents compelled – implied undertaking waived were documents where production of documents compelled
Legislation
Administrative Appeals Tribunal Act 1975; s 18B; s 33(2); s 37; s 38AA
Cases
Australian Competition and Consumer Commission v Cadbury Schweppes Pty Ltd [2009] FCAFC 32; (2009) 174 FCR 547; 254 ALR 198
Complete Technology Pty Ltd v Toshiba (Australia) Pty Ltd (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
Hong Ye v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 468; 153 ALR 327; 55 ALD 358
Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3, 218 ALR 283
Minister for Immigration v SZMTA [2019] HCA 3; (2019) 264 CLR 421; 363 ALR 599; 93 ALJR 252; 163 ALD 38; 75 AAR 75
Otter Gold Mines Ltd v McDonald [1997] FCA 694; (1997) 76 FCR 467; 147 ALR 322; 25 AAR 276; 48 ALD 222
Perazzoli v BankSA, a division of Westpac Banking Corporation Limited [2017] FCAFC 204
Prudential Assurance Co v Fountain Page [1991] 3 All ER 878; 1 WLR 756
REASONS FOR DECISION
Deputy President S A Forgie
These are but three of the cases in which the National Disability Insurance Agency (Agency) has asked the Tribunal to waive an implied undertaking in relation to certain documents that have been lodged in the proceedings or produced to the Tribunal under summons. Each case is a little different but this case is representative of the issues that have arisen in cases in the Tribunal’s National Disability Insurance Scheme Division. In several, the Agency has withdrawn its request after I have drawn to its attention that none of the documents has been lodged under compulsion or produced on summons so that none is the subject of an implied undertaking. I have taken three of the most recent cases in which the Agency, either directly or through its solicitors, has asked the Tribunal to make a decision under s 42C of the Administrative Appeals Tribunal Act 1975 (AAT Act) followed by the Agency’s asking the Tribunal to make an order waiving an implied undertaking. No hearings were held in any of the cases and so none of the documents was admitted in evidence. I will set out my reasons for the orders I have made after seeking the Agency’s views on particular documents in Re ZFND and National Disability Insurance Agency (ZFND). I have not done so in Re NWCB and National Disability Insurance Agency (NWCB) or in Re GXFS and National Disability Insurance Agency (GXFS) as the issues they raise are no different from those in ZFND or in the earlier cases I have raised with the Agency.
What is the implied undertaking?
General principles
Some applications are finalised very soon after they are lodged where, for example, the Tribunal does not have jurisdiction or the parties were already on the brink of reaching an agreement as to the decision that should be made. Most are not and become subject to the Tribunal’s preliminary procedures. Those procedures are directed to ensuring that the parties are prepared to engage in settlement negotiations between themselves at an early stage. In the course of preparing for those or for engaging in conferences or preliminary proceedings in the Tribunal, the parties will usually lodge various documents including Statements of Facts Issues and Contentions (SFIC) and documents, including affidavits or statements, medical reports, expert reports and other primary documents, that are intended to be evidence relevant to the issues to be decided. The obligation imposed by s 37 of the AAT Act is an important part of this for, among other things, it requires a decision-maker to lodge every document that is in his or her control and that is relevant to the review of the decision.[1] By virtue of s 38AA of the AAT Act, a decision-maker has an ongoing obligation to lodge such documents when they come into possession of documents that are relevant to the review.[2]
[1] AAT Act; s 37(1)(b)
[2] When documents are produced by a third party under summons, the parties to the application are generally permitted to copy those documents. That means that copies of the documents will come into the possession of the decision-maker, who will be subject to the obligation to lodge imposed by s 38AA. Despite that, I suggest that they do not lose their character as summonsed documents for there continue to be obligations of non-disclosure continue to the third parties, who produced the documents under summons.
In some instances, they do this of their own accord and to support the case or point they wish to make. They may even have done so in support of the application for review. In many instances, they will do so in accordance with a direction given in the particular proceeding or in accordance with the general directions given in the General Practice Direction made under s 18B of the AAT Act and dated 28 February 2019 (GPD). The parties may also ask the Tribunal to issue one or more summonses addressed to third parties requiring them to produce documents or other things specified in the summons. Subject to objections, which are not relevant in this context, third parties upon whom those summonses are served will produce the documents or things to the Tribunal. The Tribunal may give the parties leave to inspect the documents or things.
At the hearing, the parties may, or may not, tender documents that are of an evidentiary nature whether they have been lodged by the parties or produced to the Tribunal on summons. If they do and the Tribunal admits them into evidence, they will become part of the evidence just as the oral evidence given by witnesses becomes part of the evidence.
While it is possible that the atmosphere may be a little less formal and there is no place for pleadings in the Tribunal, essentially the procedures leading to a hearing in the Tribunal and the hearing itself is reminiscent of a hearing in a civil court. In a civil court, the use that may be made of documents lodged and filed in a proceeding was explained by Mason CJ, with whom McHugh and Dawson JJ agreed in Esso Australia Resources Ltd v Plowman:[3]
“ In relation to documents produced by one party to another in the course of discovery in proceedings in a court, there is an implied undertaking, springing from the nature of discovery, by each party not to use any document disclosed for any purpose otherwise than in relation to the litigation in which it is disclosed …. Over a century ago, Bray on Discovery (74) stated:
‘A party who has obtained access to his adversary's documents under an order for production has no right to make their contents public or communicate them to any stranger to the suit ... nor to use them or copies of them for any collateral object ... If necessary an undertaking to that effect will be made a condition of granting an order.’
Because an undertaking is implied, it has not been the practice to condition the making of orders in that way. The implied undertaking 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 compeIled by court process to produce private documents for the purposes of the litigation yet be exposed to publication of them for other purposes. No doubt the implied obligation must yield to inconsistent statutory provisions and to the requirements of curial process in other litigation, eg discovery and inspection, but that circumstance is not a reason for denying the existence of the implied obligation.”[4]
[3] [1995] HCA 19; (1995) 183 CLR 10; (1995) 128 ALR 391; Mason CJ, Brennan, Dawson and McHugh JJ; Toohey J dissenting
[4] [1995] HCA 19; (1995) 183 CLR 10; (1995) 128 ALR 391 at 32-33; 403
Access to documents that have not become part of the evidence is a different matter. There are limits placed upon their use and they were delineated by the High Court in Hearne v Street[5] by Hayne, Heydon and Crennan JJ:
“Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise …, to disclose documents or information, the party obtaining the disclosure cannot, without leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence. The types of material disclosed to which this principle applies include documents inspected after discovery …, answers to interrogatories …, documents produced on subpoena …, documents produced for the purposes of taxation of costs …, documents produced pursuant to a direction from an arbitrator …, documents seized pursuant to an Anton Piller order …, witness statements served pursuant to a judicial direction … and affidavits …”[6]
[5] [2008] HCA 36; (2008) 235 CLR 125; 248 ALR 609; Gleeson CJ, Kirby, Hayne, Heydon and Crennan JJ
[6] [2008] HCA 36; (2008) 235 CLR 125; 248 ALR 609 at [96]; 154-155; 632
In Complete Technology Pty Ltd v Toshiba (Australia) Pty Ltd,[7] Hill J adopted a description of the obligation from the judgment of Hobhouse J in the earlier case of Prudential Assurance Co v Fountain Page:[8]
“ 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.”[9]
[7] (1994) 53 FCR 125; 124 ALR 493 at 132; 501
[8] [1991] 3 All ER 878; 1 WLR 756
[9] [1991] 3 All ER 878; 1 WLR 756 at 885, 764 See also Australian Competition and Consumer Commission v Cadbury Schweppes Pty Ltd [2009] FCAFC 32; (2009) 174 FCR 547; 254 ALR 198 at [47]; 558; 207; Mansfield, Kenny and Middleton JJ
These principles have been found to be equally applicable in the Tribunal. In Otter Gold Mines Ltd v McDonald[10] Sundberg J considered the appellant’s submission that the implied undertaking applicable to documents disclosed in court proceedings does not apply to documents disclosed before the Tribunal. Underlying the submission was an argument that the foundation of the implied undertaking in court proceedings is the court’s inherent power to prevent abuse of its process. There can be no implied undertaking in the Tribunal because it has no power to enforce the undertaking either by injunction or in proceedings for contempt of court.
[10] [1997] FCA 694; (1997) 76 FCR 467; 147 ALR 322; 25 AAR 276; 48 ALD 222
In rejecting the submission, Sundberg J observed that it has been accepted in Complete Technology Pty Ltd v Toshiba (Australia) Pty Ltd that the implied undertaking exists in the Federal Court and by Brennan J in Esso Australia Resources Ltd v Plowman.[11] That is so even though it is a creature of statute and does not have inherent power or the facilities to prevent abuse of its own process. The reasons for its existing despite its lacking those inherent powers lies in the fact that:
“ The true basis of the implied undertaking lies in the fact that the documents, whether produced on discovery, subpoena or under any other order of the court, are produced under compulsion. …”[12]
[11] [1995] HCA 19; (1995) 183 CLR 10; (1995) 128 ALR 391 at 37; 407
[12] [1997] FCA 694; (1997) 76 FCR 467; 147 ALR 322; 25 AAR 276; 48 ALD 222 at 472; 328; 280; 226
Documents produced to the Tribunal in response to a summons issued under s 40 of the AAT Act are produced under compulsion. That is so because failure to comply with a summons without reasonable excuse is, under s 61(1)(b), an offence and also an offence under s 63(2) on the basis that the failure would, if the Tribunal were a court of record, constitute a contempt of court. Therefore the implied undertaking of confidentiality applies to documents produced to the Tribunal by compulsion. There is necessarily attached to the power to require production of documents, a power to release from that implied undertaking of confidentiality. It:
“… is incidental to the power to require the 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.”[13]
[13] [1997] FCA 694; (1997) 76 FCR 467; 147 ALR 322; 25 AAR 276; 48 ALD 222 at 473; 328; 281; 227
In summary and assuming that the Tribunal has not made an order under s 35(2) of the AAT Act, the transcript of oral evidence given and documentary or other evidentiary material that is admitted in evidence during a hearing held by the Tribunal to review a decision made by the Agency is available to the public. It may be used by the parties or by others in other proceedings or otherwise.
Again in summary, documentary or other evidentiary material that has not been admitted in evidence by the Tribunal but that has been produced to it either by the parties, when required by a direction or order of the Tribunal or by an enactment, including the AAT Act, or by third parties when given a summons issued by the Tribunal, may not be used by the party who did not produce it or, in the case of documents produced on summons, by any party, without leave of the Tribunal. If, however, the contents of such a document, or some of them, have been revealed during the course of the proceedings by a witness or in other evidence, the implied undertaking will not apply to that which is revealed even though it is also to be found in the document, to which an implied undertaking applies.[14]
[14] Perazzoli v BankSA, a division of Westpac Banking Corporation Limited [2017] FCAFC 204; Perram, Foster and Murphy JJ at [287]-[288]
General Practice Direction
Under s 18B of the AAT Act, the President may give written directions regarding the Tribunal’s operations, its procedure of the Tribunal, its conduct of reviews, the arrangements of its business and the places at which it may sit.[15] Part 5 of the GPD applies to all of the Tribunal’s Divisions other than the Migration Review Division (MRD). In relation to an implied undertaking, it states:
[15] AAT Act; s 18B(1)
“5.2 If you or the decision-maker have obtained a document provided under compulsion in an application before the AAT, you, the decision-maker and any person to whom the document is given, by implication, undertake to the AAT that the document will not be used for any purpose other than the purpose for which it was given to us unless:
(a)the document was received in evidence by us in the application and the confidentiality of the document is not protected by an order under section 35 of the AAT Act or by another statutory provision; or
(b)we give you or the decision-maker permission to use the document for another purpose.
5.3 Documents to which the implied undertaking applies include:
(a)documents lodged under section 37 or 38AA of the AAT Act;
(b)documents lodged pursuant to a direction given by us (for example, expert reports or witness statements); and
(c)documents produced in response to a summons issued by us.
5.4The implied undertaking continues even after an application has been finalised. Breach of the implied undertaking by using the documents for another purpose may constitute a criminal offence under section 63 of the AAT Act on the basis that it could, if the AAT were a court of record, constitute a contempt of court.”
It is important to read [5.3] with [5.2]. Only those persons who have received the documents described in [5.3] are subject to an implied undertaking. Those who have lodged or produced them to the Tribunal under compulsion are not.
Putting aside for the moment the use of documents in other applications made by the same applicant in the Tribunal and heard together, the GPD goes on to address the use of documents in any other circumstances:
“5.6 If you or the decision-maker want to use a document for another purpose, including a document that was given to us in an application that has been finalised, you or they must apply to us for leave to be released from the implied undertaking. The request must:
(a)be in writing;
(b)specify with particularity the documents in relation to which release is sought;
(c)tell us clearly why you want the release and who will use the documents; and
(d)if possible, specify whether or not the person to whom the documents relate consents to the release from the implied undertaking.
5.7Unless you or the decision-maker believes it is not necessary or appropriate, a copy of the request must be sent to the other party or parties to the application in which the documents were originally provided. We might require you or the decision-maker to give a copy of the request to another party or other person if we think it is appropriate.
5.8We will determine whether to decide the request on the papers or by holding a hearing before making a decision.”
Waiver of the implied undertaking
In Liberty Funding Pty Ltd v Phoenix Capital Ltd,[16] the Full Court of the Federal Court considered the circumstances in which a party will be released from an implied undertaking. The Court said:
[16] [2005] FCAFC 3, 218 ALR 283; Branson, Sundberg and Allsop JJ
“ In order to be released from the implied undertaking it has been said that a party in the position of the appellants must show ‘special circumstances’: see, for example, Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217; 110 ALR 685. It is unnecessary to examine the authorities in this area in any detail. The parties were not in disagreement as to the legal principles. 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. In Springfield Nominees, Wilcox J identified a number of considerations which may, depending upon the circumstances, be relevant to the exercise of the discretion. These were:
· 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 in to the hands of the applicant; and
· most importantly of all, the likely contribution of the document to achieving justice in the other proceeding.”[17]
[17] [2005] FCAFC 3, 218 ALR 283 at [31]; 289-290
With one reservation, these considerations would seem directly relevant to the exercise of the power to waive an implied undertaking applying to a party in respect of documents lodged in, or produced to, the Tribunal under compulsion. My reservation relates to the final consideration. Certainly, that consideration is relevant when the person seeking waiver is engaged in another proceeding in the Tribunal or in a court. Given that the Tribunal is part of the executive arm of government, it is also relevant to consider whether the document would contribute to achieving a correct or preferable decision at the primary level and not merely in merits review proceedings in the Tribunal or that it would contribute to achieving justice in court proceedings. In any event, relevant considerations must be identified in each case and assessed and weighed in the context of each.
That brings me to [5.5] of the GPD, which states:
“Subject to any other direction we may make, either at the request of a party or of our own motion, documents that have been given to us in one application can be used in another application if:
(a)the applications have been lodged by the same applicant and are currently before the AAT; and
(b)we have decided that these applications should be dealt with together.
Except to the extent identified here, you and the decision-maker are not released from the implied undertaking in relation to the documents.”
An implied undertaking is an obligation that arises by operation of the general law is not, in my view, a matter related to the procedure of the Tribunal or to its operations. Therefore, the power to make the direction in [5.5] of the GPD does not lie in ss 18B(1)(a) or (b). Does it lie in s 18B(1)(c)? That authorises the President to give written directions in relation to the “conduct of reviews” by the Tribunal.[18] The ordinary meanings of the word “conduct” in this context are “to manage; to control”.[19] What does it mean to conduct a review? In Minister for Immigration v SZMTA[20] (SZMTA), Bell, Gageler and Keane JJ said in the context of a review under Part 7 of the Migration Act 1958 (Migration Act):
“ Amongst the obligations to be observed by the Tribunal in the conduct of the review which are implied through the operation of common law principles of interpretation, however, is an obligation to act reasonably considering and exercising procedural powers expressly conferred on the Tribunal by other provisions within Div 4 of Pt 7 …
…
Amongst other obligations to be observed by the Tribunal in the conduct of the review which are implicit in the scheme of Pt 7 is the obligation to reconsider the merits of the decision under review ‘in light of the information, evidence and arguments which are relevant to the application and which are provided to it or which it obtains for itself’ … That obligation is fundamental to the nature of the review for which Pt 7 provides. …”[21]
[18] Care must be taken when interpreting the President’s power to give directions under s 18B and the power given to make directions under s 33(2). Under s 18B(1), directions may be made in relation to the “operations of the Tribunal”, “procedure in the Tribunal” and “conduct of reviews by the Tribunal” (emphasis added). The power is not directed to a particular proceeding in the Tribunal. The power to give directions in a particular proceeding is to be found in s 33(2) but it is a power more limited in its scope than that given in s 18B(2). It is a power limited to giving “directions as to the procedure to be followed at or in connection with the hearing of a proceeding before the Tribunal …” (emphasis added).
[19] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers (Chambers)
[20] [2019] HCA 3; (2019) 264 CLR 421; 363 ALR 599; 93 ALJR 252; 163 ALD 38; 75 AAR 75; Bell, Gageler; Nettle and Gordon JJ
[21] [2019] HCA 3; (2019) 264 CLR 421; 363 ALR 599; 93 ALJR 252; 163 ALD 38; 75 AAR 75 at [11]-[13]; 435-436; 604; 258-259; 43; 81
Arguably, then, [5.5] of the GPD might be said to relate to the review of the conduct of reviews by the Tribunal. It relates to documents, to which the Tribunal may have regard in reviewing a decision. That said, the next question is to identify the documents, to which it is referring. The reference to “documents that have been given to us” does not differentiate between whether the documents have been given to the Tribunal under compulsion whether by being lodged by a party as required by an enactment or by a direction or produced under a summons.
If the documents have not been lodged or produced under compulsion, there is nothing remarkable about the direction. If the documents had been produced under compulsion, the implied undertaking would come into consideration. Paragraph 5.5 does not use the language of waiving the implied undertaking nor of release of one party or the other from that implied undertaking. That language is only used in the final sentence but that does not clarify the first sentence.
Given that the consequences of using a document subject to an implied undertaking, I respectfully suggest that it would be prudent for the Tribunal either to consider the exercise of its power to waive or release when proceedings are to be heard together or to make an order that the evidence in one proceeding is evidence in another.
NWCB
The paragraphs I have referred to from the GPD set out the law relating to an implied undertaking and to procedures that may be followed should a party wish the implied undertaking to be waived so that he or she may use a particular document or documents for use other than in the proceedings in which they were lodged by the parties or produced under summons by a third party. What they do not do is either impose an implied obligation of confidentiality on the parties or confer power upon the Tribunal to waive that obligation.
It follows that it is, therefore, inappropriate for the parties to express themselves in the following way when seeking release from the implied undertaking:
“The parties seek leave of the Tribunal to be released from the implied undertaking under Part 5 of the Tribunal’s General Practice Direction given under s 18B of the Administrative Appeals Tribunal Act 1975 (Release), in respect of the following documents.
a.Report of Dr Oriella Cattapan. Clinical Psychologist, dated 23 August 2020.
The Release is sought for the Respondent to use the above documents which relate to the Applicant for the purpose of administering the National Disability Insurance Scheme Act 2013 and the Applicant consents to the Release for this purpose.”[22]
[22] Terms of Agreement – Release from Implied Undertaking lodged on 8 October 2020
Had Dr Cattapan’s report been lodged by compulsion, the undertaking and any power to waive that undertaking would arise under the general law as a consequence of the fact that it had been lodged by compulsion. Neither arises under Part 5 of the GPD and reference should not be made to it in any sense that suggests that it is a source of either the obligation or of the power to waive. It is not.
The second thing to note is that Dr Cattapan’s report was lodged by NWCB’s solicitor on 31 August 2020. Although both NWCB and the Agency have asked for waiver of an implied undertaking, if I were to look simply at the fact it was lodged on NWCB’s behalf by her solicitor, I would conclude that there was no basis for finding that the report is subject to an implied undertaking. There is no basis for there was no compulsion to lodge the report. No directions had been made in the proceedings regarding lodgement of relevant material and there is no general direction to that effect to be found in the to do so and the Practice Direction dated 30 June 2015 and entitled “Review of National Disability Insurance Scheme Decisions” or in the COVID-19 specific direction dated 27 April 2020 and entitled “COVID-19 special measures practice direction – National Disability Insurance Scheme”. Without its appearing to have been lodged under compulsion, I would have concluded that the Agency was not subject to an implied undertaking of confidentiality and could use the report of Dr Cattapan in the course of its considering NWCB’s entitlements under the NDIS Act. NWCB was never under any implied undertaking as Dr Cattapan’s report was her document. Therefore, on the face of things as presented in the terms of agreement and in the covering email sent by the Agency, I would have concluded that there is no basis for waiving any implied undertaking of confidentiality for there is none to waive.
Things, however, are not as they appear on their face. At the beginning of her report, Dr Cattapan wrote that, in preparing her report, she had perused 11 documents that she identified by reference to author and date. As no summonses were issued, I have checked the documents to which Dr Cattapan referred against the documents lodged in the Tribunal. None was lodged as an individual document by either party but the following four were lodged by the Agency as part of the documents it was obliged to lodge under s 37 of the AAT Act (T documents):
(1)National Disability Insurance Scheme, Report Internal review (s 100) of access decision (s 20), Reviewed by Dana (DHS603), 13 February 2020 (T documents; T1B);
(2)Letter, NDIS, to NWCB, Result of your NDIS Access Request, undated (T documents; T2);
(3)Letter, To Whom It May Concern, Dr Oriella Cattapan, 21 November 2019 (T documents; T60); and
(4)Letter, To the NDIS Assessor, Dr Oriella Cattapan, 9 February 2020 (T documents; T67).
The T documents are subject to an implied undertaking for the reasons I have already given. If he did, it would have been entirely appropriate for NWCB’s solicitor to refer all or some of the T documents to Dr Cattapan to peruse before preparing her report and to assist her in preparing it for the purposes of the proceedings. Arguably, Dr Cattapan’s report would be subject to an implied undertaking if it was prepared having regard to summonsed documents. The Agency might not use it for purposes other than those connected with the proceeding unless it were released from the implied undertaking by the Tribunal’s waiving it.
That, however, would not seem to be the position in this case. Although the four documents appear in the T documents and I have identified them above, there is no evidence that NWCB’s solicitor used the copies of the documents in the T documents as part of his brief to Dr Cattapan. Given that two of the documents were the Agency’s decision and reasons for decision sent to NWCB and given that Dr Cattapan’s two earlier reports were written on her behalf but not addressed to the Agency, I find that Dr Cattapan would have provided copies of those reports to NWCB. On the balance of probabilities, they are likely to be the copies of the reports perused by Dr Cattapan and not those in the T documents for she makes no reference to the T documents Therefore, I am not satisfied that Dr Cattapan’s report referred to any material that was subject to an implied undertaking by reason of its referring to material that was.
The Agency is not subject to any implied undertaking in relation to Dr Cattapan’s report for NWCB’s solicitors did not lodge it under compulsion. The Tribunal had not given any directions to the parties at all regarding lodgement of material at all. Therefore, I refuse the Agency’s request to be released for there is no implied undertaking to waive or to release the Agency from. The Agency is free to use Dr Cattapan’s report dated 23 August 2020 in fulfilling its responsibilities under the NDIS Act.
ZFND
ZFND applied to the Tribunal for review of the Agency’s refusal of her request to become a participant of the NDIS. The parties have agreed that she is entitled to be a participant and I have made a decision to that effect. On 5 October 2020, the Agency’s solicitors wrote to the Tribunal requesting, with ZFND’s consent, that the Tribunal release it from the implied undertaking in relation to two separate sets of documents. In the first set were the following documents:
“a. Report of Jeremy Russell, neurosurgeon, dated 11 May 2020,
b.Applicant’s statement of lived experience (undated),
c.Respondent’s briefing letter to Ms Kelsey Pringle, occupational therapist, dated 16 April 2020,
d.Report of Ms Kelsey Pringle, occupational therapist, dated 11 June 2020,
e.Resume of Ms Kelsey Pringle, undated,
f.Respondent’s briefing letter Ms Kelsey Pringle, for supplementary report, dated 18 June 2020, and
g.Supplementary report of Ms Kelsey Pringle, occupational therapist, dated 10 July 2020.”
The Agency said of these seven documents:
“We appreciate that the documents listed at items … (a) to (b) above that the Applicant may not have been compelled to lodge these documents. We also appreciate that the implied undertaking in relation to the documents listed at …(c) to (g) above applies to the Applicant, being the party who obtained disclosure of those documents. However, for abundant caution, the Respondent respectfully requests that the Tribunal releases the Respondent from the implied undertaking in relation to the documents.”
After I queried whether the implied undertaking arose in relation to some of the documents, the Agency advised that it “… no longer requests that the Tribunal releases the Respondent from the implied undertaking in relation to …” ZFND’s statement of lived experience, its briefing letter dated 16 April 2020 to Ms Pringle or to Ms Pringle’s resumé. I take it from this that the Agency considers that it is not subject to an implied undertaking in relation to these three documents but that it is in relation to the remaining four.
ZFND was not compelled to give to the Agency the report of Dr Jeremy Russell, neurosurgeon, dated 11 May 2020 but she did. I note that Mr Russell’s report is addressed to ZFND at her home address and ZFND sent a copy to the Agency. The Agency then lodged a copy of that same report with the Tribunal acknowledging that it had received it from ZFND. Even though Dr Russell’s report also appears in the documents he produced to the Tribunal in response to a summons served on him, I think it more probable than not that ZFND lodged a copy of the report as sent to her by Dr Russell and not a copy taken from the summonsed material. There was no direction that she do so but she chose to do so in support of her case just as she lodged a statement of her lived experience. Therefore, no implied undertaking arises in relation to the report. ZFND has always been free to use it for other purposes but so too has the Agency.
I realise that the consequences of using a document that is subject to an implied undertaking for purposes other than those in connection with the proceeding are serious matters but the Tribunal cannot be asked to exercise powers “for abundant caution”. That is the equivalent of asking it to given an advisory opinion and that falls outside the powers of the Tribunal. The Tribunal’s power to waive or to release a party from an implied undertaking is dependent upon there being an implied undertaking. If there is no implied undertaking, there is nothing to waive or release but it is not for the Tribunal to wade through the documents in every case and, in effect, work out for the Agency whether it should be asking the Tribunal to release it from an implied undertaking or not.
The Agency also requested waiver or release for Ms Kelsey’s two reports as well as its two briefing letters to her. These were all documents it lodged in the proceedings. It had not done so in response to any direction made by the Tribunal for there was none made. Arguably, though, it was compelled to lodged them under its continuing obligation imposed by s 38AA of the AAT Act. Even so, the Agency is not under any implied undertaking in relation to documents it has lodged under compulsion or otherwise. Given that they were arguably lodged under s 38AA, ZFND would be under an obligation not to use them for any purpose other than those connected with the current proceedings. I will come to her position shortly but, for the moment, I reach the same conclusion as I have in relation to the first two documents: there is no implied undertaking attaching to those documents as far as the Agency is concerned and so no implied undertaking to waive or from which to release the Agency.
The Agency has also sought release from the implied undertaking in relation to documents produced to the Tribunal by six people. I agree that the implied undertaking applies to those documents including the copy of the Mr Russell’s report dated 11 May 2020 that is included among them. That does not alter my view about the entirely separate copy of Mr Russell’s report lodged by ZFND and which is not subject to an implied undertaking.
The Agency wishes to use the summonsed material in connection with its development of a participant’s plan for ZFND. I note that ZFND consents to its doing so. Apart from Mr Russell’s report dated 11 May 2020, the summonsed material has not generally been prepared for the purposes of this particular proceeding but it has been prepared in the course of ZFND’s medical care and health care generally. They are relevant to the preparation of her participant’s plan in that they will provide an insight into understanding what are reasonable and necessary supports within the meaning of s 34 of the NDIS Act and particularly in identifying the supports that will assist her to pursue her objectives and aspirations. Given that the documents were summonsed in the context of a proceeding, to which the Agency is a party, I would expect that the health professionals would expect that their documents would be likely to be used generally for determining ZFND’s entitlements under the NDIS Act.
In this case, I consider that the Agency should be released from the implied undertaking in relation to the summonsed documents. Therefore, I have decided to release the Agency from the implied undertaking relating to the records produced under summons from the following: Dr David Wallace, neurosurgeon; Dr Yagnesh Vellore, neurosurgeon and spine surgeon; Dr Martin Richardson, orthopaedic surgeon; Dr Stephen de Graff, Director – Pain Services; Ms Joan Hamilton-Roberts, counselling psychologist; and Dr Jeremy Russell, neurosurgeon. I have released the Agency to enable it to use the documents for the purposes of assessing ZFND’s entitlements under the NDIS Act. ZFND has not requested release but she may wish to use the summonsed material in her future dealings with the Agency relating to her participant’s plan. Those dealings will not be connected with these proceedings for they were limited to whether or not she was entitled to be a participant in the NDIS. Should she wish to do that, she would need to request release.
In relation to the documents numbered from “a” to “g” at [30] above, I am not satisfied that the Agency is subject to an implied undertaking. Therefore, I find that I have no power to release it.
GXFS
A. The agreement between the parties relating to the implied undertaking
The Agency lodged a document entitled “Terms of Agreement as to Implied Undertaking” (Implied Undertaking Terms of Agreement) signed on behalf of GXFS on 21 October and on its behalf on 28 October 2020. It stated:
“1. The Applicant and the Respondent apply to the Tribunal for the Respondent to be released from the implied undertaking under Part 5 of the General Practice Direction given under section 18B of the Administrative Appeals Tribunal Act 1975 in respect of all documents filed in this application.
2.The release is sought for the Respondent to use the documents for the purposes of administering the National Disability Insurance Scheme Act 2013 in respect of the Applicant.”
B.The Agency’s request to the Tribunal relating to the implied undertaking
Also on 28 October 2020, solicitors acting on behalf of the Agency wrote to the Tribunal enclosing the terms of agreement under s 42C and requesting:
“… that the Tribunal releases the respondent from the implied undertaking in relation to the following documents:
«Report of Dr Weintrob (neuropsychologist) dated 25 September 2020;
«Reports of Professor Berkovic (neurologist) dated 19 May and 22 September 2020; and
«Report of Dr O’Shea (neuropsychologist) dated 13 January 2020.
The respondent makes the following submissions in support of this request:
1.Paragraphs 5.2 to 5.8 of the Tribunal’s General Practice Direction address procedures related to the implied undertaking. If a document is provided under compulsion during a Tribunal proceeding, including documents lodged pursuant to a Tribunal direction, or documents produced in response to a summons, the person who has received that document (being the person who has obtained the disclosure of the document) from the person who provided it, undertakes to the Tribunal to not use it for any purpose other than the purpose for which it was provided.
2.The Tribunal has authority to a grant release from the implied undertaking. The Tribunal’s power to release documents from the implied undertaking its incidental to the power to require the documents to be produced. Production under compulsion gives rise to the undertaking. The power to release is intrinsically associated with that undertaking.
3.Paragraph 5.3(a) of the General Practice Direction states that documents to which the implied undertaking applies include documents lodged under ss 37 and 38AA of the Administrative Appeals Tribunal Act 1975 (AAT Act).
4.The respondent submits that the report of Professor Berkovic dated 19 May 2020 and report of Dr O’Shea dated 13 January 2020 were filed pursuant to s 37 of the AAT Act, and on that basis, the respondent submits the implied undertaking applies to those documents.
5.The recent reports of Professor Berkovic and Dr Weintrob from September 2020 were filed by the applicant pursuant to s 38AA of the AAT Act, that is, to satisfy the ongoing requirement to lodge material documents with the Tribunal, and on that basis, the respondent submits the implied undertaking applies to these documents.
6.The respondent has made this request out of abundant caution, however if the Tribunal disagrees and considers that the implied undertaking does not apply to the four reports (for reasons such as, that those documents were not provided under compulsion or that they do not refer to the summonsed records), for avoidance of doubt, we seek an order to confirm that the implied undertaking does not apply to those documents and therefore a release is not required.
The applicant’s representative consents to the respondent’s request and has been provided with a copy of this letter.
…”
C. GXFS’s concerns regarding the implied undertaking
On behalf of GXFS, Ms Horton wrote to the Tribunal on 21 October 2020 in the expectation that the Agency would shortly lodge the Implied Undertaking Terms of Agreement she had signed on GXFS’s behalf. Initially, Ms Horton wrote, she had refused to sign the agreement as she:
“… did not believe the implied undertaking was relevant to the documents in question. The documents were sent to the AAT, the external NDIA lawyers and NDIA staff during the case conference process. They were not provided under compulsion. I informed the external NDIA lawyer that I did not think it necessary that I sign it but he informed me that his instructions were very clear that it needed to be signed.
The applicant has been dealing with the NDIA in regards to this matter for a number of years. The applicant is thrilled to finally have the end in sight. In these circumstances, I signed the terms. However, I was wondering if it may be possible to get some instruction from the AAT about whether in circumstances where the documents in question have not been provided under compulsion and where they have been sent to NDIA staff whether the implied undertaking is actually enlivened.
…”
D.General issues
I have set out general principles relating to implied undertakings above. In the context of this particular case, I make the observation that the implied undertaking arises under the general law. As the opening words to Part 5 of the GPD say, the “procedures” set out in that Part apply to all Divisions other than the Migration and Refugee Review Division. It does not set out substantive law and nor may it under s 18B of the AAT Act. Therefore, the parties can ask to be released from an implied undertaking but cannot ask to be released “… from the implied undertaking under Part 5 of the Direction …”.
I also observe that the Implied Undertaking Terms of Agreement that Ms Horton was reluctant to sign is not consistent with the principles set out by the Agency’s solicitors in the paragraphs marked “1” and “2” its letter addressed to the Tribunal. It appears to be predicated on an understanding that the respondent has given an implied undertaking in respect of all documents “filed” with the Tribunal. That is not the understanding set out in the letter and it is not my understanding of the law. Section 37(1)(b), for example, requires the Agency to lodge documents in its possession or under the person’s control and is relevant to the review of the decision by the Tribunal. In that case, the applicant would be subject to the implied undertaking not to use those documents for any purpose other than those connected with the proceeding in the Tribunal. The Agency would not be subject to an implied undertaking because it lodged documents.[23] It would not be subject to an implied undertaking in respect of documents voluntarily given to it or lodged in the proceeding on behalf of GXFS.
[23] Those documents might include documents that an applicant had previously given the Agency. While subject to the implied undertaking in respect of the copies of the documents lodged under s 37, that applicant would not be subject to an implied undertaking in respect of copies of the same documents he or she previously possessed or that came into his or her possession in other way e.g. a medical practitioner were to send a report to him or her as well as to the Agency.
I also note that the Agency’s solicitors have used the word “file” in the Implied Undertaking Terms of Agreement. The word “lodge” is used in provisions of the AAT Act such as ss 37 and 38AA of the AAT Act. Nowhere in the AAT Act is the word “file” used. They have different meanings. The meaning of “lodge” was explained by the Full Court of the Federal Court in Hong Ye v Minister for Immigration and Multicultural Affairs[24] in the context of court or tribunal proceedings:
“… [W]hen the question is … whether a document has been ‘lodged’ there is no difficulty with the conclusion that the document has been ‘lodged’ when it is physically deposited with the court or tribunal or when it has come into the possession of the court or tribunal by some other means such as by post or facsimile transmission.”[25]
As for the word “filing”, the Full Court said:
“… ‘Filing’ is the word used to describe the process of placing a document in the records of a court or its registry …”.[26]
[24] (1998) 82 FCR 468; 153 ALR 327; 55 ALD 358; Burchett, Lehane and Finkelstein JJ
[25] (1998) 82 FCR 468; 153 ALR 327; 55 ALD 358; 153 ALR 327 at 473; 332; 363
[26] (1998) 82 FCR 468; 153 ALR 327; 55 ALD 358; 153 ALR 327 at 471; 330; 361
Although no summonses were issued in this matter, I would also note that neither the word “lodge” nor “file” would include documents that, to use general language, are given to the Tribunal by a person given a summons issued under s 40A of the AAT Act. Documents are, in the language of s 40A, as well as s 40B, “produced” to the Tribunal by the persons summonsed to do so. Even if the word “file” were broadly read as interpreted as “lodge”, its breadth cannot be extended to include “produced”. Documents produced under summons are not filed in the Tribunal although their existence is recorded on the file, be it paper or digital.
I now turn to the signing of the Implied Undertaking Terms of Agreement at all. It can be said that it is for the parties as to the terms of agreements that they reach as to proceedings in the Tribunal. If the agreement relates to the decision that the Tribunal should make, the Tribunal has responsibilities under s 42C of the AAT Act to satisfy itself that a decision within the terms of the agreement would be within its power to make and that it is appropriate to exercise its power. The AAT Act does not put the Tribunal in such a pseudo supervisory position in relation to an agreement such as the Implied Undertaking Terms of Agreement.
The Legal Services Directions 2017 (LS Directions) made under s 55ZF of the Judiciary Act 1903 do provide a framework within which the Agency must operate. That framework is to be found in the directions in The Commonwealth’s Obligation to Act as Model Litigant set out in Appendix B to the LS Directions.[27] Like all other Commonwealth agencies, the Agency must act as a model litigant.[28]
[27] LS Directions; cl 4.2
[28] LS Directions; Appendix B; paras 1 and 3
I am not suggesting that the Agency has not sought to act as a model litigant but the Implied Undertaking Terms of Agreement throw into sharp relief the care that must be taken to ensure that applicants are not asked to sign documents that are not carefully and accurately framed. It also underlines the care that must be taken in choosing the timing at which applicants are asked to sign any documents consenting to the Tribunal’s releasing the Agency from an implied undertaking in relation to documents. Such an agreement is quite separate from any agreement to reach an agreement as to the terms of a decision that the Tribunal might make under s 42C of the AAT Act. It is imperative that the Agency is careful to ensure that it separates the two so that there cannot be any suggestion that its agreement as to the substantive matters in issue is in any way dependent upon the signing of an agreement relating to release of an implied undertaking. That care may show itself in a number of ways depending on the circumstances. It may be by simply listening and reviewing a position as, I suggest, would have been helpful in this instance. In another, it may be by ensuring that an unrepresented applicant or an applicant represented by an advocacy service is not faced with the Agency’s legal representation and two or three of its Agency staff. The situation will differ from case to case.
E.The documents
An examination of the Tribunal’s file shows the following details regarding the four documents in relation to which the Agency wishes to be released from an implied undertaking:
1.Report of Dr Weintrob dated 25 September 2020
Report written to Agency’s solicitors and copied to Ms Horton on behalf of GXFS.
Copy of report lodged on behalf of GXFS on 29 September 2020 as part of his case and not in compliance with any direction by the Tribunal.
2. Report of Professor Berkovic dated 19 May 2020
Lodged on 7 August 2020 as T18 in the T documents lodged by the Agency under s 37 of the AAT Act.
Professor Berkovic addressed the report to the Agency care c/- GXFS and sent it to GXFS’s address.
Copy lodged on behalf of GXFS on 29 September 2020 as part of his case and not in compliance with any direction by the Tribunal.
3. Report of Professor Berkovic dated 22 September 2020
Report addressed to Agency’s solicitors.
Copy of report lodged on behalf of GXFS on 29 September 2020 as part of his case and not in compliance with any direction by the Tribunal.
4. Report of Dr O’Shea dated 13 January 2020
Lodged on 7 August 2020 as T15 in the T documents lodged by the Agency under s 37 of the AAT Act.
Dr O’Shea copied report to GXFS at his email address.
As the Agency correctly submits, the report of Professor Berkovic dated 19 May 2020 and that of Dr O’Shea were lodged in the Tribunal as part of the T documents and consistently with its obligations under s 37 of the AAT Act. It then goes on to submit that “… on that basis, … the implied undertaking applies to those documents.”[29] I agree that there is an implied undertaking but it is GXFS who is restrained from using those documents other than for the purposes of the proceedings as a result of an implied undertaking; not the Agency. GXFS is restrained because the T documents were lodged under compulsion by the Agency and he is the recipient of the documents. The fact that it was required to lodge them does not subject the Agency to an implied undertaking to use them only for the purposes of the proceedings. There is no implied undertaking from which to release the Agency.
[29] Agency’s solicitors’ letter dated 28 October 2020 at “4”.
GXFS is in a different position but only in respect of Dr O’Shea’s report. He has received the two reports lodged on behalf of the Agency under compulsion but he received a copy of the report separately from Professor Berkovic. GXFS is subject to an implied undertaking in respect of the copies of the documents that he received in the T documents. Unless released from the implied undertaking he has necessarily made to the Tribunal, he may not use them for purposes not connected with these proceedings. GXFS is not restricted, though, by any implied undertaking attaching to the copy of the report that he was sent by Professor Berkovic. Although their contents are the same, the copy of Professor Berkovic’s report dated 19 May 2020 that is T18 in the T documents is a separate document from that which he was sent by Professor Berkovic. He may use the copy of the report that he was sent by Professor Berkovic but not the copy that is T18.
From the file, it would seem that GXFS has not been given any copy of Dr O’Shea’s report other than that which appears at T15 of the T documents. Given that the Agency proposes to use Dr O’Shea’s report in proceedings not connected with these proceedings and given that the authors of the two reports realised that GXFS was seeking to become a participant in the NDIS, it may be only appropriate if he were released him from the implied undertaking so that he may use it, if he chooses, in considering any participant’s plan that the CEO of the NDIA approves. I will leave him to consider whether he wishes to make a request.
On behalf of GXFS, Ms Horton lodged the reports of Dr Weintrob dated 25 September 2020 and Professor Berkovic dated 22 September 2020. GXFS was not required to lodge those reports but Ms Horton did so in support of his case. The Agency is not subject to any implied undertaking in relation to documents lodged voluntarily by GXFS.
In conclusion, I have decided that the Agency is not subject to any implied undertaking on the evidence that I have. I note that, in the paragraph numbered “6” in the Agency’s solicitors letter dated 28 October 2020, again states that it has made its request out of an “abundance of caution”. It suggests that the Tribunal might not agree because “… it considers that the implied undertaking does not apply to the four reports (for reasons such as, that those documents were not provided under compulsion or that they do not refer to summonsed records) …”.
In each of the three cases, I have gone through the Tribunal’s file to check whether the documents have been lodged under compulsion or whether they have referred to summonsed documents. This is a task that the party requesting waiver of any implied undertaking should do when making the request. The request should describe the document accurately and record the circumstances in which it was lodged or produced under summons and so received by the person or agency making the request for waiver. If a report refers to summonsed material, the request will state that it does. If a document forms part of the T documents, reference will be given to the “T” and/or page number. If a document has been lodged under compulsion, reference will be made to the date of the Tribunal’s direction and identify the party lodging it.
It is not enough to make a “rolled up” claim as it were and seek to place the burden on the Tribunal to do the party’s work by first finding the document and then working out who lodged it and the basis on which it was lodged. By preparing a request with appropriate detail, I would expect that the Agency would be in a good position to work out whether it is subject to an implied undertaking and so whether needs to pursue a request to be released from it. By way of example, if a report forms part of the T documents lodged by the Agency under compulsion under s 37 of the AAT Act, it will realise that it is not the subject of an implied undertaking in respect of that document. The applicant will be subject to an implied undertaking not to use that document for purposes other than those connected with the proceedings. Some of the T documents may well have been given to the Agency by the applicant. While the applicant is under an implied undertaking not to use the copy of such a document that appears in the T documents, it can use any other copy of it that he or she has kept.
For my part, I will be requiring those who do not provide sufficient detail to provide that detail before I consider any requests made by the Agency for waiver of an implied undertaking.
DECISION
For the reasons I have given, I have decided:
NWCB and NDIA 2020/1287
(1)The Agency’s request to be released from an implied undertaking in relation to a report of Dr Oriella Cattapan, Clinical Psychologist, dated 23 August 2020 is refused on the basis that the Agency is not subject to an implied undertaking not to use it for purposes not connected with these proceedings No. 2020/1287.
ZFND and NDIA 2020/1014
(1)The Agency’s request to be released from an implied undertaking relating to the records produced under summons from the following:
Dr David Wallace, neurosurgeon; Dr Yagnesh Vellore, neurosurgeon and spine surgeon; Dr Martin Richardson, orthopaedic surgeon; Dr Stephen de Graff, Director – Pain Services; Ms Joan Hamilton-Roberts, counselling psychologist; and Dr Jeremy
is granted to enable it to use the documents for the purposes of assessing the applicant’s entitlements under the NDIS Act.
(2)The Agency’s request to be released from an implied undertaking in relation to six documents numbered “a” to “g” in a letter to the Tribunal dated 5 October 2020 is refused Russell, neurosurgeon on the basis that the documents are not subject to an implied undertaking for purposes not connected with these proceedings 2020/1014.
GXFS and NDIA 2020/4046
(1)The Agency’s request to be released from an implied undertaking in relation to reports of Dr Weintrob dated 25 September 2020, Professor Berkovic dated 19 May 2020 and 22 September 2020 and of Dr O’Shea dated 13 January 2020 is refused on the basis that the Agency is not subject to an implied undertaking not to use them for purposes not connected with these proceedings No. 2020/4046.
| I certify that the preceding fifty nine paragraphs (59) paragraphs are a true copy of the reasons for the decision herein of Deputy President S A Forgie |
....................[sgd]................................................
Associate
Date of decision: 9 November 2020
| Heard: | On the papers |
Applicant (ZFND): | ZFND’s Son |
Respondent’s solicitor: | Ms Cailin Farrell Sparke Helmore Lawyers |
Applicant (NWCB): | Mr Brendan O’Hanlon |
Respondent’s advocate: | Ms Jane Thomson National Disability Insurance Agency |
Applicant (GXFS): | Ms Angela Horton |
Respondent’s solicitor: | Mr Nam Nguyen Sparke Helmore Lawyers |
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