Palmer and Military Rehabilitation and Compensation Commission (Compensation)
[2021] AATA 1347
•14 May 2021
Palmer and Military Rehabilitation and Compensation Commission (Compensation) [2021] AATA 1347 (14 May 2021)
Division:VETERANS' APPEALS DIVISION
File Number(s):2020/0188
Re:James Palmer
APPLICANT
AndMilitary Rehabilitation and Compensation Commission
RESPONDENT
DECISION
Tribunal:Mr S. Webb, Member
Date:14 May 2021
Place:Canberra
Request for release is refused.
……..….[sgd]…………
S. Webb, MemberPRACTICE AND PROCEDURE – Military compensation - threshold liability claim refused – application for review withdrawn during hearing – medical documents produced under compulsion not taken into evidence – request for release from Harman obligation – inconsistent Tribunal decisions – consideration of applicable principles – requirement for release to use documents for claim management purposes - meaning of ‘any other purpose’ – claim management purposes outside the purposes of Tribunal proceedings - release not appropriate in hypothetical circumstances – no special circumstance or good reason made out - request refused.
Legislation
Administrative Appeals Tribunal Act 1975 ss 2A, 3, 25, 28, 30, 33, 35, 38AA, 39, 40A, 40B, 43.
Military Rehabilitation and Compensation Act 2004 ss 3, 23, 27, 328, 329, 331, 353-355, 362.
Safety, Rehabilitation and Compensation Act 1988.
Veterans’ Entitlements Act 1986 ss 139, 142, 148, 151.Cases
Angel Flight Australia v Civil Aviation Safety Authority [2020] FCA 1316
Anglo American Investments Pty Ltd (Trustee) v Commissioner of Taxation [2019] FCA 1027
Cadbury Schweppes Pty Ltd (ACN 004 551 473) v Amcor Limited (ACN 000 017 372) [2008] FCA 398
Chin and Comcare [2017] AATA 634Deputy Commissioner of Taxation v Rennie Produce (Aust) Pty Ltd (in liq) [2018] FCAFC 38
DVFW and Comcare (Compensation) [2019] AATA 2366
Esber v Commonwealth & Anor [1992] HCA 20
Esso Resources Australia Ltd v Plowman [1995] HCA 19
Frigger v Trenfield (No 5) [2020] FCA 827
Gower and Australian Capital Territory (Compensation) [2019] AATA 3947
Hearne v Street [2008] HCA 36
HGGJ and Comcare (Compensation) [2020] AATA 136
JLXY and National Disability Insurance Agency [2021] AATA 144
Lees v Comcare [1999] FCA 753
Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3
LMFP and Comcare (Compensation) [2017] AATA 1512
Military Rehabilitation and Compensation Commission v Katterns [2017] FCA 641
Newey and Comcare (Compensation) [2017] AATA 1772
Northbuild Construction Pty Ltd v Discovery Beach Project Pty Ltd (No 4) [2011] 1 Qd R 145
Otter Gold Mines Ltd v McDonald (1997) 76 FCR 467
Polyaire Pty Ltd v K-Aire Pty Ltd [2011] SASC 176
Rana and Military Rehabilitation and Compensation Commission [2009] AATA 361
Re Oliver and Comcare [2018] AATA 1964
Richmond and Comcare [2019] AATA 100Sinnott v Chief of Defence Force [2020] FCA 643
Treasury Wine Estates Ltd v Maurice Blackburn Pty Ltd [2020] FCAFC 226
Warner and Comcare (Compensation) [2017] AATA 2709Secondary Materials
Administrative Appeals Tribunal General Practice Direction (28 February 2019) Part 5
REASONS FOR DECISION
Mr S. Webb, Member
14 May 2021
James Palmer claimed compensation for sleep apnoea as a service injury. The Military Rehabilitation and Compensation Commission (Commission) refused the claim. Mr Palmer applied for review by the Tribunal. The application proceeded in the usual manner in preparation for hearing. Orders were made in respect of materials to be given to the Tribunal by the parties, including medical reports.
The application came on for hearing. Certain documents were taken into evidence. Medical documents, including expert medical reports and related briefing papers, were to be dealt with when the experts gave oral evidence on the second day of the hearing. Mr Palmer gave oral evidence. Under cross-examination, questions arose about the veracity of his evidence in chief. At the outset of the second day of the hearing, Mr Richards, counsel acting for Mr Palmer, advised that he had instructions to withdraw the application.
At this point, Ms Wright, counsel for the Commission, requested that the Commission be granted release from the implied undertaking not to use certain medical records and expert medical reports otherwise than for the purpose of the proceedings in which they were produced. The Commission wants to use the specific documents for the purposes of managing any future claim Mr Palmer might make in respect of sleep apnoea or any other sleep disorder.
I instructed Ms Wright to make the request in writing, particularising the documents for which release was sought and the purposes to which they would be put. Any objection by Mr Palmer was to be heard on the third day of the hearing.
The written request was duly made in terms outlined below. Mr Palmer informed the Tribunal that he did not agree with or object to the request. As a result, the third day of the hearing was vacated.
In order to address the request for release, four steps must be taken. First, it is necessary to identify the documents over which release is requested and the circumstances under which they were produced. The second step is to determine if the Commission is under an obligation to the Tribunal not to use these documents for any purpose outside the Tribunal proceedings in which they were produced. The third step requires an evaluation of the circumstances or reasons for the requested release and the purposes to which the documents will be put. And lastly, in the fourth step, it is necessary to determine if it is appropriate to exercise the Tribunal’s discretion to grant release.
It is important to observe that there is nothing voluntary about the “implied undertaking”,[1] also known as the Harman obligation,[2] from which the Commission seeks release. It is a substantive legal obligation that arises in common law from disclosure under compulsion,[3] –
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 is given unless it is received into evidence.[4]
[1] Hearne v Street [2008] HCA 36, per Hayne, Heydon and Crennan JJ at [96]-[97]
[2] Harman v Secretary of State for the Home Department [1983] 1 AC 280 at 304, 309, 319, 320 and 321
[3] Hearne v Street [2008] HCA 36, per Hayne, Heydon and Crennan JJ at [105]-[109].
[4] Ibid, at [96].
The obligation is owed to the Tribunal. t is incidental to the power to compel production, and it is in the discretion of the Tribunal to grant release from it to the party obtaining disclosure.[5] The implied undertaking is dealt with in Part 5 of the Tribunal President’s General Practice Direction issued on 28 February 2019.
[5] Otter Gold Mines Ltd v McDonald (1997) 76 FCR 467 at 471–473.
In the circumstances of this case, it is not necessary to deal with the controversy over the broader conception of the implied undertaking, such that a document furnished for use for one purpose may not legitimately be used for another. I note that this broad conception of principle was applied in Sinnott v Chief of Defence Force[6] and it was not applied in Frigger v Trenfield (No 5)[7].
[6] [2020] FCA 643.
[7] [2020] FCA 827.
The documents
The Commission’s request for release is in respect of the following documents (the Documents):
Document Date Polysomnogram Report 14.05.2010 Report of Dr Baxter, ENT Specialist 06.08.2020 CT Scan – Sinus and / or Facial Bones 03.11.2020 Report of Dr Glennie, ENT Surgeon 27.11.2020 Supplementary report of Dr Glennie, ENT Surgeon 12.01.2021 Supplementary report of Dr Baxter, ENT Specialist 28.01.2021
Each of these Documents was produced under orders of the Tribunal.
On 16 March 2020, 28 April 2020, 13 May 2020 and 14 July 2020, Mr Palmer was ordered to file all “evidence on which he intends to rely” at the hearing. It was in response to these orders that he gave the Tribunal and the Commission a report prepared by Dr Baxter, dated 6 August 2020.
On 7 September 2020, 26 October 2020 and 23 November 2020, the Commission was ordered to file “a copy of the medical report, together with a copy of the briefing letter to the doctor” on which it intended to rely at the hearing. It was in response to these orders that the Commission filed a report by Dr Glennie dated 27 November 2020.
The briefing materials provided to Dr Glennie and Dr Baxter included materials produced under summons (under s 40A of the Administrative Appeals Tribunal Act 1975 (the AAT Act)) to which the parties were granted access by order under s 40B of the AAT Act. The reports of these doctors drew upon the contents of materials produced under compulsion.
On 8 December 2020, the Tribunal ordered each of the parties to file “a copy of any supplementary medical report, together with a copy of the briefing letter to the doctor, on which they intend to rely”. It was in response to this order that the Commission filed a supplementary report by Dr Glennie, dated 12 January 2021, and Mr Palmer filed a supplementary report by Dr Baxter, dated 28 January 2021.
On 21 April 2021, the Commission filed a bundle of documents that were agreed upon by the parties on which the parties would rely at the hearing (Tender Bundle). The reports of Dr Baxter and Dr Glennie are included in the Tender Bundle, as is the Polysomnogram Report, dated 14 May 2010, and the CT Scan, CT Sinuses and/or Facial Bones, dated 3 November 2020. These documents were filed under s 4.4 of the COVID-19 Special Measures Practice Direction - Freedom of Information, General and Veterans’ Appeals Divisions issued on 2 March 2021.
The obligation
There is no controversy about the existence of the Harman obligation in respect of the Documents. The fact that they were produced under compulsion means the corresponding obligation arises.
The reports of Dr Baxter were commissioned by Mr Palmer. The Commission obtained access to the reports of Dr Baxter, the Polysomnogram Report and the CT Scan report by order of the Tribunal.
The reports of Dr Glennie are of a different character. These reports were commissioned for the purposes of the Tribunal proceedings by the Commission. They were disclosed to Mr Palmer and produced to the Tribunal under compulsion, by order of the Tribunal. The reports drew on medical records of Mr Palmer that were obtained under compulsion, by summons of the Tribunal, to which the Commission was granted access. Extracts of these summonsed records were included in briefing materials provided to Dr Glennie. Furthermore, under s 328 of the Military Rehabilitation and Compensation Act 2004 (MRCA), Mr Palmer was compelled to undergo an examination by Dr Glennie, where failure to do so may have resulted in suspension of his right to compensation under s 329 of that Act. These matters enliven the Commission’s obligation not to use Dr Glennie’s reports for any other purpose than the Tribunal proceedings in which they were produced.[8]
[8] Newey and Comcare (Compensation) [2017] AATA 1772 at [21]; Richmond and Comcare [2019] AATA 100 at [19]-[22]; Chin and Comcare [2017] AATA 634 at [19]-[21].
Is release required?
The Commission raises two arguments against the requirement to seek release in respect of the Documents. Firstly, the Commission argues that “most of the content of the Documents could no longer be said to be subject to any obligation, given reference to them in the hearing” and, secondly, that using the Documents “for future claims management purposes, specific to a sleep disorder, would not involve use for an ulterior or collateral purpose”.
Referential disclosure of content
Under the Harman principle, any non-disclosure obligation arises from the compulsion under which the subject materials were produced. The obligation persists unless, or until, the materials are tendered and taken into evidence whereupon, subject to any non-publication or other confidentiality order of the Tribunal, they enter the public domain.[9]
[9] Esso Resources Australia Ltd v Plowman [1995] HCA 19, per Mason CJ, with whom Dawson and McHugh JJ agreed, at [41].
It can be accepted that the Documents would have been tendered and taken into evidence had Mr Palmer not withdrawn his application for review on the second day of the hearing, whereupon any obligation that stems from disclosure under compulsion, by order of the Tribunal, would have fallen away. That did not occur; the Documents were not tendered or taken into evidence and that threshold, whereupon the reports would enter the public domain, was not surpassed.
Nevertheless, some contents of the Documents were communicated, referentially, during the hearing. This occurred in the context of opening remarks made by counsel and during the examination and cross-examination of Mr Palmer. Aspects of the service and medical histories obtained by Dr Baxter and Dr Glennie, particularly statements attributed to Mr Palmer, were put to him in cross-examination. This forms part of the evidence. The hearing was conducted remotely, using the Microsoft Teams platform. It was a public hearing that was not subject to any confidentiality restriction.
The extent to which some of the contents of the Documents were disclosed in examination and cross-examination of Mr Palmer, testing the histories obtained by Dr Baxter and Dr Glennie, and the statements attributed by those doctors to Mr Palmer in particular, does not negate the obligation owed to the Tribunal in respect of not using the Documents for any other purposes than those for which they were produced.[10]
[10] Treasury Wine Estates Ltd v Maurice Blackburn Pty Ltd [2020] FCAFC 226 at [83].
Ulterior or collateral purpose
The Commission draws support for its contention that claims management is not an ulterior or collateral purpose to the Tribunal proceedings from recent Tribunal decisions: HGGJ and Comcare (Compensation)[11]; Chin and Comcare (Chin’s case)[12] and Re Oliver and Comcare (Oliver’s case).[13]
[11] [2020] AATA 136.
[12] [2017] AATA 634.
[13] [2018] AATA 1964.
In order to address this submission, it is necessary to carefully consider these and other recent Tribunal decisions on this point, namely LMFP and Comcare (Compensation) [2017] AATA 1512, Warner and Comcare (Compensation) [2017] AATA 2709, Newey and Comcare (Compensation) [2019] AATA 1772, Richmond and Comcare (Compensation) [2019] AATA 100, DVFW and Comcare (Compensation) [2019] AATA 2366, Gower and Australian Capital Territory (Compensation) [2019] AATA 3947.
The Tribunal in Chin’s case[14] considered an application by Comcare for release from the implied undertaking in order to use medical documents that had been produced under compulsion in the proceedings for the purposes of managing claims stemming from the same injury. The Tribunal decided that the proposed purposes of claim management were not others than those of the proceedings –
27. 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.
[Citations removed].
[14] [2017] AATA 634.
In LMFP and Comcare (Compensation),[15] the Tribunal decided that the implied obligation applied to documents then subject to a request for release by Comcare that it wanted to use for future claim management purposes. The Tribunal decided that Comcare required release from the implied obligation in order to use the documents for the purposes intended. Release was granted.
[15] [2017] AATA 1512.
In Warner and Comcare (Compensation),[16] the Tribunal considered a request by Comcare to use documents produced in the proceedings for the purposes of managing compensation claims relating to injuries other than the injury at the heart of the proceedings. The Tribunal decided that release from the implied undertaking was required -
14. … Mr Warner’s application for review related to the 1996 aggravation of his lumbar spine condition. Comcare seeks to use the report to manage the other claims: a claim relating to an injury to his wrists, arms, shoulders and neck (in 1997), and a claim relating to an injury to his shoulders (in 1998). Those claims management purposes are purposes other than those for which the summonsed material was given.
15. It follows that the claims management purposes that Comcare has identified are collateral or ulterior to the purpose for which the summonsed material was compelled to be produced in these proceedings. So, Comcare requires a release from the implied undertaking before it can use the report—to the extent that the report is informed by, or reproduces information from, the summonsed material—in the management of the other claims.
[Citations removed].
[16] [2017] AATA 2709.
A similar issue arose in Oliver’s case,[17] in which Comcare sought release from the implied undertaking in order to use medical documents for claim management purposes. The Tribunal decided at [58] –
The factual situation facing the Tribunal in the present circumstances fall somewhere between those encountered in Warner and Chin. 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.
[17] [2018] AATA 1964.
In Richmond and Comcare (Compensation)[18], the Tribunal adopted the interpretation in Warner’s case and said –
27. In my view Mr Richmond has claimed for two separate injuries and they are being separately managed: the two claims are not being treated as one. That implies to me that Comcareitself sees them as separate and distinct. There is nothing that suggests to me that one is a causative factor in the other…
[18] [2019] AATA 100.
The Tribunal in Newey and Comcare (Compensation) (Newey’s case)[19] discussed the nature of the Harman obligation and concluded that –
30. 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.
31. 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 Neweysuffered 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. 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...
…
32. 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.
[19] [2019] AATA 1772.
In DVFW and Comcare (Compensation),[20] the Tribunal took a different view (without reference to Newey’s case) and said –
6. In terms of all the authorities that are before the Tribunal, including Richmond v Comcare [2019] AATA 100, Warner v Comcare [2017] AATA 2709, Oliver v Comcare [2018] AATA 1964, Chin v Comcare[2017] AATA 634 at [21] and LMFP v Comcare [2017] AATA 1512 at [3], in the Tribunal’s view this case falls into a category of management of the claim for the accepted condition and, in saying that, I include Allianz, Comcare and DHS, because they all have a role, through delegations and so on, in the management of DVFW’s accepted condition. The use of the documents is not for a collateral purpose. Their use is therefore not subject to the implied undertaking and leave to be released from that undertaking is not necessary.
7. Proceedings 2018/3869 and 2018/4369 are both part of the claims management process because the Tribunal is reviewing a decision of Comcare or a delegate of Comcare and its decision will bear upon the management of DVFW’s accepted condition.
[20] [2019] AATA 2366.
In Gower and Australian Capital Territory (Compensation),[21] the Tribunal distinguished Chin’s case and Warner’s case and concluded that -
18. … the Respondent does require a release from the implied undertaking to use the Reports for claims management purposes, including because of the uncertainty about the relatedness of the 2016 injury to the Claimed Injury, noting that Dr Mourad considers that they are two distinct injuries.
[21] [2019] AATA 3947.
In HGGJ and Comcare (Compensation),[22] the Tribunal agreed with and adopted the interpretation applied in Newey’s case –
79. The Tribunal says nothing more about this issue as it considers it premature to do so, except to make the observation that it has considered and agrees with the views of Senior Deputy President Forgie as referred to in paragraphs [16] and [32] in Re Newey and Comcare (Compensation) [2019] AATA 1722. In other words, the Tribunal considers that Comcare would be required to seek a release of the implied undertaking if it wished to use any of the Section 38AA Documents (excluding the Tender List Documents now tendered into evidence), for the purpose of assessing any further claim thatHGGJ’s may subsequently make, concerning the Compensable Injury under consideration in this application or any other injury.
[22] [2020] AATA 136.
As can be seen, there are divergent Tribunal decisions addressing the requirement for release to be granted from the implied undertaking before documents produced under compulsion in Tribunal proceedings relating to a claim may be used for claim management purposes. While consistency in Tribunal decisions may serve the interests of fairness, justice and good practice, and inconsistency without a compelling reason should be avoided, in this case, absent consistency, and with great respect to the Tribunal members in those cases, there are a number compelling reasons not to adopt the reasoning applied in Chin’s case and those following it.
In many cases it may be correct to say that the Tribunal stands in the shoes of the person who made the decision under review. This is no more than a euphemism for the Tribunal making a fresh decision on review, whereupon the Tribunal’s decision has effect in the administrative continuum from which the decision under review arose. Under s 43(1) of the AAT Act, the Tribunal is required to affirm or vary the decision under review, or to set it aside and substitute a fresh decision (or remit the matter for reconsideration) – in effect, the Tribunal’s decision replaces the decision under review. That is certainly so in the present legislative setting under the MRCA where, under s 354, jurisdiction is conferred upon the Tribunal to review decisions of the specified kinds.[23] To that extent, the Tribunal’s decision may be construed as an administrative decision that exists in the context of claims made by a person in respect of a ‘service injury’ or a ‘service disease’.[24] It does not follow, however, that the purposes of the Tribunal’s review align with the purposes of the Commission when determining other claims Mr Palmer may make under the MRCA.
[23] A ‘reviewable determination’ as defined under s 345, and determinations specified in s 354(2) of the MRCA.
[24] ‘Service injury’ and ‘service disease’ are defined in s 27 of the MRCA.
The formulation of tiered decision-making in the MRCA, involving ‘original determinations’ and ‘reviewable determinations’, and the review of certain determinations by the Tribunal, follows a similar construction to the formulation set out in the Safety, Rehabilitation and Compensation Act 1988 (SRCA), where a determination to accept liability is separate and distinct from subsequent claims and determinations relating to amounts of compensation that may be payable.[25] The same conclusion applies under the MRCA. In that context, it is very clear that the Tribunal’s jurisdiction extends only to a ‘reviewable determination’ (or other eligible determinations under s 354(2) of the MRCA) that is the subject of an application for review. It does not extend to any other determination or reviewable determination; nor does it extend to other claims made by the person or that may be made in the future, even if those claims are in respect of a ‘service injury’ or ‘service disease’ where threshold liability under s 23 of the MRCA was decided by the Tribunal on review.
[25] Lees v Comcare [1999] FCA 753 at [34]- [35] and [39].
It may now be trite to note that the Tribunal must make the correct or preferable decision on the materials placed before it by parties to the proceedings, but it is nevertheless important. It is in this regard that the Tribunal’s decision is clearly distinct from that of a person deciding a claim, exercising all the powers and discretions under applicable legislation, and being bound by policies, adhering to procedures and taking account of operational matters that may pertain in the particular agency or corporation. Proceedings in the Tribunal have a very different character in which an applicant has substantive rights that otherwise would not arise.
Characterising the Tribunal’s decision as ‘one decision amongst several made during the management of the same claim’, is not helpful and it does not clearly expose the purposes of review by the Tribunal when exercising jurisdiction that is conferred upon it in response to an application, or the purposes of the resulting ‘proceeding’, as defined in s 3 of the AAT Act –
proceeding, in relation to the Tribunal, includes:
(a) an application to the Tribunal for review of a decision; and
(b) an application to the Tribunal under subsection 28(1AC); and
(c) an application to the Tribunal for review of a taxing of costs; and
(d) an application to the Tribunal for a costs certificate under section 10A of the Federal Proceedings (Costs) Act 1981; and
(e) an application to the Tribunal under subsection 62(2) of the Freedom of Information Act 1982; and
(f) any other application to the Tribunal under this Act or any other Act; and
(g) any matter referred to the Tribunal for inquiry and/or review under this Act or any other Act; and
(h) 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.
Tribunal proceedings are conducted under legislative provisions and involve the exercise of procedural and other powers that are not at large and do not otherwise apply. The commencement of a proceeding in the Tribunal is essentially conditioned by an application within the scope of s 25 of the AAT Act –
(1) An enactment may provide that applications may be made to the Tribunal:
(a) for review of decisions made in the exercise of powers conferred by that enactment; or
(b) for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.
It is very clear in this provision that an application to the Tribunal for review relies upon the provision under another enactment of what amounts to an actionable right – a right to apply for review. Furthermore, as Mason CJ observed in Esber v Commonwealth & Anor[26] at [21] –
… Once the appellant lodged an application to the Tribunal to review the delegate's decision, he had a right to have the decision of the delegate reconsidered and determined by the Tribunal. It was not merely "a power to take advantage of an enactment”. Nor was it a mere matter of procedure; it was a substantive right …
[Citations removed].
[26] Esber v Commonwealth & Anor[1992] HCA 20.
The right to obtain a statement of reasons for a decision that is conferred upon a person whose interests are affected by and who is able to make an application for review of a decision by the Tribunal under s 28 is consistent with this conception, as is the Tribunal’s power to make such a person a party to a proceeding under s 30(1A). These provisions point to the particular character of a Tribunal ‘proceeding’ in relation to a cause of action under another enactment, namely in this case Mr Palmer’s cause of action against the Commonwealth in respect of compensation for a ‘service injury’ or a ‘service disease’. The particularity of the action is governed by the particular legislative provisions under which it is taken.
While an applicant may have a substantive right to have the particular application decided on the materials placed before the Tribunal, it is in the course of the proceedings that further rights may arise or be intruded upon. A party’s right to protect personal information, confidential records or other documents from disclosure may be intruded upon by a Tribunal summons under s 40A of the AAT Act, or by an order compelling production under s 33, for the purposes of the proceedings. Where this occurs and the other party gains access to the documents produced under compulsion, the corresponding obligation not to use the documents for any other purpose outside the proceedings arises.
Much has been said about what the phrase ‘other purposes’ means under the Harman obligation. Descriptors such a ‘ulterior’, ‘collateral’, even ‘alien’ have been used in authoritative cases addressing this point. In order to resolve the issue and decide if the use to which the Commission intends to put the Documents is outside the purposes for which their production was compelled, it is necessary to clearly comprehend the purposes of the Tribunal proceedings and the content of the obligation arising from the compulsion to produce the Documents.
The Commission has provided extensive submissions about the meaning of ‘ulterior’, arguing that deciding or managing any future claim Mr Palmer might make in respect of sleep apnoea or any other sleep disorder is not an ulterior purpose. In Chin’s case and those following it, it was accepted that the purposes of managing claims made in respect of an injury were not ulterior or collateral purposes to the Tribunal proceedings in respect of the same injury. In Oliver’s case, for example, the Tribunal described the purposes of production in the following way –
58. … [The medical 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…
In Chin’s case, the Tribunal said this about the alignment of Tribunal and claim management purposes –
28. … 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.
As can be seen, in both these cases, the purposes of compelling production of the Documents in the Tribunal proceedings are said to align with the purposes of managing claims made against Comcare. The difficulty with this is that the purposes for which production was compelled are in respect of the proceedings in the Tribunal – the Documents in this case were not produced under compulsion for claim management purposes, they were produced for the purposes of the Tribunal proceedings.
It may be possible to draw a very broad contextual picture of the Tribunal proceedings in a landscape of claims, but this does not assist close examination of the purposes of the particular proceedings in which the production of documents was compelled or the purposes of compelling production of the Documents in the particular case. The proceedings are specific to the cause of action pressed in the application for review of a ‘reviewable determination’, in relation to which substantive rights may be exercised and particular powers may be employed, including the power to compel production of documents. The purposes of the proceedings have no broader ambit, and they do not extend to any other causes of action that may be taken or determinations that may be made under the MRCA in respect of other claims. Furthermore, to my mind, the principal purpose of proceedings in the Tribunal is the review of a decision in a manner that accords with the statutory objectives set out in s 2A of the AAT Act -
In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that:
(a) is accessible; and
(b) is fair, just, economical, informal and quick; and
(c) is proportionate to the importance and complexity of the matter; and
(d) promotes public trust and confidence in the decision‑making of the Tribunal.
The purpose of compelling production of the Documents is to ensure that each party has a reasonable opportunity to present their case,[27] having access to all relevant materials and fair opportunity to comprehend the case of any other party.[28] The production of documents to the Tribunal under compulsion, and the granting of special access to such documents by order, are solely for the purposes of the proceedings.
[27] AAT Act s 39(1).
[28] Military Rehabilitation and Compensation Commission v Katterns [2017] FCA 641 at [14].
The Tribunal’s jurisdiction, role, functions and powers are not the same as those of the decision-maker who made the decision subject to review. In this case the ‘reviewable determination’ was made by the Veterans’ Review Board (Board) exercising jurisdiction conferred upon it by s 352 of the MRCA. By operation of s 353 of the MRCA, s 139 of the Veterans’ Entitlements Act 1986 (VEA) applies, whereby under s 139(3) ‘[f]or the purpose of reviewing a decision of the Commission, the Board may exercise all the powers and discretions that are conferred by this Act on the Commission in like manner as they are required by this Act to be exercised by the Commission’. Additionally, Division 5 of Part IX of the VEA contains provisions that confer powers on the Board which apply ‘for the purposes of a review by the Board under’ Part 4 of Chapter 8 of the MRCA. These include powers in respect of directions under s 142(2) and 148(4B) and summons under s 151(2) of the VEA.
Just as the Board may exercise compulsive powers that are not available to the Commission, those powers are for the purposes of reviewing a decision of the Commission rather than any purposes of the Commission. A similar delineation exists between the powers of the Board for the purposes of Part 4 of Chapter 8 of the MRCA and the powers of the Tribunal for the purposes of Part 5 of Chapter 8 of the MRCA.
By operation of s 355 of the MRCA, and subject to the modifications specified, the AAT Act has effect ‘for the purposes of a review by the Tribunal under this Part’.
As s 43(1) of the AAT Act is not modified by s 355 of the MRCA, the Tribunal may exercise all of the powers and discretions available to the person who made the decision under review. The Tribunal has other powers conferred upon it that it may exercise in proceedings arising from an application for review. These include compulsive powers in respect of directions under s 33(2) and summons under s 40A of the AAT Act where failure to comply may lead, respectively, to dismissal under s 42A(5) or an offence under s 61. In the exercise of these powers the Tribunal may compel a person to produce documents to which the parties may be granted access by order that otherwise they would not have. In this way, the compulsion may intrude upon that person’s rights to privacy and confidentiality over their documents or information. The Harman obligation arises in correspondence to this intrusion, such that the person who gains a special advantage by access to documents produced under compulsion for the purposes of the proceedings is not placed in a different position that any person outside the proceedings in respect of those particular documents – without release, the person cannot use them for any other purpose that that for which they were produced.
This is not a case in which it has been argued that the exercise of statutory power, such as the Commission’s power to obtain documents under s 331 of the MRCA for example, may exceed or override any existing Harman obligation.[29] Nevertheless, it is germane to observe that the powers conferred upon the Commission are components of the legislative machinery set out in Chapter 7 of the MRCA for the making and determination of claims in performance of its functions under s 362. While the legislative procedure for dealing with claims under the MRCA include review by the Tribunal under provisions set out in Part 5 of Chapter 8,[30] Parts 2, 3 and 4 of that Chapter establish the tiered framework for reconsideration of determinations by the Commission and review by the Veterans’ Review Board, which are anterior to and entirely separate from review proceedings in the Tribunal.
[29] See Deputy Commissioner of Taxation v Rennie Produce (Aust) Pty Ltd (in liq) [2018] FCAFC 38.
[30] See the simplified outline of the MRCA in s 3.
It will be clear by now that I consider the approach to the Harman obligation adopted by the Tribunal in Newey’s case and those following it is correct and, for the reasons I have set out, I would not adopt or follow the interpretation preferred in Chin’s case, Oliver’s case and those following on.
That being so, the Commission requires release from the Harman obligation to use the Documents for the purposes of “considering any further claims by the applicant relating to obstructive sleep apnoea (OSA) or any other sleep disorder, which he may claim relates to his service with the Royal Australian Navy”.
Should release be granted?
Mr Palmer does not object to Comcare’s request for release from the implied undertaking in respect of the Documents.
The Commission asserts that release should be granted as it is justified in the circumstances. It asserts that the Documents were brought into existence in relation to Mr Palmer’s sleep apnoea claim and they were intended to be tendered in evidence – this would have occurred had the application proceeded. Furthermore, the Commission argues that the Documents are relevant to any claims that Mr Palmer’s sleep disorder, however described, is causally related to his service with the Royal Australian Navy. The Commission also asserts that –
• Given the relevance of the Documents, the Documents could be sought through more cumbersome and costly processes at a later date, when specifically required. Some processes, such as the Tribunal’s summons process, are not available at earlier decision-making stages.
• In terms of efficiency and use of the Tribunal’s resources, as the applicant withdrew the application for review part way through the Tribunal hearing, the Tribunal is presently appraised of the background to the matter, content and potential relevance of the documents. The matter was also listed to continue on 29 and 30 April 2021, so the Tribunal has already allocated time to it, which may be difficult to re-allocate at this late stage. A future application would require a fresh and additional allocation of time by the Tribunal and the parties.
• While there is personal information in the documents pertaining to the applicant, the respondent is subject to strict privacy obligations, and the use to which they are sought to be put is appropriately limited.
• The applicant has an opportunity to object to the request, and to be heard at 10am on 30 April 2021 in relation to any such objection.
The question of release is a matter of discretion. Nevertheless, the guiding principle that can be taken from the relevant authorities is that an applicant for release must demonstrate ‘special circumstances’[31]: “Good reason must be shown…”.[32]
[31] Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 8 at [31].
[32] Anglo American Investments Pty Ltd (Trustee) v Commissioner of Taxation [2019] FCA 1027 at [4].
A number of considerations have been found relevant to exercise of this discretion.[33] These were summarised by Logan J in Anglo American Investments Pty Ltd (Trustee) v Commissioner of Taxation[34] -
[33] See Treasury Wine Estates Ltd v Maurice Blackburn Pty Ltd [2020] FCAFC 226 at [96]-[100].
[34] [2019] FCA 1027 at [5]-[6].
5. In Springfield Nominees, Wilcox J, as later authorities bear out: see Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3; (2005) 218 ALR 283 at [31], identified a number of considerations which, depending on the circumstances, are relevant to what is, when all is said and done, an exercise of a broad judicial discretion. Those 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 into the hands of the applicant; and
• most importantly of all, the likely contribution of the document to achieving justice in the other proceeding.
6. Another observation which is frequently cited in applications of this kind is that made by McMurdo P in Northbuild Construction Pty Ltd v Discovery Beach Project Pty Ltd (No 4) [2011] 1 Qd R 145 at 150, [16], wherein her Honour stated:
The important public policy consideration behind implied undertakings of this kind are about securing justice between the parties and maintaining public confidence in the judicial system. It follows then that courts will usually relieve a party from its implied undertaking where, after giving proper consideration to the public policy reasons behind it the circumstances of the case demonstrated this is plainly in the interests of justice, ...
I have already discussed the circumstances by which the documents came into existence and came into the hands of the Commission. I accept that both parties intended to rely upon the documents during the hearing and that they would have been tendered and taken into evidence, whereupon they would have entered the public domain. This weighs for the grant of release.
Mr Palmer’s neutral attitude to the grant of release is an important consideration in the circumstances. The documents contain personal information about him.
It is for the Commission to identify the use to which the Documents will be put and how they will contribute to justice being achieved.[35]
[35] Angel Flight Australia v Civil Aviation Safety Authority [2020] FCA 1316 at [7].
By withdrawing his application for review, Mr Palmer has left the reviewable determination rejecting his claim in force, without present challenge. It is open to him to make another, or similar claim in the future. Should he do so, he will need to persuade a decision-maker that something has changed, or new evidence has come to light, sufficient to justify a positive determination. Similar considerations will apply should he seek to reagitate his existing claim, which otherwise has been brought to an end. These are matters for him.
It is in this context that the Commission asserts that, as no order has been made restricting access under s 35(2) of the AAT Act, the public is entitled to access all of the documents that were lodged with the Tribunal prior to the hearing. Support for this proposition is drawn from what the Tribunal said in Rana and Military Rehabilitation and Compensation Commission (Rana’s case)[36] -
61. If this is the correct interpretation, the obligation or implied undertaking would be taken to extend to all documents lodged with the Tribunal before the hearing of the proceeding to which they relate. Once that hearing had been held and no order had been made under s 35(2) restricting access or disclosure, the obligation or implied undertaking would not extend to those that had either been given in evidence before the Tribunal or lodged with the Tribunal in relation to that proceeding.
[36] [2009] AATA 361.
As can be seen, and when read in the context of preceding paragraphs (from [49]), the Tribunal’s observations about and discussion of the interaction between the Harman obligation and the purposes of s 35(3) of the AAT Act as it stood at the time are tinged with uncertainty. It is for this reason the paragraph on which the Commission relies begins with the words ‘[i]f this is the correct interpretation’. I do not propose to repeat the discussion here. It is sufficient to observe that s 35 of the AAT Act was amended after the decision in Rana’s case and the present terms of s 35(4) and (5) resolve the issue previously identified. Furthermore, lest there be any uncertainty, while “the undertaking is no answer to otherwise valid compulsive processes of law”,[37] and it may not be breached by a statutory requirement or power under which production may be compelled,[38] it is unlikely that the substantive legal obligation that arises from compulsion would give way to or be overtaken by the terms of s 35(5), under which it is desirable that ‘the contents of all documents lodged with the Tribunal should be made available to all parties’. Desirability is no substitute for compulsion.
[37] Cadbury Schweppes Pty Ltd (ACN 004 551 473) v Amcor Limited (ACN 000 017 372) [2008] FCA 398 at [13].
[38] Deputy Commissioner of Taxation v Rennie Produce (Aust) Pty Ltd (in liq) [2018] FCAFC 38 at [56].
Notwithstanding that Mr Palmer’s existing claim has been refused and his application for review has been withdrawn, the relevance of the Documents to the claim that his sleep apnoea is a service injury or a service disease for which the Commission should accept liability is very clear. It may be assumed that the Documents might have similar relevance to any future claim Mr Palmer might make in respect of a service-related sleep disorder. Certainly, the Commission’s request for release proceeds on that assumption.
Herein lies a difficulty: the Commission’s request for release has a hypothetical and prospective character. The intended use to which the Documents will be put is indeterminate insofar as it said it will be in response to a claim that has not yet been made or even foreshadowed.
The Commission seeks to draw support for its request from the Tribunal’s decision in LMFP and Comcare (Compensation),[39] in which it was decided that –
Leave is granted to the Respondent to utilise the following documents produced under summons for case management purposes in future decisions about the Applicant’s entitlement (if any) to compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) for the injuries alleged in applications for review made by the Applicant in eight proceedings pending before the Tribunal…
[39] [2017] AATA 1512.
The reasons given included –
3. It appears to me that this case is a proper one for the grant of leave for three reasons. First, the documents are sought by the Respondent for the proper purpose of claims management in pursuance of its statutory duties. Secondly, the documents would be available to be the subject of summonses to produce in due course in the event that Comcare makes a decision adverse to the claimant in future and the Applicant seeks review of those decisions. Thirdly, the Applicant when making the various claims made in the pending proceedings, authorised the Respondent to collect and retain information in handling the claims and it is likely that Comcare would have been able to obtain the documents produced under subpoena from the producing parties. The Applicant gave authority and consent to Comcare to collect “[their] personal information” from “[their] health professional or other health institution” “for the purposes of determining and managing [their] compensation claim and/or assessing [their] suitability to undertake a rehabilitation program and/or to assist Comcare in any actions authorized under the SRC Act”.
As can be seen, the Tribunal in that case was dealing with a request to use documents subject to the Harman obligation for purposes relating to injuries at the heart of applications then before the Tribunal in those proceedings. The leave granted was not open ended or in respect of a hypothetical case.
Such a case arose in JLXY and National Disability Insurance Agency,[40] in which the Tribunal declined to grant the release sought and said –
9. One of the main differences between the submissions of the parties on the present application is as to the utility of the evidence in question to events and circumstances which have not yet occurred.
10. It is better, in my opinion, that the application for the release of theimplied undertaking be considered when the utility, if any, of the lay and expert evidence given in the substantive proceedings can be determined more precisely.
11. For the present, the application is dismissed, and may be renewed after the proposed further application to the Respondent or to this Tribunal has been made, and when the evidence relied upon by the parents is known.
[40] [2021] AATA 144.
This is consistent with authority in respect of the principle that such matters should not be decided on hypothetical grounds.[41]
[41] See for example Polyaire Pty Ltd v K-Aire Pty Ltd [2011] SASC 176; (2011) 111 SASR 19 at [49].
I do not accept the proposition that a future request for release, should it become necessary, would be unduly costly or onerous for the Commission. There is no barrier to the Commission requesting release in the future, should Mr Palmer make a further claim in respect of a sleep disorder. In that circumstances, release could be sought well ahead of any further proceedings in the Tribunal, whereupon the summons power under s 40A of the AAT Act could be employed.
In the circumstances, the better course is for the Commission’s request to be raised and considered when the purposes to which the Documents will be put, and the utility and relevance of they might have in the determination of any future claim or action, can properly and more accurately be assessed.
Even though there is much that weighs in favour of granting the Commission’s request for release, including Mr Palmer’s neutral stance and the intended tender of the Documents into evidence, there are three serious impediments that weigh heavy against this course. Firstly, the Commission’s request is raised on purely hypothetical grounds in anticipation of a claim or some other action in respect of a sleep disorder by Mr Palmer that has not yet occurred, is not real and which has not been foreshadowed. Secondly, and in consequence, absent a claim in fact, it is not possible to prospectively assess the utility or relevance of the Documents to the Commission’s management or determination of hypothetical circumstances, on hypothetical grounds, in the service of justice to both parties. Presently, all that can be said is that the Documents may have some utility and relevance to a future claim of the kind the Commission has alluded to. Of course, a proper assessment of such matters is only possible once the subject and contents of the claim are known, should it eventuate, and materials have been adduced in support by Mr Palmer. Thirdly, in the hypothetical frame posed by the Commission, there is no special circumstance or good reason that might justify the grant of release.
For now, the request is refused. It can be renewed should it be necessary to do so if Mr Palmer makes a further claim, or he seeks to reagitate his existing claim which has been refused, and the utility and relevance of the Documents can be assessed in that context.
Decision
Request refused.
I certify that the preceding 78 (seventy eight) paragraphs are a true copy of the reasons for the decision herein of S. Webb, Member.
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Associate
Dated: 14 May 2021
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