Pidgeon and National Disability Insurance Agency

[2023] AATA 2207

Pidgeon and National Disability Insurance Agency [2023] AATA 2207 (25 July 2023)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2022/5120

Re:Glenda Pidgeon

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

INTERLOCUTORY DECISION

Tribunal:Senior Member Kate Buxton  

Date:25 July 2023  

Place:Brisbane

The application dated 19 July 2023, to release the Respondent from the substantive obligations (known as the Harman Undertaking) owed with respect to the document identified in that application, is refused.

.................................[SGD]....................................

Senior Member K Buxton

Catchwords

Application for release from implied undertaking – the Harmen Undertaking – when a release is required - use of documents produced under compulsion for collateral purposes – Hearne v Street statutory obligation – AAT General Practice Direction.

Legislation

Administrative Appeals Tribunal Act 1975(Cth)

National Disability Insurance Scheme Act 2013 (Cth)

Cases

Chin v Comcare [2017] AATA 634

Esso Australia Resources Ltd v Plowman [1995] HCA 19

Gower v Australian Capital Territory [2019] AATA 3947

Hearne v Street [2008] HCA 36

Porter v Australian Broadcasting Corporation (No 2) [2021] FCA 1036

Treasury Wine Estates Limited v Maurice Blackburn Pty Ltd [2020] FCAFC 226

Warner v Comcare [2017] AATA 2709

Secondary Materials

Administrative Appeals Tribunal General Practice Direction, 19 February 2019

REASONS FOR INTERLOCUTORY DECISION

Background

1. Ms Glenda Pigeon (‘the Applicant’) sought review of a decision that she did not meet the access criteria to become a participant in the National Disability Insurance Scheme (‘NDIS’). The Applicant and Respondent have recently agreed to resolve this review by inviting the Tribunal to make a decision under section 42C of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’), consistent with terms of agreement signed by both parties, that the Applicant does meet the access criteria.

2. During the course of the Tribunal’s alternative dispute resolution process and evidence gathering, both parties lodged various medical reports and other material on which they intended to rely.

   The Request for Release from the Implied Undertaking

3. On 19 July 2023, the Applicant filed a written request, signed on behalf of both the Applicant and the Respondent, applying by consent to the Tribunal for the Respondent to be released from the implied undertaking under Part 5 of the Tribunal’s General Practice Direction given under section 18B of the AAT Act in respect of the following document:

   (a)Ms Julie Newton’s Occupational Therapy report dated 4 May 2023, which was lodged with the Tribunal on behalf of the Respondent on 31 May 2023.

4. The stated reason for release was “… to enable the Respondent to use the report for the purpose of administering the National Disability Insurance Scheme Act 2013 (Cth) (‘NDIS Act’) in respect of the Applicant, in light of the agreement that she meets the access criteria”.

5. The issue for the Tribunal to consider is whether the Applicant’s and the Respondent’s joint request, for the Respondent to be released from implied undertaking with respect to the identified report, is to be granted.

   Consideration

6. Part 5 of the Tribunal’s General Practice Direction provides:[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.

   The 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.

   [1] Administrative Appeals Tribunal General Practice Direction, part 5.

7. The majority of the High Court in Hearne v Street (‘Hearne v Street’)[2] set out the following principle in relation to the implied undertaking and explored circumstances in which it ceases to be relevant:[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 the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence (emphasis added). 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…

   It is common to speak of the relevant obligation as flowing from an "implied undertaking”.

   [2] [2008] HCA 36.

   [3] Ibid, [96] – [97].

8. The court also noted that, whilst described in the language of an implied undertaking, the parties owed a substantive obligation to treat the documents in this way.[4] The Court described the broad types of material disclosed to which this principle applies, including documents produced on subpoena, documents produced pursuant to directions, witness statements and affidavits.[5]

   [4] Ibid, [106].

   [5] Hearne v Street, [96].

9. In Chin v Comcare (‘Chin’) and Warner v Comcare (‘Warner’),[6] the Tribunal followed the same approach in determining whether the implied undertaking applied in relation to Comcare's use of documents for claims management purposes.[7] The Tribunal in Chin noted Brennan J’s explanation in Esso Australia Resources Ltd v Plowman (‘Esso’),[8] of the “underlying principle” where there is an implied undertaking: ‘a party who obtains the production of documents or the disclosure of information for a particular purpose cannot use the documents or information for a “collateral or ulterior purpose”’.[9] After considering a number of authorities on the meaning of “collateral or ulterior purposes”, the Tribunal concluded that claims management purposes were not collateral to the proceedings in Chin.

   [6] [2017] AATA 634; [2017] AATA 2709.

   [7] Chin, [16]; Warner, [10].

   [8] [1995] HCA 19.

   [9] Ibid, [7] per Brennan J,

10. Once admitted into evidence, the document may be used by the Respondent in the discharge of its statutory functions. The Applicant would also no longer be subject to the undertakings. In Gower v Australian Capital Territory (‘Gower’)[10] the Tribunal confirmed that, after being taken into evidence, documents became publicly available:[11]

    The Reports were prepared with the view to them becoming evidence in this proceeding and were, accordingly, expected to enter the public domain when they were taken into evidence at a future hearing by the Tribunal. In this regard, s 35(5) of the Administrative Appeals Tribunal Act 1975 (Cth) sets out that “it is desirable … that evidence given before the Tribunal and the contents of documents received in evidence by the Tribunal should be made available to the public and to all the parties”. The fact that this proceeding may not reach a hearing (if, for instance, it was to settle beforehand) should not be determinative of a question of whether to release a party from the implied undertaking if there are good reasons to do so in advance of a document being taken into evidence. (emphasis added)

    [10] [2019] AATA 3947.

    [11] Ibid, [26].

11. In Porter v Australian Broadcasting Corporation (No 2) (‘Porter’)[12] the Full Court, adopting the reasoning in Treasury Wine Estates Limited v Maurice Blackburn Pty Ltd (‘Treasury Wine Estates’),[13] concluded that the obligation ‘ceased to apply on receipt of the document into evidence, because by that means (and subject to any contrary order) the document would have entered the public domain and lost any quality of confidentiality’.[14]

    [12] [2021] FCA 1036.

    [13] [2020] FCAFC 226.

    [14] Porter, [19].

12. Given that this matter will not proceed to a substantive hearing, the relevant document will not become part of the evidence and therefore cease to be a document to which an undertaking may attach. However, the document in question is not likely to fall within the category of documents to which the obligation, and the relevant practice direction, ever applied. The document was commissioned and arranged by the Respondent. There is no suggestion that the Occupational Therapy assessment was opposed by the Applicant, nor that the information provided in it by the Applicant to the assessor was given under compulsion. In any event, the document belongs to the Respondent, and was not, therefore, provided under compulsion to the Respondent. It follows that the document is not one caught by the substantive obligation described in Hearne v Street or by the practice direction that set out that obligation insofar as it affects parties to Tribunal proceedings.

13. In any event, when the Applicant is granted access to the NDIS, the Respondent is obliged to facilitate the preparation of a participant’s plan,[15] which will include the approval of a statement of participant of participant supports prepared with the Applicant.[16] This is not collateral to the access decision, but an essential ancillary task. Therefore, following the same reasoning as in Chin, use of the documents for the purpose of preparing the statement of participant supports would not be caught by the obligation or undertaking. The Respondent has broad-ranging statutory powers to request information from the Applicant, and from others, in order to determine the reasonable and necessary supports that are to be funded under the NDIS. Given its statutory obligation, the Respondent would likely be required to take account of information provided to it during the course of the Applicant’s request for access (including if that information was provided by the Applicant or gathered by the Respondent during the review at the AAT). It is only documents provided by compulsion (such as summonsed documents) for which a release may be required. The application to release the Respondent from the substantive obligations (known as the Harman Undertaking) is therefore unnecessary and should, accordingly, be refused.

    [15] NDIS Act, section 32.

    [16] NDIS Act, subsection 33(2).

    DECISION

14. The application dated 19 July 2023, to release the Respondent from the substantive obligations (known as the Harman Undertaking) owed with respect to the document identified in that application, is refused.

15.      

16.      

17.     I certify that the preceding 14 (fourteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member K Buxton

..................................[SGD]....................................

Associate

Dated: 25 July 2023