Re Rana and Military Rehabilitation and Compensation Commission
[2009] AATA 361
•18 May 2009
ADMINISTRATIVE APPEALS TRIBUNAL
)
) S 200600223 & S 2007/1885
GENERAL ADMINISTRATIVE DIVISION )Re:RANJIT RANA
Applicant
And:MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
Tribunal: Deputy President S A Forgie
Place: Melbourne
Date: 19 May 2009
CORRIGENDUM TO DECISION [2009] AATA 361
The Tribunal amends its decision and reasons for decision published on 18 May 2009 as follows:
1.Delete the first two lines under Catchwords and replace with:
“CATCHWORDS – COMPENSATION - applicable legislation – whether SRC Act or MRC Act – SRC Act”;
2. On page 3, delete paragraph 1 of the decision and replace it with:
“1. I must review the decisions of the respondent according to the law in the Safety, Rehabilitation and Compensation Act 1988 and not according to that in the Military Rehabilitation and Compensation Act 2004;”
S A FORGIE
Deputy President
CATCHWORDS – COMPENSATION – applicable legislation – whether SRC Act or MRC Act – MRC Act.
PRACTICE AND PROCEDURE – breach of confidence - undertaking or implied obligation not to disclose for an unrelated purpose documents or information disclosed in the course of proceedings - expert medical opinion prepared in part on basis of information obtained during examination for purpose of preparing report at request of Repatriation Commission for earlier and separate Tribunal proceedings – earlier report lodged in earlier Tribunal proceedings – Repatriation Commission obtained order relieving it of obligation or implied undertaking – nature of obligation or implied undertaking – basis of its operation in Tribunal proceedings – no breach of confidence.
PRACTICE AND PROCEDURE – National Privacy Principles - expert medical opinion prepared in part on basis of information obtained during examination for purpose of preparing report at request of Repatriation Commission for earlier and separate Tribunal proceedings – whether the use of that information was authorised – no breach of National Privacy Principles and none of Privacy Act.
PRACTICE AND PROCEDURE – Information Privacy Principles - expert medical opinion prepared in part on basis of information given to medical practitioner by respondent – whether its use was authorised – no breach of Information Privacy Principles and none of Privacy Act.
Administrative Appeals Tribunal Act 1975, ss 21, 25, 28, 29, 34, 35, 36, 37, 61
Military Rehabilitation and Compensation Act 2004, ss 6, 7
Military Rehabilitation and Compensation (Consequential and Transitional Provisions) Act 2004, ss 2, 4
Privacy Act 1988, ss 6, 6C, 6E, 6EAC, 13A, 10, 14, 16, 18BB, 18BD
Safety, Rehabilitation and Compensation Act 1988, ss 4, 4AA, 5A, 5B, 14, 57, 141, 142
Veterans’ Entitlements Act 1986
Caratti v Commissioner of Taxation [1999] FCA 1296
Complete Technology Pty Ltd v Toshiba (Australia) Pty Ltd (1994) 124 ALR 493; 53 FCR 125
Dent v Moore [1919] 26 CLR 316; 25 ALR 437
Director of Public Prosecutions v Sutcliffe [2001] VSC 43
Esso Australila Resources Ltd v Plowman (1995) 183 CLR 10; 128 ALR 391
Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316
Hearne v Street (2008) 235 CLR 125; 82 ALJR 1259; 248 ALR 609
Holpitt Pty Ltd v Varimu Pty Ltd (1991) 29 FCR 576; 103 ALR 684
Hong Ye v Minister for Immigration and Multicultural Affairs
Kimberley v Mineral Holdings Ltd (In liq) v McEwan [1980] 1 NSWLR 210
Otter Gold Mines Ltd v McDonald (1997) 76 FCR 467; 48 ALD 222; 147 ALR 322
Parsons v Martin (1984) 5 FCR 235; 58 ALR 395
Patrick v Capital Finance Corp (Aust) Pty Ltd (No 4) [2003] FCA 436
Prudential Assurance Co v Fountain Page [1991] 1 WLR 756; 3 All ER 878
Re Jack Freeman v MA Mckenzie; WM Mccubbery; DW Lording; DR Gauld and GJ Royal (Who Are Sued As the Chairman and Member of the Second Medical Services Committee of Inquiry of Victoria) [1988] FCA 308
Re Mr R and Commonwealth of Australia (1988) 15 ALD 167; [1988] AATA 133
Re Rana and Military Rehabilitation and Compensation Commission (2008) 48 AAR 385
Re Ranjit Rana and Repatriation Commission [2008] AATA 236
Re “SAN” and Comcare (2004) 81 ALD 149; [2004] AATA 445
Re SAN and Military Rehabilitation and Compensation Commission [2008] AATA 237
Re Skase and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 200
Smith Kline & French Laboratories (Aust) Ltd & Ors v Secretary, Department of Community Services and Health (1990) 22 FCR 73
Spalla and Ors v St George Motor Finance Ltd and Ors [2004] FCA 1014; 209 ALR 703
Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217; 110 ALR 685
The Commonwealth of Australia v John Fairfax & Sons Ltd (1980) 147 CLR 39; 55 ALJR 45; 32 ALR 485
Tournier v National Provincial and Union Bank of England [1924] 1 KB 461
DECISIONS AND REASONS FOR DECISIONS [2009] AATA 361
ADMINISTRATIVE APPEALS TRIBUNAL )
) S 2006/223 & S 2007/1885
VETERANS’ APPEALS DIVISION )Re:RANA RANJIT
Applicant
And:MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal: Deputy President S A Forgie
Date: 18 May 2009
Place: Melbourne
Decision:The Tribunal decides:
1.I must review the decisions of the respondent according to the law in the Military Rehabilitation and Compensation Act 2004 and not according to that in the Safety, Rehabilitation and Compensation Act 1988;
2.Professor Goldney did not breach the Privacy Act 1988 when, for the purpose of preparing a report in these proceedings, he relied on information previously given to him by the applicant for the purpose of preparing a report in earlier proceedings; and
3.The respondent did not breach the Privacy Act 1988 in giving Professor Goldney further information relating to the applicant for the purpose of his preparing a report for the purpose of these proceedings.
S A FORGIE
Deputy President
REASONS FOR DECISION
For reasons I give below, I have decided that the SRC Act and not the MRC Act is the legislation under which I must review the MRCC’s decisions.
The second issue that was raised concerned a report prepared by Professor Robert Goldney. He had prepared an earlier report for a different proceeding in the Tribunal in which Mr Rana sought review of a decision of the Repatriation Commission (Commission). These were the proceedings under the Veterans’ Entitlements Act 1986 (VE Act) (VE proceedings). The MRCC obtained a copy of that report after obtaining from Deputy President Jarvis a direction relieving the Commission from what he found to be its obligation not to disclose documents or information disclosed to it for the purposes of the VE proceedings. It then asked Professor Goldney to prepare a report based in part on that information obtained for the first report and in part on other information it provided to him.
The parties asked me to decide whether Professor Goldney’s preparing a report in those circumstances amounted to a breach of confidence owed by Professor Goldney or another to Mr Rana. I have decided that it did not. They have also asked me whether Professor Goldney breached the Privacy Act 1988 (Privacy Act) in doing so. I have decided that he did not.
BACKGROUND
On 30 August 2005, Mr Rana claimed compensation under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) in respect of “stress induced diabetes”[1] as a result of his employment by the Australian Army (Army). His employment in the Army began on 14 October 1980 and ended with his discharge on 13 July 1982. When asked what aspects of his employment contributed to his disease or illness, Mr Rana wrote:
“Stress induced paranoid schizophrenia and diabetes from physical, mental and other abuses.”[2]
He stated that he first noticed the disease on 29 August 2005, which was the day on which he first received treatment for it. A delegate of the Military Rehabilitation and Compensation Commission (MRCC) refused Mr Rana’s claim for compensation on the basis that, in summary, the issues had been the subject of earlier determinations and decisions. His decision was affirmed on 9 May 2007. Mr Rana applied for review of the MRCC’s decision in proceedings numbered 2007/1885 (MRCC diabetes proceedings).
[1] Documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T documents) in S2007/1885 (T2007/1885 documents) at 51
[2] T2007/1885 documents at 54
Earlier, in proceedings numbered S 200600223, Mr Rana had applied for review of a decision made by Comcare to refuse his claim for compensation under the SRC Act for paranoid schizophrenia (Comcare proceedings). Mr Rana attributed his condition to certain events that had occurred during his service in the Army.
In his claim form, Mr Rana signed a statement authorising:
“MCRS staff to obtain medical/psychological and rehabilitation information about me and to use such information as necessary to determine any entitlements I may have to benefits under the Safety, Rehabilitation and Compensation Act 1988.”[3]
[3] T documents at 51 and 54
When Mr Rana applied to the Tribunal for review of the decision, the MRCC applied for an order dismissing them on the basis that the Tribunal had already considered the claims and could not do so again. Alternatively, the MRCC sought an order under s 42B of the Administrative Appeals Tribunal Act 1975 (AAT Act) dismissing the application on the basis that it is frivolous and vexatious. For reasons I have already given,[4] I decided that Mr Rana’s application should not be dismissed. Relying on s 33(1)(c) of the AAT Act, I decided to limit the evidence that can be led regarding the events in Mr Rana’s employment to the findings of fact made by the Tribunal in the two previous proceedings.
[4] Re Rana and Military Rehabilitation and Compensation Commission (2008) 48 AAR 385
I then heard evidence on the substantive issues but it was agreed that the parties would make written submissions. Preliminary issues have arisen in the course of their preparing them. The first relates to whether Mr Rana’s claim for compensation should be determined according to the Safety, Rehabilitation and Compensation Act 1988 (SRC Act), under which Mr Rana had made both his claims, or to the Military Rehabilitation and Compensation Act 2004 (MRC Act), which came into operation on 1 July 2004. Mr Rana submitted that the Tribunal must apply the MRC Act as:
“… The logic follows that the applicant was initially compensated under 1971 act [Compensation (Commonwealth Government Employees) Act 1971] and the two tribunals considered matters once under the 1971 act (the AAT of 1988[[5]]) and SRCA of 1988 (by the AAT of 2004[[6]]). Thus, by deduction and inference this tribunal must apply the MRCA of 2004. See the earlier two decisions of the two tribunals involving this applicant.”
[5] Re Mr R and Commonwealth of Australia (1988) 15 ALD 167; [1988] AATA 133
[6] Re “SAN” and Comcare (2004) 81 ALD 149; [2004] AATA 445
On behalf of the MRCC, Ms Bean submitted that Mr Rana’s claim must be resolved according to the SRC Act and not the MRC Act. She referred to the provisions of the SRC Act, the MRC Act and the Military Rehabilitation and Compensation (Consequential and Transitional Provisions) Act 2004 (Transitional Act).
CONSIDERATION: does the MRC Act or the SRC Act apply?
The substantive provisions of the MRC Act first came into operation on 1 July 2004. It provides for the “… rehabilitation, compensation and other entitlements for veterans, members and former members of the Defence Force, and for other purposes.”[7] By way of example, s 23(1) provides that the MRCC must accept liability for an injury sustained, or a disease contracted, by a person if it is a “service injury or disease” under s 27, it is not prevented from accepting liability for it under Part 4 and a claim has been made under s 319. The terms “service injury” and “service disease” are defined in s 5 to have the meanings given by ss 27, 29(1) and (2) and 30. Section 27 frames its definitions by reference to the person’s “defence service”, ss 29(1) and (2) by reference to treatment provided by the Commonwealth and s 30 by reference to its having been contributed to in a material degree by, or to have been aggravated by, any defence service rendered by the person. On their face, nothing limits the time at which the defence service was rendered, the treatment received or the injury occurred or disease was contracted.
[7] MRC Act, Long Title
The Transitional Act purports to place limitations upon the application of the MRC Act. Its first three sections dealing with the short title, commencement and consequential amendments made to the SRC Act, the Veterans’ Entitlements Act 1986 (VE Act) and various other enactments commenced operation on 27 April 2004. Its remaining provisions were expressed to come into operation “At the same time as section 3 of the MRCA commences”[8] i.e. 1 July 2004. The date that is ascertained in that way is referred to as the “commencement date” in the Transitional Act.[9] The purpose of that legislation is “… to amend laws, and to deal with transitional matters, in connection with the …” MRC Act.
[8] Transitional Act, s 2(1), Column 2
[9] Transitional Act, s 4(1)
Part 2 of the Transitional Act sets out those injuries, diseases, deaths and losses to which the MRC Act applies. Part 3 is concerned with those who have injuries or diseases coming under the VE Act or the SRC Act as well as the MRC Act. Part 4 sets out other transitional provisions concerning matters such as the offset of amounts of Commonwealth superannuation under the MRC Act, ongoing rehabilitation under the MRC Act for persons undergoing rehabilitation under the SRC Act or the VE Act and the transfer of certain schemes and principles from the VE Act.
It is clear from the structure and substance of the Transitional Act that, as well as the mirroring of its commencement dates with those of the substantive provisions of the MRC Act, it is intended to be read with the MRC Act. It is intended to be read with and to regulate the transition from the regime of compensation that operated under the VE Act and the SRC Act in relation to members and former members of the Defence Force to that provided under the MRC Act.
As Mr Rana has claimed compensation in relation to an injury or disease relating to defence service rather than in relation to an aggravation of an injury or disease, I will refer only to s 7(1) of the Transitional Act. It provides:
“The MRCA applies to a person’s injury, disease or death if:
(a)the injury is sustained, the disease is contracted, or the death occurs, on or after the commencement date; and
(b)the injury, disease or death either:
(i)relates to defence service rendered by the person on or after that date; or
(ii)relates to defence service rendered by the person before, and on or after, that date.”
The expression “defence service” means “warlike service, non-warlike service or peacetime service”.[10] The terms “warlike service” and “non-warlike service” each refers to service with the Defence Force that is determined by the Defence Minister to be service of that kind.[11]
[10] MRC Act, s 6(1)(d)
[11] MRC Act, s 6(1(a) and (b)
Mr Rana first became aware that he was suffering from diabetes on
29 August 2005. I am uncertain as to the date on which he first suffered from paranoid schizophrenia but it is not important to enquire further at this stage. Assuming that he contracted diabetes on or about 29 August 2005, he would meet the criterion specified in s 7(1)(a) i.e. he contracted it on or after 1 July 2004. That is the date on which the MRC Act commenced operation and which is defined in s 4(1) of the Transitional Act to be the “commencement date”.
The fact that Mr Rana may meet the criterion in s 7(1)(a) is not enough to bring him within the application of the MRC Act. Section 7(1) requires that one of the criteria specified in s 7(1)(b) is also satisfied. Whether the criterion specified in
ss 7(1)(b)(i) or (ii) is considered, Mr Rana satisfies neither. He cannot do so as his diabetes cannot relate to defence service rendered on or after 1 July 2004 as he completed his defence service on 13 July 1982. For the same reason, his paranoid schizophrenia cannot relate to defence service rendered on or after 1 July 2004.
Having regard to the Transitional Act, it follows that the MRC Act does not apply to Mr Rana’s claim. That this is the correct interpretation is reinforced by s 4AA of the SRC Act. Among other matters, it relates to workers’ compensation for employees of the Commonwealth. Subject to qualifications that are irrelevant for these purposes, it provides that Comcare is liable to pay compensation “… in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.”[12] The word “injury” has the meaning given by s 5A.[13] In general terms and subject to qualifications that are not relevant in this context, an “injury” includes “a disease suffered by an employee”[14] and “an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment”.[15] In certain circumstances, aggravations of an injury or a disease are also encompassed within the terms “injury” and “disease”.[16]
[12] SRC Act, s 14(1)
[13] SRC Act, s 4(1)
[14] SRC Act, s 5A(1)(a)
[15] SRC Act, s 5A(1)(b)
[16] SRC Act, ss 5A(1)(c) and 5B
Suffering an injury or disease as defined does not automatically bring a person within the scope of the SRC Act. Regard must be had to s 4AA, which provides that a person is taken not to have suffered an injury in certain circumstances. I will refer only to s 4AA(2) which refers to a disease, or an aggravation of a disease, but s 4AA(1) is to similar effect with regard to an injury, or an aggravation of an injury. Section 4AA(2) provides:
“An employee is taken not to have suffered an injury, being a disease, or an aggravation of an injury, if:
(a)the employee is a member (within the meaning of the MRCA); and
(b)the disease or aggravation is contracted on or after the MRCA commencement date; and
(c)the disease or aggravation is contributed to in a material degree by the employee’s employment as a member; and
(d)the employment occurs either:
(i)on or after the MRCA commencement date; or
(ii)before, and on or after, the MRCA commencement date.”
As Mr Rana completed his defence service on 13 July 1982, his situation does not come within that described in either s 4AA(2)(d)(i) or (ii). Both require that the employment, of some part of the employment, which he claims contributed to his disease or aggravation, to a significant degree, occurred after the MRCA commencement date. That date is 1 July 2004. As no part of the employment to which he relates his conditions occurred after 1 July 2004, Mr Rana is not “taken not to have suffered an injury, being a disease, or an aggravation of a disease” by virtue of the operation of s 4AA(2). In other words, he is not excluded from the operation of the SRC Act.
CONSIDERATION: is Professor Goldney’s report in breach of confidence?
Background
Among the applications that Mr Rana has made to the Tribunal is his application to review a decision made by the Commission. Mr Rana had claimed a pension under the VE Act in respect of paranoid schizophrenia and diabetes. The Commission rejected his claim and the Veterans’ Review Board (VRB) affirmed his decision. Mr Rana applied to the Tribunal for review of the VRB’s decision. Those proceedings are numbered No S 200500033 (VE proceedings). The Australian Government Solicitor (AGS) represented the Repatriation Commission in the proceedings in the Tribunal. Acting on behalf of the Commission, the AGS asked Professor Robert Goldney to prepare a report on certain issues arising in those proceedings. Professor Goldney is a Professor of Psychiatry at the University of Adelaide. He prepared a report in response to AGS’s request.
Mr Rana has had a number of other proceedings in the Tribunal. One, numbered S 200100378 (completed Comcare proceedings), related to a decision made by Comcare under the SRC Act. Another two are the applications that I am now concerned with: the MRCC proceedings (200701885) and the Comcare proceedings (S200600223).
Mr Rana also has proceedings in other courts. In the Federal Court, for example, he brought proceedings against the Commonwealth of Australia and Brigadier Craig Orme as delegate of the Chief of the Army: proceedings numbered SAD 111 of 2007. He sought relief on the basis that the respondents had discriminated against him on the basis that he is Asian and is suffering from a psychiatric condition. They have done so, Mr Rana pleaded, in Commonwealth laws relating to his ability to change his Army records and in programmes relating to pensions administered by the Defence Force Retirement Death Benefits Authority. In the alternative, Mr Rana pleaded that he should be granted relief on the basis that the respondents owed him a duty of care in respect of the amendment of his Army records and of his obtaining a pension and that they breached their duty.
When he completed his claim for diabetes and lodged it with the MRCC, Mr Rana signed an authorisation permitting:
“MRCS staff to obtain medical/psychological and rehabilitation information about me and to use such information as necessary to determine any entitlements I may have to benefits under the Safety, Rehabilitation and Compensation Act 1988.”[17]
[17] T2007/1885 documents at 55
In the VE proceedings, the Commission asked the MRCC to provide it with material that it had filed, tendered or otherwise obtained in proceedings relating to the Comcare proceedings and the MRCC proceedings.
At the same time, the Commonwealth of Australia and the Chief of Army asked the Commission to give them material filed, tendered or otherwise obtained with respect to the Comcare proceedings, VE proceedings and the MRCC proceedings for use in proceedings in the Federal Court numbered SAD 111 of 2007.
The Commission asked the Tribunal to release it from its implied undertaking with respect to the material obtained in connection with the VE proceedings so that it might release that material “… to other Commonwealth agencies for the purposes of legal proceedings involving Mr Rana and in compliance with any applicable law.”[18] The MRCC made a similar application in relation to its implied undertakings in the MRCC proceedings. As it now had responsibility for determining defence-related claims previously determined by Comcare,[19] the MRCC made a similar application in relation to the implied undertakings of Comcare in relation to the Comcare proceedings.
[18] [2008] AATA 236 at [5]
[19] Under s 142(1) of the SRC Act, one of the functions of the MRCC is to determine defence-related claims under the SRC Act and to do anything incidental to the performance of that function and that would have been required of Comcare. A “defence-related claim” is a claim made under the SRC Act in respect of an injury, loss, damage or death to which the MRC Act does not apply and that relates to service that occurred before 1 July 2004: SRC Act, s 141.
Both applications were heard by Deputy President Jarvis. In the VE proceedings, he directed that
“(1) the respondent [Commission] may disclose the documents (or copies thereof) provided or to be provided to it in relation to the within proceedings to the Military Rehabilitation and Compensation Commission, the Commonwealth of Australia and Brigadier Orme, for the purpose of those parties using such documents or copies in order to investigate and, if so advised, defending the claims respectively made against them by the applicant in proceedings numbered S 200600223 [Comcare proceedings] and 2007/1885 [MRCC proceedings] in this tribunal and in action number SAD 111 of 2007 in the Federal Court of Australia;
(2)except as provided for in paragraph (1) above, the respondent is not released from its implied undertaking not to use such documents for any collateral purpose, and not to communicate such documents to any third party; …
(3) …”[20]
[20] Re Rana and Repatriation Commission [2008] AATA 236 at [10]
In the completed Comcare proceedings, he made similar orders permitting the MRCC to disclose documents produced under summons and exhibits tendered in the proceedings to the Commission, the Commonwealth of Australia and Brigadier Orme for certain purposes. In so far as Deputy President Jarvis’s direction affects these proceedings, he directed that:
“(2) the respondent [MRCC] may use the documents, exhibits or copies referred to … in order to investigate and, if so advised, defend the claims made against it by the applicant in proceedings numbered S 200600223 [Comcare proceedings] and 2007/1885 [MRCC proceedings] in this tribunal; and
(3)except as provided for in paragraphs (1) and (2) above, the respondent is not released from its implied undertaking not to use for any collateral purpose, and not to communicate to any third party, such documents or exhibits.”[21]
[21] Re SAN and Military Rehabilitation and Compensation Commission [2008] AATA 237 at [36]
Basis on which a party may use documents produced in proceedings in the Tribunal
Although the issues raised by the parties focus only on principles relating to breach of confidence and breach of privacy, I think that I should consider those issues against the wider backdrop of the access that can be had to, and the use that can be made of, documents and evidence given to the Tribunal. I realise that Deputy President Jarvis did this to some extent in Re Rana and Repatriation Commission and Re SAN and Military Rehabilitation and Compensation Commission but I want to approach it from a slightly different point of view.
Deputy President Jarvis’s direction
Deputy President Jarvis was asked to release each of the Commission and the MRCC from its:
“… implied undertaking not to communicate to third parties documents obtained in connection with the proceedings to the extent necessary to allow disclosure of the material to other Commonwealth agencies involved in other proceedings subsequently brought by the applicant. …”[22]
[22] [2008] AATA 237 at [2]
He decided the matter on that basis but, in the course of his reasons, he referred to two cases to support the proposition that “… the implied undertaking extends to a stranger who comes into possession of documents but was not a party to the proceedings in which the documents were obtained …”.[23] The two cases to which Deputy President Jarvis referred were Patrick v Capital Finance Corp (Aust) Pty Ltd (No 4)[24] and Spalla and Ors v St George Motor Finance Ltd and Ors.[25]
[23] [2008] AATA 237 at [10]
[24] [2003] FCA 436 at [16]
[25] [2004] FCA 1014 at [40]; (2004) 209 ALR 703, Ryan J
The obligation that is referred to as an implied undertaking
A few months after Deputy President Jarvis made his direction, the High Court referred to the Spalla case in Hearne v Street.[26] The High Court considered, among other matters, whether a servant or agent of a party (who is subject to the implied undertaking) is also liable for breach of that obligation as if he or she had personally given such an undertaking in circumstances in which he or she is aware that the documents were prepared for legal proceedings.
[26] [2008] HCA 36; (2008) 235 CLR 125; (2008) 248 ALR 609; 82 ALJR 1259
I will spend a moment on the principles described in Hearne v Street as it is important to understand the principles underpinning the implied undertaking before I can consider whether and, if so, how they apply in the Tribunal. Gleeson CJ said that the implied undertaking was described as “… now better understood as a substantive legal obligation”.[27] The majority, Hayne, Heydon and Crennan JJ also spoke in terms of obligation.[28] The advantages of doing so were described by Hobhouse J in the earlier case of Prudential Assurance Co v Fountain Page:[29]
“ 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.”[30]
[27] [2008] HCA 36; (2008) 235 CLR 125; (2008) 248 ALR 609; 82 ALJR 1259 at [3]; 131; 612; 1262 per Gleeson CJ referring to the joint judgment of Hayne, Heydon and Crennan JJ at [108]; 160; 636; 1280 and see also per Kirby J at [56]; 145, 624, 1271
[28] [2008] HCA 36; 2008) 235 CLR 125; (2008) 248 ALR 609; 82 ALJR 1259 at [96]; 154-5; 631; 1276-7 (footnotes omitted)
[29] [1991] 3 All ER 878; 1 WLR 756
[30] [1991] 3 All ER 878; 1 WLR 756 at 885, 764
In adopting this passage, Hill J in Complete Technology Pty Ltd v Toshiba (Australia) Pty Ltd[31] went on to add:
“ The case makes clear that since the duty is owed to the court an injunction would issue to restrain a breach of the duty, which breach would constitute a contempt of court.”[32]
[31] (1994) 53 FCR 125; 124 ALR 493
[32] (1994) 53 FCR 125; 124 ALR 493 at 132; 501
In Hearne v Street, Hayne, Heydon and Crennan JJ stated the obligation:
“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 Aton Piller order …, witness statements served pursuant to a judicial direction … and affidavits …”[33]
[33] [2008] HCA 36; (2008) 235 CLR 125; (2008) 248 ALR 609; 82 ALJR 1259 at [96]; 154; 632; 1276 (footnotes omitted)
The bases for both obligation and the qualification to it is found in the judgment of Mason CJ in Esso Australia Resources Ltd v Plowman:[34]
“… 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 compelled 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.”[35]
[34] [1995] HCA 19; (1995) 183 CLR 10; 128 ALR 391
[35] [1995] HCA 19; (1995) 183 CLR 10; 128 ALR 391 at 32; 403 per Mason CJ with whom Dawson and McHugh JJ agreed
The obligation extends beyond the parties to the proceedings. “To be effective, the undertaking must bind the litigant by whom it is given and his or her privies”.[36] The majority in Hearne v Street who approved this principle did not go on to identify those who come within the description of “privies”. Gleeson CJ said that it was unnecessary to do so in light of the terms in which the issue had been expressed.[37] The majority did, though, refer to the judgment of Anderson J, with whom Pidgeon and Ipp JJ concurred, in Hamersley Iron Pty Ltd v Lovell[38] with seeming approval. His Honour had said:
“The implied undertaking is binding upon anyone into whose hands the discovered documents come, if he knows that they were obtained by way of discovery”.
[36] Spalla and Ors v St George Motor Finance Ltd and Ors [2004] FCA 1014 at [40]; (2004) 209 ALR 703 at [40]; 717 approved by Hayne, Heydon and Crennan JJ in Hearne v Street [2008] HCA 36; 2008) 235 CLR 125; (2008) 248 ALR 609; 82 ALJR 1259 at [110]; 161; 637-8; 1281 and Kirby J at [57]; 145; 624; 1271
[37] [2008] HCA 36; 2008) 235 CLR 125; (2008) 248 ALR 609; 82 ALJR 1259 at [4]; 131; 612; 1262
[38] (1998) 19 WAR 316 at 334-335
The majority in Hearne v Street went on to say:
“There is no support in the authorities for the idea that knowledge of anything more than the origins of the material in legal proceedings need be established. In particular, there is no support for the idea that knowledge of the ‘implied undertaking’ and its consequences should be proved, for that would be to require proof of knowledge of the law, and generally ignorance of the law does not prevent liability arising.”[39]
[39] [2008] HCA 36; (2008) 235 CLR 125; (2008) 248 ALR 609; 82 ALJR 1259 at [112]; 161; 638; 1281
They did not go on to consider what was encompassed within the obligation not to “use” the documents or information for any purpose other than that for which it was given. Gleeson CJ expressly declined to do so for, like the question regarding the class of persons to whom the obligation extends, it was a question that could cause difficulties of a sort that did not arise in the case before the court.[40]
[40] [2008] HCA 36; 2008) 235 CLR 125; (2008) 248 ALR 609; 82 ALJR 1259 at [4]; 131; 612; 1262
A court’s power to release a party from an implied undertaking
Courts have inherent power to prevent abuse of their own processes.[41] That has been recognised in relation to the Federal Court, which has been created by statute.[42] As Hill J said in Complete Technology Pty Ltd v Toshiba (Australia) Pty Ltd,[43] the existence of the obligation and the fact that it is owed to the court is reflected, in part, in O 33 r 5 of the Federal Court Rules:
“(1) A party may, with the leave of the Court, but saving all just exceptions, read evidence taken, or an affidavit filed, in other proceedings.
(2) Subrule (1) does not enable evidence taken, or an affidavit filed, in other proceedings to be read as evidence on an issue at a trial, except in relation to the proof of particular facts.”
[41] Kimberley v Mineral Holdings Ltd (In liq) v McEwan [1980] 1 NSWLR 210 at 216 per Hope and Glass JJA
[42] Otter Gold Mines Ltd v McDonald (1997) 76 FCR 467; 147 ALR 322; 48 ALD 222 at 472; 326; 226 and the cases referred to therein
[43] (1994) 53 FCR 125; 124 ALR 493
His Honour referred to cases which had read this rule as extending beyond documents produced on discovery and encompassing witness statements:
“… Should a party desire to make use of such documents or statements, special circumstances must prevail before leave of the Court will be granted. It may be noted that O 33, r 5 is expressed in terms of leave and does not, as such, refer to ‘special circumstances’. In any event, Burchett J in Holpitt,[[44]] followed by Wilcox J in Springfield Nominees,[[45]] made it clear that by ‘special circumstances’ was meant:
‘Special [features] which [afford] a reason for releasing or modifying the undertaking.”
See Holpitt (at FCR 578-9); Springfield Nominees (at FCR 223-5) where Wilcox J, after summarising the cases said (at FCR 225; ALR 693):
‘ For “special circumstances’ to exist it is enough that there is a special feature of the case which affords a reason for modifying or releasing the undertaking and is not usually present. The matter then becomes one of the proper exercise of the court’s discretion, many factors being relevant. It is neither possible nor desirable to propound an exhaustive list of those factors. But plainly they include the nature of the document, the circumstances under which it came into existence, the attitude of the author of the document and any prejudice the author may sustain, whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain, the nature of that information of the document (in particular whether it contains personal data or commercially sensitive information), the circumstances in which the document came into the hands of the applicant for leave and, perhaps the most important of all, the likely contribution of the document to achieving justice in the second proceeding.’
It follows from the existence of this duty that, unless leave of the court has been obtained, an injunction would issue to restrain use of witness statements filed in other proceedings where the facts are such as to warrant the grant of such an injunction.”[46]
[44] Holpitt Pty Ltd v Varimu Pty Ltd (1991) 29 FCR 576; 103 ALR 684
[45] Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217; 110 ALR 685
[46] (1994) 124 ALR 493 at 501-502
The application of the obligation in the Tribunal
In Otter Gold Mines Ltd v McDonald,[47] Sundberg J decided that the obligation or implied undertaking extends to proceedings in the Tribunal in so far as documents are produced under compulsion. Compulsion, his Honour said, is the true basis on which the implied undertaking lies.[48] That was the basis on which the documents in question had been produced to the Tribunal in the proceedings with which he was concerned. The documents:
“… were produced pursuant to a summons under s 40(1A)(c) of the AAT Act which empowers the Registrar to summon a person to appear before the Tribunal at the hearing of a proceeding to produce books and documents in the possession, custody or control of the person that are mentioned in the summons. Failure to comply with the summons without reasonable excuse is an offence under s 61(1), and an offence under s 63(d) – doing an act or thing that would, if the Tribunal were a court of record, constitute a contempt of that court. …”[49]
[47] (1997) 76 FCR 467
[48] (1997) 76 FCR 467 at 472
[49] (1997) 76 FCR 467 at 472
The Tribunal’s power to release a party from an implied undertaking
In the Otter Gold case, Sundberg J considered a submission that the Tribunal has no inherent powers and is confined to the powers that it is given in the Administrative Appeals Tribunal Act 1975. He referred to the judgment of Bowen CJ, Northrop and Toohey JJ in Parsons v Martin[50] in which they had said of the powers of the Courts of Petty Sessions of Western Australia:
“ In our opinion a court exercising jurisdiction conferred by statute has powers expressly or by implication conferred by the legislation which governs it. This is a matter of statutory construction. We are of the opinion also that it has in addition such powers as are incidental and necessary to the exercise of the jurisdiction or the powers so conferred. In view of the way in which the phrase ‘inherent jurisdiction’ is used in many of the cases, it seems advisable generally to avoid the use of it to refer to this incidental and necessary power of a statutory court.”[51]
[50] (1984) 5 FCR 235; 58 ALR 395
[51] (1997) 76 FCR 467 at 473
Sundberg J concluded:
“ The power to release from the implied undertaking of confidentiality 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.”[52]
His Honour went on to decide that the Tribunal had the power to release. He did so even though the Tribunal does not have the benefit of a provision such as O 33 r 5. His decision must rest solely on the basis that the Tribunal has the power to compel the production of documents and of information and evidence.
The principles determining when the obligation arises and the power to release may be exercised
[52] (1997) 76 FCR 467 at 473
A. General principles
It seems to me that the authorities to which I have referred have expressed obligation in terms slightly wider than those used in the proceedings before Deputy President Jarvis. The obligation they have described is cast in terms of a party’s not being permitted to “use it for any other purpose other than that for which it was given unless it is received into evidence”. The application to Deputy President Jarvis was framed on the basis that the implied undertaking was “not to communicate to third parties documents obtained in connection with the proceedings” and no qualification was expressed. It may well be that there are circumstances in which communicating information to third parties may amount to its being used for a purpose other than that for which it was given but there will also be circumstances in which the two are not necessarily the same. An obvious example is provided by the qualification to which Hayne, Heydon and Crennan JJ referred. The qualification relates to a document or information that is received into evidence. Communication of the document or information to a third person in the context of a discussion of the evidence and the case would not usually equate with its being used for a purpose other than that for which it was given.
In looking at the parameters of the Tribunal’s power to release a party from the obligation, Sundberg J referred to the passage from Springfield Nominees Pty Ltd v Bridgelands Securities Ltd, to which I have already referred.[53] He did so in the Otter Gold case but had no need to consider the factors further in the context of that case. I think that I do need to go further in order to consider Mr Rana’s submissions regarding breach of confidence and of privacy.
[53] See [42] above
I will begin with the Tribunal’s role to review administrative decisions. The administrative decisions that it reviews are decisions that are made under enactments and that create rights and impose obligations. They are made on applications lodged in the Tribunal and so, for the most part, by applicants who are not government agencies. Therefore, for the most part, decisions are brought to the Tribunal by private individuals. Those decisions, however, have been made by government agencies against a regulatory framework that affects not only the persons applying for their review but others to whom that regulatory framework applies or may apply. Some decisions may concern the distribution of the common wealth of the Australian community; be it monetary or otherwise. Others may concern the grant of licences or privileges to some but not to others. If the public is to have confidence in a public administration that makes decisions of these sorts, there must not only be consistency in its decision-making but its decisions must be seen to be consistent.
Thoughts such as these would seem to be at the heart of s 35 of the AAT Act. It provides that, subject only to exceptions in s 35 itself and any specific modification of s 35 by another enactment,[54]the hearings of those proceedings must be held in public.[55] Parliament has specifically stated:
“… that it is desirable … that evidence given before the Tribunal and the contents of documents lodged with the Tribunal or received in evidence by the Tribunal should be made available to the public and to all the parties, but shall pay due regard to any reasons given to the Tribunal why the … disclosure of the evidence or the matter contained in the document should be prohibited or restricted.”[56]
[54] AAT Act, s 25(6)
[55] Administrative Appeals Tribunal Act 1975 (AAT Act), s 35(1)
[56] AAT Act, s 35(3)
This provision does not refer to the use that a party may make of the documents but it sets the context in which any obligation and any release from an obligation must be considered. It places a considerable emphasis not only upon the parties’ having access to documents and information but upon the public’s doing so. It places emphasis upon the public’s having access not only to “evidence given before the Tribunal and the contents of documents … received in evidence before the Tribunal …” but to the “contents of documents lodged with the Tribunal”. Section 35(2)(b) gives the Tribunal power to make orders prohibiting or restricting disclosure of either or both to the public. Section 35(2)(c) gives it the same power in relation to disclosure to the parties. The result seems to be that Parliament intended that the general rule should be that not only evidence given before the Tribunal, whether in documentary or some other form, but also documents lodged with the Tribunal should be available to the public.
B.The principles underpinning s 35(3) determine scope: wider interpretation
Section 35(2) appears to incorporate a different emphasis from that found in the obligation as it applies to the courts. The qualification to the obligation not to use documents or information is expressed in terms of their having been “received into evidence”. That is a class of documents or information which s 35(3) envisages should normally be made available to the public. It would follow that, unless the Tribunal were to make an order restricting access to the document or information, the obligation would not apply to it just as it would not apply in a court.
Section 35(3), though, envisages a wider class of documents in the public arena than those received in evidence. It envisages that it is also desirable that the contents of documents lodged with the Tribunal are available to the public. Section 35(3) does not distinguish between documents lodged with the Tribunal voluntarily or in compliance with directions made by the Tribunal. Apart from affidavits and possibly documents produced for the taxation of costs, each of the documents described by the majority in Hearne v Street has been produced involuntarily in a court. Compulsion was said by the majority in Hearne v Street, Sundberg J in Otter Gold and by Mason CJ in Esso Australia Resources Ltd v Plowman to be the foundation of the obligation. I suggest that publicity is at the foundation of the qualification. As Mason CJ said in Esso Australia Resources Ltd v Plowman, once “material is adduced in evidence in court proceedings it becomes part of the public domain, unless the court restrains publication of it”.
If Parliament intended those principles to apply to the Tribunal with regard to documents regardless of whether there had been a hearing of the application or not,[57] there would generally be no implied undertaking in relation to, or obligation not to use, evidence given before the Tribunal and to the contents of documents lodged with the Tribunal or received in evidence. The implied undertaking or obligation would only arise if, and to the extent that, an order restricting access to the evidence or documents were made under s 35.
[57] In Re Skase and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 200 at [43]-[45]
This view of the implied undertaking or obligation is consistent with the view reached by Sundberg J in the Otter Gold case. His Honour considered the obligation in relation to documents that had been produced to the Tribunal in response to a summons issued under s 40(1A)(c) of the AAT Act. The element of compulsion was present in their production. The documents could not be said to have been “lodged with the Tribunal”.
The Full Court considered what was meant by “lodged” in Hong Ye v Minister for Immigration and Multicultural Affairs[58] and concluded:
“… [W]hen the question is not whether a proceeding has commenced but merely 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.”[59]
[58] (1998) 82 FCR 468; 153 ALR 327; 55 ALD 358
[59] (1998) 153 ALR 327 at 332 and see earlier at 330. The Full Court distinguished “lodged” from “filed”: “‘lodging’ a document which is an act of a party and ‘filing’ a document which is an act of the court.”: at 332
It might be thought that this is wide enough to capture documents produced in response to a summons issued under s 40(1A) of the AAT Act. I do not believe that it is. In so far as it is directed to documents, books or things in the possession, custody or control of the person to whom it is directed, a summons requires that person to “produce” them to the Tribunal. A summons to produce documents must accord with either Form 8 or 9 in Schedule 1 of the Administrative Appeals Tribunal Regulations 1976 (Regulations). Form 8 is headed “Summons to give evidence and produce documents” and Form 9 is limited to the production of documents.
There is a clear distinction between giving evidence and producing documents. There is also a clear distinction between producing documents and lodging documents. There are many references to lodging documents in the AAT Act.[60] Each refers to steps taken by a party to a proceeding or by a person who will become a party. Those steps are taken to give documents to the Tribunal. The word “produce” or a variation of it is used in only four provisions in the AAT Act. One is s 40(1A) giving the Tribunal power to issues summonses. Another is s 61(3) which provides that it is an offence if, having been given a summons under the AAT Act to “produce a book, document or thing” and without reasonable excuse,[61] a person fails to comply with that summons.
[60] AAT Act, ss 21(2), 28(3A)(b), 29(1)(d), 29(4), 29A(2), 29B, 34D(1)(b), 34J, 35(2)(b) and (c), 35(3) and (3)(b), 35AA(c), 36(2), 36B(2) and 37(1), (1AA), (1AB), (1AC), (1AE), (1AF), (1A), (1B) and (2)
[61] AAT Act, s 61(4)
The third and fourth provisions are ss 36(2) and 36B(2). They mirror each other with one relating to public interest certificates by the Commonwealth Attorney-General and the other with those by State Attorney-Generals. Those certificates are to the effect that disclosure of matter in a document would be contrary to the public interest. Sections 36(2) and 36B(2) each serve two functions. One is to state that:
“A person who is required by or under this Act to disclose the information, or to produce to, or lodge with, the Tribunal the document in which the matter is contained, for the purposes of a proceeding is not excused from the requirement …”.
The other is to require the Tribunal to ensure that the information or matter contained in the document is not disclosed to any person other than the member constituted for the purposes of the proceeding and:
“… in the case of a document produced to or lodged with the Tribunal, to ensure the return of the document to the person by whom it was produced or lodged.”
Sections 36(2) and 36B(2) clearly envisage a distinction between lodgement and production. That is consistent with the way in which those two words, or derivatives of them, are used in the sections of the AAT Act to which I have referred. In view of that, it seems to me that Parliament has deliberately chosen to exclude from s 35(3) documents that have been produced to the Tribunal under a summons. That is to say, Parliament has not regarded them as being documents that it considers should be made available to the public. That interpretation is consistent with the powers given to the Tribunal under s 35(2) to make directions prohibiting or restricting the publication of matters contained in evidence given before the Tribunal or in documents lodged with the Tribunal. There was no need to give the Tribunal any such power as documents produced to the Tribunal under a summons would not be available to the public and would, so far as the parties are concerned, be subject to the implied undertaking or obligation not to use them for purposes other than those connected with the proceedings in which they were summonsed.
C.The principles underpinning s 35(3) determine scope: a narrower interpretation
The principles underpinning s 35(3) could also be read more narrowly. I adopted that more narrow construction in Re Skase and Minister for Immigration and Multicultural and Indigenous Affairs[62] when I concluded:
“43. It seems to me that, when read in the context of s 35 of the AAT Act and once the hearing of the proceeding has been held, the requirement in s 35(1) that the hearing be held in public carries with it the implication that, unless an order has been made under s 35(2), the public has the right to have access to all of the documents that have been lodged before the hearing of the proceeding as well as the evidence that was given at that hearing and any documents that were received in evidence at that hearing. They are the documents and the evidence to which the Tribunal may have regard in hearing the proceeding to review a decision. Some may have been lodged prior to the hearing and some given at the hearing. That is the reason for the distinguishing between documents lodged, on the one hand, and evidence given and documents received in evidence, on the other. It may be that, when they get to the hearing of a proceeding, neither party wants to rely on some of the material lodged in the Tribunal before the hearing. In view of the power given to the Tribunal under s 35(2) to prohibit or restrict disclosure of both the documents lodged and the evidence given and documents received in evidence, it seems to me that it makes no difference whether the parties wish to rely on it at the hearing or not. All is available provided no order has been made under s 35(2).”
[62] [2005] AATA 200
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.
The obligation of confidence
It seems to me from these authorities that the principles that the courts have developed regarding the implied undertaking or obligation and the circumstances in which a party will be released from it have their foundation in the equitable principles relating to the obligation of confidence. This is the obligation upon which Mr Rana now relies to ask me to disregard the evidence of Professor Goldney.
That obligation was described by Gummow J in Smith Kline & French v Commonwealth Services:[63]
“ A general formulation apt for the present case of an equitable obligation of confidence has four elements: (i) the plaintiff must be able to identify with specificity, and not merely in global terms, that which is said to be the information in question, and must be able to show that; (ii) the information has the necessary quality of confidentiality (and is not, for example, common or public knowledge); (iii) the information was received by the defendant in such circumstances as to import an obligation of confidence, and (iv) there is actual or threatened misuse of that information, without the consent of the plaintiff. …”[64]
[63] (1990) 22 FCR 73; 95 ALR 87
[64] (1990) 22 FCR 73 at 87
Ten years earlier, Mason J in The Commonwealth of Australia v John Fairfax & Sons Pty Ltd[65] applied similar principles. His Honour considered whether to grant interlocutory injunctions against the publishers of a book containing information regarded as confidential by the then Commonwealth government. At the heart of the Commonwealth’s argument was:
“… the proposition that information which is not ‘public property and public knowledge’, … is protected by the principle. Even unclassified government information would fall within the protection claimed, so long as it is not publicly known. According to the plaintiff, no relevant distinction is to be drawn between the Government and a private person. A citizen is entitled to the protection by injunction of the secrets of his or her private life, as well as trade secrets … So, with the government, it is entitled to protect information which is not public property, even if no public interest is served by maintaining confidentiality.”[66]
[65] (1980) 147 CLR 39; 55 ALJR 32 ALR 503; 32 ALR 485
[66] (1980) 147 CLR 39; 55 ALJR 45; 32 ALR 485; 32 ALR 485 at 51; 49; 492 citations omitted
Mason J referred to the matters that must be made out in order to establish breach of confidentiality. Among them is that unauthorised use of the information will be to the detriment of the person who communicated it. He said:
“ The equitable principle has been fashioned to protect the personal, private and proprietary interests of the citizen, not to protect the very different interests of the executive government. It acts, or is supposed to act, not according to standards of private interest, but in the public interest. This is not to say that equity will not protect information in the hands of the government, but it is to say that when equity protects government information it will look at the matter through different spectacles.
It may be a sufficient detriment to the citizen that disclosure of information relating to his affairs will expose his actions to public discussion and criticism. But it can scarcely be a relevant detriment to the government that publication of material concerning its actions will merely expose it to public discussion and criticism. It is unacceptable in our democratic society that there should be a restraint on the publication of information relating to government when the only vice of that information is that it enables the public to discuss, review and criticize government action.
Accordingly, the court will determine the government's claim to confidentiality by reference to the public interest. Unless disclosure is likely to injure the public interest, it will not be protected.”[67]
[67] (1980) 147 CLR 39; 55 ALJR 45; 32 ALR 485 at 51-52; 49; 492-493
Gummow J also considered detriment in his later judgment of Smith Kline & French v Commonwealth Services. He noted that there are suggestions that any breach of the obligation of confidence must inflict or be likely to inflict “detriment”.[68] He dealt first with contractual obligations to maintain confidentiality and then turned to equitable obligations of confidence. He referred to the authorities including Commonwealth of Australia v John Fairfax & Sons Pty Ltd, to which I have referred, and concluded:
“… The basis of the equitable jurisdiction to protect obligations of confidence lies … in an obligation of conscience arising from the circumstances in or through which the information, the subject of the obligation, was communicated or obtained … The obligation of conscience is to respect the confidence, not merely to refrain from causing detriment to the plaintiff. The plaintiff comes to equity to vindicate his right to observance of the obligation, not necessarily to recover loss or restrain infliction of apprehended loss. …”[69]
[68] (1990) 22 FCR 73 at 87
[69] (1990) 22 FCR 73 at 112
Later, Mason CJ referred to these principles when considering whether the Gas and Fuel Corporation of Victoria (GFC) and the State Electricity Commission of Victoria (SEC) were restricted from disclosing information to the Minister for Energy and Minerals and others information they had obtained from Esso Australia Resources Ltd and BHP in the course of, or by reason of, arbitration proceedings.[70] Mason CJ, with whom Dawson and McHugh JJ agreed, decided that confidentiality is not an essential attribute of a private arbitration or that an agreement to arbitrate imposed an obligation on each party not to disclose the proceedings or documents and information provided in and for the purposes of the arbitration. He rejected an argument that the agreements to arbitrate contained an implied term to that effect[71] and concluded:
“… In the context of such an arbitration, once it is accepted that confidentiality is not such a characteristic, there can be no basis for implication as a matter of necessity. …”[72]
[70] Esso Australia Resources Ltd v Plowman [1995] HCA 19; (1995) 183 CLR 10; 128 ALR 391
[71] [1995] HCA 19; (1995) 183 CLR 10; 128 ALR 391 at [36]-[37]; 30; 401-402
[72] [1995] HCA 19; (1995) 183 CLR 10; 128 ALR 391 at 30; 402
Mason CJ went on to consider briefly exceptions that might exist if there should be an arbitration in which there were a term of the agreement to arbitrate securing the confidentiality of the materials prepared for or used in the arbitration. He referred to a qualification to the obligation that would arise described by Colman J in Tournier v National Provincial and Union Bank of England[73] but found it unduly restrictive. The qualification was to the effect that there would be no breach of the duty of confidence if the information would be used to found a defence or as the basis of a cause of action. Mason CJ found this qualification:
“… unduly narrow. It does not recognise that there may be circumstances, in which third parties and the public have a legitimate interest in knowing what has transpired in an arbitration, which would give rise to a ‘public interest’ exception. The precise scope of this exception remains unclear.
The courts have consistently viewed governmental secrets differently from personal and commercial secrets. … As I stated in Commonwealth v John Fairfax & Sons Ltd, … the judiciary must view the disclosure of governmental information ‘through different spectacles’. This involves a reversal of the onus of proof: the government must prove that the public interest demands non-disclosure….”[74]
Did the preparation of Professor Goldney’s report and his giving it to the Commission constitute a breach of confidence?
[73] [1924] 1 KB 461
[74] [1995] HCA 19; (1995) 183 CLR 10; 128 ALR 391 at 31; 402-403
In his report, Professor Goldney included information given to him by Mr Rana. He gave his opinion in light of that information and his professional experience. Mr Rana attended Professor Goldney at the request of the Commission and he prepared that report at the request of the Commission. Both were aware that the Commission asked them to do that for the purposes of Mr Rana’s application for review of its decision as affirmed by the Veterans’ Review Board. Both were aware that the Commission would lodge the report in the Tribunal.
Before it was lodged in the Tribunal, the information in Professor Goldney’s report met the first two criteria specified by Gummow J in Smith Kline & French v Commonwealth Services: it could be identified with specificity; and it retained, at that stage, the necessary quality of confidentiality in that it was not a matter of common or public knowledge. Professor Goldney’s giving that report to the Commission did not, though, amount to a breach of confidence. It had been prepared purely for that purpose and Mr Rana and Professor Goldney knew that. There was no actual or threatened misuse of the report when Professor Goldney gave it to the Commission.
Did the Commission’s lodging Professor Goldney’s in the Tribunal constitute a breach of confidence?
For the same reasons, there was no breach of confidence when the Commission lodged Professor Goldney’s report in the Tribunal. Even if there were circumstances that imported an obligation, that obligation did not extend to its being lodged in the Tribunal. Lodgement and its use as part of the material to be considered in reaching the correct or preferable decision was the whole point of Professor Goldney’s preparing the report in the first place.
Was the revelation of Professor Goldney’s report and its contents to the MRCC a breach of confidence?
Deputy President Jarvis has already released the Commission from any obligation it was under not to use Professor Goldney’s report and permitted it to reveal Professor Goldney’s report to the MRCC for the purpose of its using it in these proceedings. Assuming that the Commission was ever under an obligation not to take that step, Deputy President Jarvis’s direction is enough to permit it to give it to the MRCC for it to use the report in these proceedings. Whether or not it is relevant to them is a separate issue and not one with which I am concerned.
If the wider interpretation of s 35(3) of the AAT Act is correct, the Commission would not be under any such obligation as Professor Goldney’s report was already in the public domain by virtue of its being lodged in the Tribunal. In the absence of any order restricting its use, the MRCC could use it without seeking either the Tribunal’s leave or the permission of the Commission. Mr Rana might have thought that the report could be used only in the proceedings relating to the review of the Commission’s decision but Mr Rana’s thoughts cannot limit the operation of the law. In particular, his belief in the confidentiality of Professor Goldney’s report could not give it a quality of confidentiality that is not recognised in the AAT Act. He knew that it had been prepared for the purpose of proceedings in the Tribunal and that is enough. In that regard, his position is the obverse of that in which a party’s privies referred to by the majority in Hearne v Street and to the person referred to by Ipp J in Hamersley Iron Pty Ltd find themselves. Provided the privies or the person know how the report was obtained, they are subject to the obligation. The privies and the person are subject to the obligation by virtue of the circumstances that prevail just as the circumstances determine that Professor Goldney’s report does not retain confidentiality once it has been lodged in the Tribunal.
Was Professor Goldney’s use of information given to him in the VE proceedings when preparing for the MRCC diabetes proceedings a breach of confidence?
In light of Deputy President Jarvis’s direction, I do not consider that Professor Goldney can be regarded as being in breach of any confidence he might have owed to Mr Rana. The information, on which he relied, was information on which he had relied in preparing the report for the Commission. That was a report that the Commission had permission to reveal to the MRCC for the purposes of the MRCC diabetes proceedings. The MRCC approached Professor Goldney for a report knowing that he had already given a report to the Commission. In so far as Professor Goldney relied on information referred to in his report to the Commission, it would be covered by the order relieving the Commission from its obligation. The MRCC can be regarded as revealing the information to Professor Goldney for the purpose of his report.
If I look at the matter with regard to the principles relating to breach of confidence and quite apart from the principles relating to the obligation or implied undertaking, I reach the same conclusion. Looking at the principles in Smith Kline & French v Commonwealth Services, there is no breach of confidence. The information can be identified with specificity as it is the information identified in Professor Goldney’s report. That satisfies the first principle but it does not meet the second.
The information that Mr Rana gave to Professor Goldney was given with the understanding that the professor would prepare a report for the VE proceedings. Mr Rana has not suggested that he would not have revealed certain information to Professor Goldney had be known that the MRCC might consider the report relevant to the issues raised by this application. What he has said is that he did not give Professor Goldney permission to write a report about his private life to the MRCC and the MRCC did not seek his permission to obtain that report.
Once Professor Goldney’s report had been lodged in the Tribunal, the information it contained was generally available. It was not information confined to Mr Rana and Professor Goldney and no longer had the necessary quality of confidentiality. Professor Goldney was not under any obligation to keep confidential any information Mr Rana gave him when he examined him for the preparation of the medico legal report for the Commission. He could use it for the preparation of the MRCC report.
Had the MRCC relied on s 57(1) of the SRC Act to require Mr Rana to attend Professor Goldney for an examination, Mr Rana would have been required to undergo that examination unless he had a reasonable excuse not to do so. As Mr Rana has not suggested that he gave false information to Professor Goldney and as the issues under consideration are similar in both proceedings, he would have had to impart the same information to Professor Goldney once more. In view of that, the circumstances in which Professor Goldney received the information on the first occasion would not import an obligation of confidence if the same sort of circumstances were to arise again. Those circumstances did arise again when the MRCC asked Professor Goldney for the report. Therefore, there was no breach of confidence when Professor Goldney prepared his report for the MRCC for the purpose of the MRCC diabetes proceedings.
CONSIDERATION: Did Professor Goldney breach the Privacy Act when he prepared the report for the MRCC?
As Professor Goldney is an individual, he may come within the definition of an “organisation” within the meaning of s 6C(1) of the Privacy Act. He will only be regarded as an “organisation” for that reason if he is not a small business operator. Even if he is a small business operator, though, he will still be regarded as an organisation.[75] Either way, as an organisation, regard must be had to s 13A of the Privacy Act. In so far as it is relevant to this case, s 13A(1) provides:
[75] Privacy Act, ss 6E and 6EAC
“For the purposes of this Act, an act or practice of an organisation is an interference with the privacy of an individual if:
(a)the act or practice breaches an approved privacy code that binds the organisation in relation to personal information that relates to the individual; or
(b)both of the following apply:
(i)the act or practice breaches a National Privacy Principle in relation to personal information that relates to the individual;
(ii)the organisation is not bound by an approved privacy code in relation to the personal information; ..
(c)…;
(d)…”
“Personal information” means:
“… information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.”[76]
[76] Privacy Act, s 6(1)
The “approved privacy code”, to which s 13A(1)(a) refers, is a privacy code approved by the Privacy Commissioner under either s 18BB and, if varied, with approvals approved under s 18BD. Section 18BB(2)(a) provides:
“The Commissioner may approve a privacy code if, and only if, the Commissioner is satisfied:
(a)that the code incorporates all the National Privacy Principles or sets out obligations that, overall, are at least the equivalent of all the obligations set out in those Principles; …”
The National Privacy Principles (NPP) are set out in Schedule 3 to the Privacy Act.[77] Each of the clauses in Schedule 3 deals with a different aspect of privacy. Clause 2 is concerned with use and disclosure. Three of the paragraphs in that clause were raised by the MRCC. I will refer to only one:
“2.1 An organisation must not use or disclose personal information about an individual for a purpose (the secondary purpose) other than the primary purpose of collection unless:
(a)both of the following apply:
(i)the secondary purpose is related to the primary purpose of collection and, if the personal information is sensitive information, directly related to the primary purpose of collection;
(ii)the individual would reasonably expect the organisation to use or disclose the information for the secondary purpose; …”
[77] Privacy Act, s 6(1)
The primary purpose for which Professor Goldney collected and used information he obtained from Mr Rana was to prepare a medico-legal report for the Commission so that it could lodge it in the Tribunal. That primary purpose may also be characterised as a purpose that is directly related to the review of an administrative decision. That administrative decision is concerned with the payment or conferral of a benefit or entitlement from public funds.
The secondary purpose was the preparation of a further medico-legal report for the MRCC. It has been prepared for the MRCC diabetes proceedings rather than the VE proceedings. The secondary purpose may also be characterised as a purpose that is directly related to the review of an administrative decision. That administrative decision is concerned with the payment or conferral of a benefit or entitlement from public funds.
The secondary purpose is both related and directly related to the primary purpose. Both are for the common purpose of determining the benefits and entitlements to be conferred or payable to Mr Rana from public funds. That would bring Professor Goldney’s use of the information within cl 2.1(a)(i) of the NPP.
In view of Mr Rana’s authorisation to the MRCC to obtain medical/psychological and rehabilitation information about him and to use such information as necessary to determine any entitlements he might have to benefits under the SRC Act, I am satisfied that he would reasonably expect that Professor Goldney would, if approached by the MRCC, use or disclose the information for the purpose of preparing a report that the MRCC would lodge with the Tribunal in the MRCC diabetes proceedings. That means that Professor Goldney’s use or disclosure of the information is within cl 2.1(1)(a)(ii) of the NPP and so within cl 2.1(a). Consequently, his use was authorised.
CONSIDERATION: Did the MRCC breach the Privacy Act when it disclosed to Professor Goldney information of which he might not have previously been aware?
The MRCC is an “agency” for the purposes of the Privacy Act. It is “a body … established or appointed for a public purpose by or under a Commonwealth enactment …”[78] and does not come within the exceptions stated in paragraph (c) of the definition of “agency”. As an agency, the MRCC is regarded as a “record-keeper in relation to the record” if it is in possession or control of a record of personal information.[79] As an agency, it is prohibited from breaching the IPPs.[80]
[78] Privacy Act, s 6(1)
[79] Privacy Act, s 10(1)
[80] Privacy Act, s 16
The Information Privacy Principles (IPP) are set out in section 14 of the Privacy Act. IPP 11 reads in so far as it is relevant:
“1. A record-keeper who has possession or control of a record that contains personal information shall not disclose the information to a person, body or agency (other than the individual concerned) unless:
(a)the individual is reasonably likely to have been aware, or made aware under Principle 2,[[81]] that information of that kind is usually passed to that person, body or agency;
(b)the individual concerned has consented to the disclosure;
(c)the record-keeper believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious imminent threat to the life or health or the individual concerned or of another person;
(d)the disclosure is required or authorised by or under law; or
(e) the disclosure is reasonably necessary for the enforcement of the criminal law or of a law imposing a pecuniary penalty, or for the protection of the public revenue.
2.Where personal information is disclosed for the purposes of enforcement of the criminal law or of a law imposing a pecuniary penalty, or for the purpose of the protection of the public revenue, the record-keeper shall include in the record containing that information a note of the disclosure.
3.A person, body or agency to whom personal information is disclosed under clause 1 of this Principle shall not use or disclose the information for a purpose other than the purpose for which the information was given to the person, body or agency.”
[81] IPP 2 is concerned with the solicitation of personal information from the person concerned.
It is said that disclosure was necessary for the “protection of the public revenue”. That expression is frequently found in penal statutes[82] and with reference to statutes concerned with revenue collection.[83] In relation to the Stamp Duties Act 1898, Barton, Isaacs and Rich JJ drew a distinction between legislation which is for the protection of the revenue and that which is for the protection of private interests.[84] Woodward J rejected a submission that an inquiry into over-servicing by a medical practitioner under the Health Insurance Act 1973 (HIA) was:
“… merely ‘an investigation to ensure the protection of public revenue’, involving no serious consequences for the doctor being investigated apart from the possibilities of reprimand, counselling or having to repay to the Commonwealth medicare benefits relating to the excessive services …”[85]
[82][83] See, for example, Caratti v Commissioner of Taxation [1999] FCA 1296 at [13]: “This personal information was to be used for the enforcement of the ITAA [Income Tax Assessment Act 1936], that being a law within the meaning of Information Privacy Principle 10(2), a law imposing a pecuniary penalty and for the protection of public revenue.”
[84] Dent v Moore [1919] HCA 11; (1919) 26 CLR 316; 25 ALR 437
[85] Re Jack Freeman v MA Mckenzie; WM Mccubbery; DW Lording; DR Gauld and GJ Royal (Who Are Sued As the Chairman and Member of the Second Medical Services Committee of Inquiry of Victoria) [1988] FCA 308 at [29]
His Honour did not reject the submission as having no reference to the protection of the public revenue but said:
“30. On the contrary, an allegation of persistent and widespread over-servicing is, I believe, a very serious allegation. It means that the doctor concerned has been subjecting his patients to unnecessary procedures in order, in effect, to commit a fraud on the national health scheme. To do this would be highly unprofessional conduct, and such a finding could hardly be ignored by professional or licensing bodies. The ultimate consequences for the doctor, in terms of his reputation, and even, perhaps, his right to practice his profession, could be very serious indeed. It is true that any threat to his right to practice would involve separate proceedings, where questions of prejudicial delay could be re-opened. But the damage to his reputation arising from an adverse finding by the committee could be considerable.
31. The Act expressly provides for adverse findings to be publicized in the Government Gazette and the Parliament, no doubt as a salutary warning to other doctors not to indulge in over-servicing (see s.106AA above). Such publicity could seriously damage a doctor’s practice.”[86]
[86] [1988] FCA 308, [30]–[31]
The Medicare system established by the HIA is a system “… providing for Payments by way of Medical Benefits and Payments for Hospital Services …”. It provides for both civil penalties and criminal penalties for breaches of its provisions.[87] When viewed in light of its scheme and its penalty provisions, the HIA may be regarded as an Act that makes provision for the “protection of the public revenue”.
[87] HIA Part VIA
The SRC Act does not provide for either civil or criminal penalties or, indeed, for breaches of its provisions. That is not to say that fraudulent attempts to obtain benefits will not be offences for the purposes of the Crimes Act 1914. What it is to say is that the SRC Act is intended to confer benefits and entitlements. Those benefits and entitlements will almost always require the expenditure of public money. To say that a decision one way or the other under the SRC Act will have an impact upon the public revenue, though, is different from saying that the SRC Act has anything to do with the protection of the public revenue. Therefore, I do not accept the submission that disclosure of information for a purpose connected with the determination of Mr Rana’s benefits or entitlements under the SRC Act can be regarded as being disclosure for the protection of the public revenue within the meaning of IPP 11, cl 1(e).
IPP 11, cl 1(a) is another matter. Mr Rana has authorised the MRCC to obtain medical/psychological and rehabilitation information about him and to use that information as it needs to in order to determine any entitlements he might have to benefits under the SRC Act. As Mr Rana had indicated that he did not want to see a psychiatrist again for the purposes of the proceedings, I am satisfied that he would reasonably expect that the MRCC would give Professor Goldney any information that it had and that was relevant to the issues to be determined in this case. He would reasonably expect it to do so in order for Professor Goldney to prepare a report for the purpose of lodging it with the Tribunal in the MRCC diabetes proceedings. That means that the MRCC’s disclosure to Professor Goldney of information relating to Mr Rana is within IPP 11, cl 1(a). Consequently, its use was authorised and it was not in breach of the Privacy Act.
I certify that the ninety three preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,
Signed: .......................................................................
Kate Conners Associate
Date of Hearing 8 December 2008
Date of Decision 18 May 2009
Representative for the Applicant Self-represented
Counsel for the Respondent Ms Katherine Bean
Solicitor for the Respondent Ms Nerida Ware
Australian Government Solicitor
See, for example, Director of Public Prosecutions v Sutcliffe [2001] VSC 43 considering s 21A of the Crimes Act 1958 (WA) providing a defence to the offence of stalking if the conduct was engaged in by a person performing official duties for the purpose of the protection of the public revenue:
s 21A(4)(e)
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