Richmond and Comcare (Compensation)

Case [2019] AATA 100

Richmond and Comcare (Compensation) [2019] AATA 100 (1 February 2019)

Division:GENERAL DIVISION

File Number(s):      2017/4036

Re:Kendall Richmond

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:                  Member Mark Hyman

Date:1 February 2019

Place:Canberra

The report of Dr Phil Allen dated 14 November 2017 and the report of Professor Peter Youssef dated 15 January 2018 are covered by the implied undertaking.

Comcare requires a release from that undertaking if the reports are to be used for the purposes of assessing and determining Mr Richmond’s entitlements to compensation under sections 16 and 19 of the SRC Act in respect of his back condition.

The release is granted.

........................................................................

Member Mark Hyman


Catchwords

PRACTICE AND PROCEDURE – release of documents from the implied undertaking – proposed use of expert reports created for a workers’ compensation claim in a separate claim - whether information provided to doctors in an examination required under section 57 of the Safety, Rehabilitation and Compensation Act 1988 is provided under compulsion - whether reports covered by the implied undertaking – whether release from the implied undertaking is required for the use proposed – whether release should be granted – release granted

Legislation
Administrative Appeals Tribunal Act 1975

Safety, Rehabilitation and Compensation Act 1988, ss 16, 19, 37, 57

Cases

Chin and Comcare [2017] AATA 634

Crest Homes plc v Marks [1987] AC 829

Harman v Secretary of State for the Home Department sub nom Home Office v Harman [1982] 1 All ER 532

Hearne v Street (2008) 235 CLR 125; [2008] HCA 36

Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 648

Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] 2 VR 34

Oliver and Comcare [2018] AATA 1964

Prudential Assurance Co Ltd v Fountain Page Ltd [1991] 1 WLR 756

Riddick v Thames Board Mills Ltd [1977] QB 881

Sybron Corporation v Barclays Bank Plc [1985] Ch 299

Tate Access Floors Inc v Boswell [1991] Ch 512

Von Stieglitz and Comcare [2012] AATA 217

Warner and Comcare [2017] AATA 2709

Secondary materials

Macquarie Concise Dictionary, Third Edition

REASONS FOR DECISION

Member Mark Hyman

1 February 2019

  1. This decision is about whether two expert reports obtained in the present matter are subject to an implied undertaking and, if so, whether that undertaking should be maintained or a release granted. The applicant, Mr Kendall Richmond, made two applications to Comcare for compensation for conditions which he says were occasioned by his work: the first for a shoulder condition and the second for a lumbar sprain. Comcare rejected the first claim in a reconsideration determination dated 22 May 2017 and accepted liability for the second claim. The deemed date of injury of the second claim is 11 May 2011. Mr Richmond sought review of the rejection of his claim for a shoulder condition (matter 2017/4036). In the course of investigations for that review Comcare obtained two expert reports: one from Dr Phil Allen, an orthopaedic surgeon, dated 14 November 2017 and a second from Professor…

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Details
AGLC
Richmond and Comcare (Compensation) [2019] AATA 100
Case
[2019] AATA 100
Decision Date

CaseChat Overview and Summary

This matter came before the Administrative Appeals Tribunal concerning a dispute between Mr Richmond and Comcare regarding the release of expert reports. The core of the dispute involved Comcare's proposed use of two expert reports, one by Dr Allen and another by Professor Youssef, in determining Mr Richmond's claim for incapacity payments and medical expenses related to an accepted back condition. Mr Richmond contended that these reports were prepared based on information obtained under compulsion and were therefore protected by the implied undertaking, preventing their use for purposes other than those for which they were originally created.

The Tribunal was required to determine three key issues for each report: firstly, whether the report was subject to the implied undertaking; secondly, if it was, whether the undertaking prevented its release for Comcare's use in assessing Mr Richmond's back condition claim; and thirdly, if so, whether Comcare should be released from the undertaking for that purpose. Mr Richmond argued that his attendance at Dr Allen's examination was compelled by section 57 of the *Safety, Rehabilitation and Compensation Act 1988* (SRC Act), which allows for the suspension of compensation entitlements for failure to attend medical examinations. He further submitted that Professor Youssef's report was informed by material obtained via the Tribunal's summons power, and that using these reports to assess the back condition claim, distinct from the shoulder condition for which they were initially commissioned, constituted a collateral or ulterior purpose.

The Tribunal considered the principles governing the implied undertaking, drawing on High Court authority such as *Hearne v Street*. This established that the implied undertaking arises when a party is compelled to disclose documents or information, and it prevents the receiving party from using that material for any purpose other than that for which it was given, unless leave is granted by the court. The undertaking attaches to all documents or information obtained under compulsion, including those informed by or derived from such materials. The Tribunal noted that the undertaking is an obligation of substantive law owed to the court, not the other party, and arises automatically from the compulsory disclosure process.

The Tribunal granted Comcare's application for release from the implied undertaking. It found that the release was sought for a proper purpose, namely the management of Mr Richmond's claims as part of Comcare's statutory duties. The Tribunal also considered that the information contained in the reports was relevant to the assessment of Mr Richmond's entitlements and would likely be available through other compulsory processes if required.

Orders

Orders of the court

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Background

Background to the litigation

The issues before the tribunal are, for each of the reports of Dr Allen and Professor Youssef:·whether the report is subject to the implied undertaking;·if so, whether the implied undertaking prevents its release for Comcare’s use in determining Mr Richmond’s claim in respect of his accepted condition; and·if so, whether Comcare should be released from the undertaking for that purpose.BACKGROUND Mr Richmond commenced working for the ACT Territory and Municipal Services Directorate in 2008 as a Government Services Officer at the Yarralumla Nursery. It was at that nursery where the conditions the subject of his compensation claims apparently arose. Both conditions for which Mr Richmond claimed compensation occurred or came to attention in the period April-May 2011. Mr Richmond undertook physical work at the nursery, involving the use of machinery (a potting machine and a front-end loader) as well as repetitive manual work with lifting of pots, turning and twisting. He reported having begun to notice a problem with his right shoulder on 5 April 2011, attributing this to an accident involving the front-end loader and to repetitive movement and lifting. The back injury has a deemed date of 11 May 2011, arising from “potting on a machine and trolleys”. THE SUBMISSIONS Mr Richmond contends that Dr Allen’s report is subject to the implied undertaking because it was prepared on the basis of information obtained through the use or the implied use of compulsion. Mr Richmond submits that he attended Dr Allen at Comcare’s request, in the context of section 57 of the SRC Act, which allows a claimant’s rights to compensation entitlements and to institute or continue proceedings under the SRC Act to be suspended if a medical examination appointment is not kept. Mr Richmond’s attendance, he therefore submits, was impliedly compelled; and anything he said to Dr Allen was equally so. Dr Allen’s report is therefore informed by information obtained under compulsion and is subject to the implied undertaking. Mr Richmond notes that for the purposes of preparing his report, Professor Youssef was supplied with material obtained by Comcare through the use of the tribunal’s summons power. He submits that the report was therefore informed by compulsorily obtained material and is subject to the implied undertaking. Mr Richmond further contends that the intended purpose to which the reports are to be put – to assess Mr Richmond’s claim for medical expenses and incapacity payments under sections 16 and 19 of the SRC Act in respect of his accepted back condition – is collateral or ulterior to the purpose for which the material was obtained, namely for the review of Mr Richmond’s shoulder claim. On his argument, this is a separate claim and a separate injury, quite distinct from the back condition, and the use of the material obtained in the context of the shoulder condition for purposes related to the back condition is clearly to use the protected material for a collateral purpose. Release of both reports from the implied undertaking is therefore required if they are to be so used.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Should I find that the implied undertaking does apply, and Comcare needs release from it, Comcare contends that I should grant that release because ·the release is sought for a proper purpose, namely claims management undertaken as part of Comcare’s statutory duties;·the material would in any case be available under summons were Mr Richmond to seek a review of an adverse decision in respect of his entitlements under section 16 and/or section 19 of the SRC Act; ·Mr Richmond has authorised Comcare to collect information for handling his claims;·the reports date from about a year ago, but the reporting of the applicant’s symptoms suggests they are still current; and·the reports contain information that is plainly relevant to the matters that are at issue in determining Mr Richmond’s entitlements in respect of his accepted injury.CONSIDERATION There is a line of cases dealing with the implied undertaking, and the parties referenced many of the same leading cases, both those that deal with the implied undertaking in the broad context of litigation generally, and those that cover its specific application in the tribunal. An important starting point is the High Court’s decision in Hearne v Street (2008) 235 CLR 125 (Hearne), where the plurality (Hayne, Heydon and Crennan JJ) stated the rule as follows (at 154 [96]):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. 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. [citations omitted] Their Honours went on to state that the implied undertaking is an obligation of substantive law; that the obligation is not to the other party but to the court; that it arises automatically from the process by which material is disclosed; and that it binds the party to whom the material is disclosed. With regard to the extent to which documents are protected by the implied undertaking, the authorities persuasively show that the undertaking attaches to all documents or information obtained under compulsion, including materials informed by, based on or derived from such documents or information: Crest Homes plc v Marks [1987] AC 829. The undertaking constrains the party to whom the material is produced: it is the party that obtains access to such material for the specific purposes of court processes which is limited to using that information, obtained under the privileged circumstances that attach to such processes, only for those purposes. Where a document or information is provided under compulsion by one party to another (e.g. at the direction of the court or tribunal), but the document was itself obtained under some form of compulsory process, the undertaking extends to both parties – the providing party because the document is informed by information obtained under compulsion; and the receiving party by virtue of the compulsion under which it was made available by the providing party.