Richmond and Comcare (Compensation) - [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

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 Peter Youssef, a rheumatologist, dated 15 January 2018.
Comcare wishes to use these reports in assessing Mr Richmond’s present entitlement to benefits under sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) with respect to his accepted back injury. In the tribunal (as in the courts), materials provided under compulsion for one legal purpose are protected by an implied undertaking from being used for an ulterior or collateral purpose. Comcare is seeking a decision on whether in this case the reports are subject to an implied undertaking, whether they need a release in present circumstances, and if so, whether a release should be granted. The parties provided submissions on these questions. The applicant’s representative, Mr Kurt Richardson of Maurice Blackburn, provided submissions on 2 November 2018; the respondent, through its representative Ms Cassie Davis of McInnes Wilson Lawyers, provided submissions in reply on 16 November 2018. This decision draws on those submissions and on the papers provided for the review of Comcare’s decision in matter 2017/4036.
Mr Richmond’s employment, where he says the conditions were sustained, was with the ACT Government. That government has in the past paid a premium to Comcare and Comcare has represented their interests in matters such as the present; but the ACT Government has now taken a decision to self-insure under the SRC Act. The transition, however, is yet to be completed, and for the present Comcare continues to represent the ACT Government’s interests under the SRC Act.
ISSUES
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.
Mr Richmond further submits that no case has been made that special circumstances exist that support the release of Comcare from the implied undertaking. The reports in question are now from a considerable time ago and may not reflect Mr Richmond’s current condition. He contends that to release Comcare from the implied undertaking would be neither in the public interest nor necessary for the administration of justice.
Comcare submits that Dr Allen’s report is not subject to the implied undertaking because he was not supplied with any material obtained under summons. Comcare disputes that Mr Richmond was compelled to attend the examination or that information he gave to Dr Allen at that examination was provided under compulsion, and argues that Dr Allen’s report is therefore not subject to the implied undertaking.
Comcare does not address whether Professor Youssef’s report is subject to the implied undertaking; I assume that, by implication, Comcare accepts that his report is subject to the undertaking, as it is not in dispute that it was informed by material obtained under summons.
Comcare contends that the purpose of claims assessment in respect of Mr Richmond’s accepted injury is not a collateral purpose because the two conditions – the claimed shoulder condition and the accepted back condition – are closely intertwined, arose at the same time and from the same incident, and should be, and have been, investigated together.
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.
There is also case law dealing specifically with the application of the implied undertaking in the tribunal. Both parties’ submissions referred to Chin and Comcare [2017] AATA 634 (Chin); Warner and Comcare [2017] AATA 2709 (Warner); and Oliver and Comcare [2018] AATA 1964 (Oliver).
Are the reports covered by the implied undertaking?
As noted above, it does not seem to be at issue that Professor Youssef’s report is subject to the implied undertaking, as it is accepted that his report was informed by material provided to him from documents returned under summons, i.e. from compulsorily obtained material. In my view it is clear that the report is covered by the implied undertaking.
Dr Allen’s report did not draw on material obtained under summons. Comcare argues that it is therefore not covered by the undertaking. Mr Richmond submits that he was compelled to attend the examination by Dr Allen under section 57 of the SRC Act; Comcare submits that the section 57 power was not used to compel his attendance, and that he was free to give or withhold whatever information he chose. Comcare contends that the implied undertaking does not apply to the report, noting that in Chin, Senior Member (SM) Popple found that the doctor’s report in that matter was subject to the undertaking only to the extent that it relied on material obtained under summons.
The power in section 57 is plainly established to allow Comcare to obtain medical opinion about an employee. Subsection 57(1) allows Comcare to “require” the employee who has claimed compensation to attend one medical examination. The use of the verb “require” itself suggests compulsion (the Macquarie Dictionary defines the word to mean “to call on authoritatively, order or enjoin”). Under subsection 57(2), if the employee does not so attend, without reasonable excuse, or “in any way obstructs an examination”, the employee’s rights to compensation, or to institute or continue proceedings under the SRC Act, are suspended. An invitation from Comcare to undertake an examination, therefore, comes with the threat of suspension if it is not complied with. In my view that makes attendance a matter of compulsion; and the extension of the suspension power to obstruction of an examination effectively compels in the same way the cooperation of the employee in providing information to the examining doctor. In Chin, SM Popple did not have reason to turn his mind to this question because the report in question was informed by material obtained under summons and was subject to the undertaking for that reason.
For those reasons, in my view the report of Dr Allen is informed by compulsory processes and Comcare is bound by the implied undertaking.
Does Comcare require a release from the undertaking in order to use the reports in the assessment of Mr Richmond’s accepted condition?
The use of the reports to determine Mr Richmond’s entitlements under sections 16 and 19 of the SRC in respect of his back condition requires a release from the undertaking if that use is collateral to the purpose for which the documents were originally provided (i.e. for determination of his shoulder claim). Alternative formulations of that test are that the purpose is “ulterior or alien” (Riddick v Thames Board Mills Ltd [1977] QB 881 at 896) or “for any purpose other than the action in which they are produced” (Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] 2 VR 34 at 38). The undertaking “should not be allowed to place upon the litigant [i.e. the party under compulsion] any harsher or more oppressive burden than is strictly required for the purpose of securing that justice is done” (Harman v Secretary of State for the Home Department sub nom Home Office v Harman [1982] 1 All ER 532 at 540 (Lord Keith of Kinkel)).
In Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 648 (at [27]-[28]) Einstein J accepted that the use in one action of documents disclosed in a separate action could be for a collateral or ulterior purpose even where the parties were the same and the cause of action was the same (relying on Crest Homes plc v Marks [1987] AC 829 at 837; Tate Access Floors Inc v Boswell [1991] Ch 512 at 526; Sybron Corporation v Barclays Bank Plc [1985] Ch 299 at 319-320).
Chin, Warner and Oliver all involve questions regarding release from the implied undertaking where Comcare is dealing with the same applicant but in a different context. In Chin SM Popple held that the purpose for which the disputed documents were to be used was not collateral to the purpose for which the document was produced because it was for claims management in respect of the same injury. In Warner, by contrast, the injury was different, and SM Popple held that Comcare required a release from the implied undertaking. In Oliver, Deputy President (DP) Humphries held that no release was required because the second injury was a sequela of the first.
Whether the purpose is collateral in the present instance is again a matter on which the parties take different views. Mr Richmond argues that the two injuries are distinct, there is no question that one is a sequela of or secondary to the first, and therefore Warner is the best guide to the outcome. Comcare contends that the two injuries are so closely intertwined that Oliver is a better guide than Warner. The incidents that are purported to have caused the two conditions occurred very closely in time and that close connection means that the use of material in one condition for claims management of the other does not involve a collateral purpose.
In my view Mr Richmond has claimed for two separate injuries and they are being separately managed: the two claims are not being treated as one. That implies to me that Comcare itself sees them as separate and distinct. There is nothing that suggests to me that one is a causative factor in the other. For the reasons advanced by SM Popple in Warner, Comcare requires a release from the implied undertaking if it wishes to use the reports in managing Mr Richmond’s back claim.
Should Comcare be released from the implied undertaking?
Mr Richmond contends that Comcare should not be released from the undertaking because no special circumstances have been identified that warrant such a step, and because the reports are now a year old and of limited currency. Comcare points to the reasons provided by DP Humphries in Oliver – that Comcare has access by other means should Mr Richmond seek review of an adverse decision (e.g. by use of the summons power), that Comcare is seeking the information in order to fulfil its statutory duties, and that the reports are relevant and retain sufficient currency to remain useful.
A decision on the implied undertaking, the authorities suggest, is based on issues of principle. Chief among those principles is that a person’s information is private; if provided under the compulsory processes of a court or tribunal for a particular process, that information is not to be used for other purposes unless there are particular reasons for doing so. The authorities emphasise that departure from this principle – through, for example, the release sought in the present matter – is not lightly to be granted. In Hearne the plurality noted “although it can be released or modified by the court, that dispensing power is not freely exercised, and will only be exercised where special circumstances appear” (at 160 [107]), quoting Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10 at 37 [7] (Brennan J). In Prudential Assurance Co Ltd v Fountain Page Ltd [1991] 1 WLR 756 Hobhouse J put the position as follows (at 775):
Circumstances under which that relaxation would be allowed without the consent of the serving party are hard to visualise, particularly where there was any risk that the statement might be used directly or indirectly to the prejudice of the serving party.

In Von Stieglitz and Comcare [2012] AATA 217 Member Webb summarised he application of those factors in the context of the tribunal as follows (at [22]-[23]):
Release from the implied undertaking cannot be addressed in general terms. The specific nature and content of the documents for release and the use or purpose to which they will be put must be addressed.
While documents from earlier proceedings may be relevant to the investigation of matters in other litigation (or Tribunal proceedings), this must be established and relevant factors taken into account when deciding an application for release. Release cannot be assumed; for the proper exercise of the Tribunal’s discretion, factors of relevance must be considered in the particular circumstances. These include the nature of the document, the circumstances under which it came into existence, the attitude of the author and any prejudice the author may sustain, whether the document was expected to enter the public domain, the nature of the information it contains, the circumstances in which it came into the hands of the applicant for release, and the likely contribution of the document to achieving justice in the proceeding. [citations omitted]
In Oliver DP Humphries decided that no release from an implied understanding in that case was necessary. But on the basis that he might be wrong he noted that he would have granted the release, for the reasons that first, Comcare sought the documents in order to undertake claims management in accordance with its statutory duties; second, because access would be possible in any event through the summons power if an adverse decision were made in the matter; and third, because in making a claim the applicant in that case had authorised Comcare to collect personal information relating to her health.
Similar considerations would appear to have applied in Warner, although I note that SM Popple refused to grant the release Comcare sought. He pointed out that the implied undertaking is not about access to documents or information but about their use, and that the report in that case covered by the implied undertaking would remain subject to that undertaking even if obtained by summons under the new claim. It is not clear to me that Comcare’s capacity to obtain the doctors’ reports in the present matter by means different from those applied to this point is determinative: what has happened here is that in investigating Mr Richmond’s shoulder, the doctors have also obtained and included in their reports information about his back. The implied undertaking prevents that information from being used in claims management of his back condition in the absence of the release, no matter how a further copy of the reports might be obtained.
The documents that are sought to be released here were prepared by medico-legal experts engaged by Comcare for use in another case involving the same claimant under the SRC Act; they were written on the basis that they might become public through their use in tribunal processes; in the usual way, medical information was sent to the two doctors, and in the course of examining Mr Richmond for one condition they gathered information about another and included comment on it in their reports. Mr Richmond is an employee seeking compensation from Comcare under the SRC Act. In doing so he undertook to provide accurate information to Comcare and authorised Comcare to obtain information from his treating doctors (ST1 in matter 2017/4036 (for the back condition)). Neither Dr Allen nor Professor Youssef is Mr Richmond’s treating doctor, but it is plain that the operation of the Act, and the performance by Comcare of its statutory duties, require that it receive information from Mr Richmond, including medical information, and use that information to process his claim.
Section 57 of the SRC Act (and other sections such as section 37, dealing with rehabilitation) makes it clear that there is a strong expectation that an employee will be cooperative in allowing Comcare to gather the information needed to make a well-informed determination. Indeed Comcare could in any case use section 57 to send Mr Richmond back to Dr Allen and Professor Youssef for a further opinion; or it could send him to different doctors. But it would not seem to be either in the public interest nor necessary for the administration of justice for it to pay additional costs to do so when the opinions of Dr Allen and Professor Youssef have already been obtained. If Mr Richmond and his representatives disagree with the opinions of Dr Allen and Professor Youssef, the solution is for them to obtain further expert medical opinion.
This is not an example, of the kind explored in many of the cases before the courts, where the contested information could be published with defamatory effect or used for commercial advantage. The proposed application of the reports is to enable Comcare to base its determination of Mr Richmond’s claim on expert opinion that is known to have been acquired. The currency of the reports and their relevance can be taken into account in the making of any decision.
I grant the release from the implied undertaking; the reports of Dr Allen and Professor Youssef may 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.
I certify that the preceding 36 (thirty-six) paragraphs are a true copy of the reasons for the decision herein of Member Mark Hyman.
……………………………………………………
Associate
Dated: 1 February 2019
Date last submissions received: 16 November 2018
Solicitor for the Applicant: Mr Kurt Richardson, Maurice Blackburn Lawyers
Solicitor for the Respondent: Ms Cassie Davis, McInnes Wilson Lawyers