Richmond and Comcare (Compensation)

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.