Shales and Commonwealth Bank of Australia

Case •

[2017] AATA 53

•

23 January 2017

Shales and Commonwealth Bank of Australia [2017] AATA 53 (23 January 2017)

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL               )
  )         No: 2016/1138
GENERAL DIVISION  )

Re: Carole Shales
Applicant

And: Commonwealth Bank of Australia
Respondent

DIRECTION

TRIBUNAL:               Brigadier AG Warner, Member

DATE:   1 February 2017

PLACE:                     Perth

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application, as follows:

  • The date of the supplementary medical report of Dr Gemma Edwards-Smith referred to at item [f] on the first page of the decision is changed from “5 August 2015” to “5 August 2016”.

...................................................................
  Member

Division:                  GENERAL DIVISION

File Number:           2016/1138

Re:Carole Shales

APPLICANT

Commonwealth Bank of AustraliaAnd  

RESPONDENT

DECISION

Tribunal:Brigadier AG Warner, Member

Date:23 January 2017

Place:Perth

The Tribunal releases the respondent from the implied undertaking in respect of the following documents detailed in the respondent’s letter dated 12 October 2016:

a.all documents produced under summons by The Wishing Well Clinic;

b.all documents produced under summons by Busselton Medical Practice;

c.all documents produced under summons by Dr Foster & Associates;

d.all documents produced under summons by Bunbury Hospital;

e.all documents produced under summons by Intrinsic Health and Wellbeing; and

f.supplementary medical report of Dr Gemma Edwards-Smith, psychiatrist, dated 5 August 2015.

.........[Sgd]...............................................................

Brigadier AG Warner, Member

CATCHWORDS

PRACTICE AND PROCEDURE – application for release from implied undertaking of confidentiality – requirements of Tribunal General Practice Direction Part 5 – whether special circumstances exist – assistance to the Tribunal - respondent released from the implied undertaking with respect to specified documents

LEGISLATION

Administrative Appeals Tribunal Act 1975 – s 2 - s 33(1AA) – s 33(1AB)

CASES

Crest Homes PLC v Marks (1987) AC 829; [1987] 3 WLR 48

Re San and Military Rehabilitation and Compensation Commission [2009] AATA 237

Von Stieglitz and Comcare [2012] AATA 217

SECONDARY MATERIALS

Administrative Appeals Tribunal General Practice Direction Part 5

REASONS FOR DECISION

Brigadier AG Warner, Member

23 January 2017

INTRODUCTION

  1. Ms Carole Shales has an accepted claim in respect of “anxiety and depressed mood” arising out of her employment with the Commonwealth Bank of Australia (CBA). Ms Shales has an application before the Tribunal related to her claim for permanent impairment and non-economic loss, claimed to have been suffered as a result of her compensable condition.

  2. Documents provided to the Tribunal pursuant to a summons are subject to an implied undertaking that they are used only for the purposes of the proceedings before the Tribunal.

  3. By letter dated 12 October 2016, the CBA sought to be released from the implied undertaking as it relates to the following documents:

    ·all documents produced under summons by The Wishing Well Clinic;

    ·all documents produced under summons by Busselton Medical Practice;

    ·all documents produced under summons by Dr Foster & Associates;

    ·all documents produced under summons by Bunbury Hospital;

    ·all documents produced under summons by Intrinsic Health and Wellbeing;

    ·all documents produced under summons by Gippsland Specialist Services;

    ·all documents produced under summons by McLeod Medical Centre; and

    ·supplementary medical report of Dr Gemma Edwards-Smith, psychiatrist, dated 5 August 2016.

  4. Ms Shales opposes the request by the respondent to the Tribunal that it be released from the implied undertaking with respect to the above documents.

  5. An interlocutory hearing was conducted on 8 December 2016. Ms S Oliver represented Ms Shales and attended the hearing. Ms C Tota represented the CBA and participated by telephone.

    BACKGROUND

  6. The CBA originally denied liability for a workers’ compensation claim lodged by Ms Shales on 25 November 2014, but then set aside the original decision on 4 February 2015 and accepted liability in respect of “anxiety and depressed mood”.

  7. On 2 September 2015, Ms Shales submitted a claim for permanent impairment. On 23 October 2015, the CBA denied liability to pay compensation and subsequently affirmed that decision on 21 December 2015.

  8. On 4 March 2016, Ms Shales applied to this tribunal for a review of the CBA decision of 21 December 2015.

    ISSUE

  9. The Tribunal must decide whether, in all the circumstances, to release the CBA from the implied undertaking in respect of specified documents summonsed by the Tribunal and a report by Dr Gemma Edwards-Smith: refer to [2] above.

    LEGISLATION AND POLICY

  10. Part 5 of the Tribunal’s General Practice Direction outlines procedures related to requests for release from the implied undertaking.

  11. Relevant to these proceedings, Practice Direction 5.6 states:

    If you or the decision-maker want to use a document for another purpose, including a document that was given to us in an application that has been finalised, you or they must apply to us for leave to be released from the implied undertaking.  The Request must:

    (a)       be in writing;

    (b)specify with particularity the documents in relation to which release is sought;

    (c)tell us clearly why you want the release and who will use the documents; and

    (d)if possible, specify whether or not the person to whom the documents relate consents to the release from the implied undertaking.

  12. Section 33(1AA) of the Administrative Appeals Act 1975 (the Act) requires that a decision-maker must assist the Tribunal as follows:

    In a proceeding before the Tribunal for a review of a decision, the person who made the decision must use his or her best endeavours to assist the Tribunal to make its decision in relation to the proceeding.

  13. Section 33(1AB) similarly requires that parties must assist the Tribunal:

    A party to a proceeding before the Tribunal, and any person representing such a party, must use his or her best endeavours to assist the Tribunal to fulfil the objective in section 2A.

  14. The Tribunal’s objective is detailed in s 2A of the Act as follows:

    In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that:

    (a)       is accessible; and

    (b)       is fair, just, economical, informal and quick; and

    (c)       is proportionate to the importance and complexity of the matter; and

    (d)promotes public trust and confidence in the decision-making of the Tribunal.

    EVIDENCE

  15. The Tribunal had before it the following documents:

    ·The “T Documents”;

    ·CBA Application dated 12 October 2016; and

    ·Applicant’s Submissions in Relation to Respondent’s Application for Release from Implied Undertaking dated 3 November 2016.

    CONSIDERATION

    Reasons and purpose

  16. The reasons for seeking the release from the implied undertaking and proposed use of the related documents are detailed in the CBA application, as follows:

    [3]As part of the Tribunal proceedings, summonses were issued to the applicant’s treating practitioners.  Those documents indicate that the applicant experienced significant non-work related stressors at a similar time to when she says her compensable injury arose.  There is also evidence that the applicant suffered from psychological symptoms prior to her claimed date of injury, for reasons unrelated to her employment.  These issues had not been disclosed by the applicant prior to the summonsed documents being obtained.

    [4]Dr Edwards-Smith has reviewed the summonsed documents, and in her supplementary report of 5 August 2016:

    a.Dr Edwards-Smith agrees that there were inconsistencies between the information in the documents and the history provided to her and other doctors by the applicant, particularly in relation to what she described as “very significant pre-existing long term [non-work related] stressors”, which were not reported to her.

    b.Dr Edwards-Smith described the information in the documents as “highly relevant”.

    c.Dr Edwards-Smith indicated that the documents changed her opinion in respect of the significance of work as a contributing factor to the applicant’s psychological condition in 2014.

    d.Dr Edwards-Smith also flagged that it was possible that the applicant’s condition had returned to its pre-injury levels, and that she may continue to experience symptoms of anxiety and panic, as she was experiencing them prior to the incidents at work.

    …

    [8]The respondent submits that the applicant’s conduct over the course of her claim constitutes special circumstances, and takes the matter out of the ordinary course.  The applicant has deliberately withheld important information relevant to the issue of liability, and in withholding this information, has mislead the various medical practitioners on whom she has attended.

    [9]The respondent submits that its interests will be prejudiced if the proposed release from the implied undertaking is not granted, because it will be unable to re-examine the initial acceptance of liability in light of the new information obtained in the summonsed documents.

    [10]The respondent submits that the proposed release from the implied undertaking in relation to the requested documents is in the interests of justice, as the Application presently before the Tribunal supposes that initial liability for the claim was correctly accepted.  In light of the new information, this may not be the case and unless this issue is examined further, the Tribunal may not be in a position to make the correct and preferable decision in relation to the current Application when that matter goes to hearing.

    [11]If release from the implied undertaking is granted in respect of the requested documents, the respondent’s claims management team intends to use the documents for claims management purposes, specifically, to examine whether liability for the applicant’s claim was correctly accepted in light of the new information.

    Special circumstances and factors for consideration

  17. Where documents have been lodged in Tribunal proceedings and are subject to the implied undertaking, it is necessary to establish that “special circumstances” exist to justify release from the undertaking. Release cannot be assumed. Factors to be considered in the particular circumstances include the purposes for which the information was prepared, the nature and sensitivity of the information, the attitude of the other party and any prejudice that might result from release, the circumstances in which the subject documents came into the hands of the party seeking release, and the contribution that release of the documents might make to the public interest and proceedings before the Tribunal.

  18. In Steiglitz and Comcare [2012] AATA 217 at [22], the Tribunal relevantly noted that “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”.

    Applicant’s objections

  19. Ms Shales submits that the summonsed documents do not indicate that she experienced significant non-work related stressors at the time of her compensable injury, and that the documents do not show that she suffered from psychological symptoms prior to the compensable injury[1] (Applicant’s Submissions at [15]).

    [1] Applicant’s Submissions in relation to Respondent’s Application for Release from Implied Undertaking (Applicant’s Submissions), dated 3 November 2016.

  20. Objections specific to particular summonsed documents are detailed in the Applicant’s Submissions (at [8] – [13]) as follows:

    In relation to the records summonsed from McLeod Medical Centre, it is noted that Dr Rasser was the applicant’s treating general practitioner when she was residing in Victoria.  Whilst there are references in the records to the applicant’s history of gynaelogical (sic) issues, there is no reference in these summonsed records to the applicant having been diagnosed or treated for depression or any other mental health condition.

    In relation to the records summonsed from Gippsland Specialist Services, these records indicate that the applicant was referred by Dr Rasser to the Gippsland Specialist services (Dr Sarkar) on 18 August 2005 for assistance with “a long standing problem of lack of oestrogen with associated vaginal dryness, friction in the vulvar and ulcerations”.  Dr Sarkar’s records indicate that he treated this issue, and he also discussed fertility issues with the applicant.  Again, there is no record of the applicant having been diagnosed or treated for depression or any other mental health condition.

    In relation to the records summonsed from Dr Foster and Associates, it is noted that these records relate primarily to gynaelogical (sic) issues and issues relating to menopause.  There is a reference, arising out of consultation on 21 May 2014, to the applicant having reported feelings of panic when she has hot flushes, but that she was coping with the symptoms and was able to work full-time.

    There is a later reference, arising from a consultation on 16 June 2014, where the applicant is recorded as having reported to her GP in Victoria in 2004 that she was feeling “very depressed”, and was subsequently referred to Dr Sarkar.  However, as noted above, there is no record of the applicant reporting depressive symptoms to her GP in Victoria in 2004-2005.  More significantly, the applicant’s description of feeling “very depressed” does not amount to a diagnosis of a mental health condition.

    There is no history recorded, in the records summonsed from Dr Foster and Associates, of the applicant being diagnosed with any mental health condition or receiving any treatment for any such condition.  Whilst there is a reference to a “mental health plan”, a review of the other records reveals that this is an error as the Care Plan contained in the records relates to pain management arising from the applicant’s gynaelogical (sic) condition.

    The other summonsed documents relate to treatment the applicant received relevant to the compensable injury for which liability has been accepted.

  21. Turning to the report by Dr Edwards-Smith dated 5 August 2016, Ms Shales submits that Dr Edwards-Smith’s opinions are flawed as they were formed without regard to all the relevant records.  The Applicant’s Submissions at [17] state:

    In preparing her report dated 5 August 2016, Dr Edwards-Smith was not provided with the summonsed records from the applicant’s treating doctor and specialist in Victoria in 2004-2005.  Dr Edwards-Smith places significant weight on the notes from Dr Foster and Associates, where the self-report of depressive symptoms is recorded.  However, when regard is had to the Victorian medical records, it is clear that there is no history of depressive symptoms, and no diagnosis or treatment of any mental health condition.

    Weighing the information

  22. The Tribunal is satisfied that the application before it for the release from the implied undertaking meets the requirements of Practice Direction 5.6 (refer to [10] above).  

  23. The serious and strong nature of the CBA submissions regarding the conduct of Ms Shales during the processing of her claim, together with the opinions of Dr Edwards-Smith indicate that the matter is out of the ordinary and that special circumstances exist.  

  24. The CBA has stated that it “intends to use the documents for claims management purposes, specifically, to examine whether liability for the applicant’s claim was correctly accepted in light of the new information” (CBA Application at [11]).  It seems to the Tribunal that this purpose is relevant to the substantive application for review lodged by Ms Shales with the Tribunal, is in the interests of justice, and would potentially assist the Tribunal in that review in due course.  The Tribunal accepts that this stated purpose may not be in the best interests of Ms Shales, however finds that on balance it weighs in favour of the view that this matter is out of the ordinary and that special circumstances exist.

  25. Release from the implied undertaking can be granted where special circumstances exist: Crest Homes PLC v Marks (1987) AC 829. However, as noted at [17] above, the Tribunal must look at the documents subject to the application in specific rather than general terms.

  26. The Tribunal has considered the subject documents in the context of special circumstances and having regard to the submissions of the parties.  The Tribunal noted the statement of Dr Edwards-Smith in her report dated 5 August 2016 at question 3, which suggests the complexity of this matter and the preference for complete information to the extent that is appropriate in the circumstances:

    I do therefore, consider it relevant to note that there have been considerable pre-existing symptoms of anxiety in addition to obviously distressing personal and psychological stressors of relevance. Ultimately however, this is not to negate the presence of work-related stressors of relevance as Ms Shales had reported work stressors also of relevance. I think the matter suggests that her psychological condition of Panic Disorder is multifactorial in origin, related to long-standing symptoms of anxiety, vaginismus, and perimenopausal symptoms, which seem to have triggered the first onset of frank panic attacks with work stressors being one of the contributing stressors to the onset of a period of incapacity.

  27. The Tribunal makes the following specific comments with respect to the documents covered by the current CBA application:

    a.Examination of the records summonsed from McLeod Medical Centre supports the related submissions at [19] above. There are no specific CBA submissions disputing those submissions.

    b.Examination of the records summonsed from Gippsland Specialist Services supports the relevant submissions at [19] above. The Tribunal notes that Dr Anuradha Sakar is an obstetrician and gynaecologist and the information contained in the records is sensitive and highly personal. The CBA has not provided specific or compelling reasons sufficient to outweigh the relevant submissions at [19]. The implied undertaking maintains rights to confidentiality and these rights “should not be disturbed except to the extent necessary for the purpose of the administration of justice”: Re San and Military Rehabilitation and Compensation Commission [2008] AATA 237.

    c.The submissions at [19] in respect of the records summonsed from Dr Foster & Associates accept that the documents contain references to “feelings of panic”, feeling “very depressed” and a “mental health plan”. Although the CBA provides no specific or compelling argument that might outweigh these submissions opposing release from the implied undertaking, the Tribunal considers that on balance it would be imprudent to not release the documents provided by Dr Foster and Associates.

    d.Ms Shales notes that the other summonsed documents are relevant to the compensable injury for which liability has been accepted, and offers no specific reasons opposing release.  Similarly, no relevant specific submissions have been made by the CBA. The Tribunal has already determined that special circumstances exist in this matter and therefore considers that release is consistent with the interests of justice.

    e.The report by Dr Edwards-Smith following her review of the summonsed documents contains serious and significant opinions. As shown at [20] above, Ms Shales submits that the report is flawed. That might be so, but it is not necessary for the Tribunal in the present interlocutory proceedings to adjudicate on the validity of the report’s opinions. On balance, the Tribunal considers that having regard to the serious nature of Dr Edwards-Smith’s report, it would be imprudent to refuse release from the implied undertaking.

    CONCLUSION

  1. Having regard to all the material before it, the Tribunal is satisfied that release from the implied undertaking as sought by the CBA in this matter is in the interests of justice and of assistance to the Tribunal in pursuing its objective with respect to the following documents:

    ·all documents produced under summons by The Wishing Well Clinic;

    ·all documents produced under summons by Busselton Medical Practice;

    ·all documents produced under summons by Bunbury Hospital;

    ·all documents produced under summons by Intrinsic Health and Wellbeing;

    ·all documents produced under summons by Dr Foster & Associates; and

    ·supplementary medical report of Dr Gemma Edwards-Smith dated 5 August 2016.

    DECISION

  2. The Tribunal releases the CBA from the implied undertaking in respect of the documents detailed at [28] above.

I certify that the preceding 29 (twenty-nine) paragraphs are a true copy of the reasons for the decision herein of Brigadier AG Warner, Member.

......[Sgd]..................................................................

Administrative Assistant

Dated: 23 January 2017

Date of hearing: 8 December 2017
Representative of the Applicant: Ms G Plunkett-Scott
Solicitors for the Applicant: Maurice Blackburn
Representative of the Respondent: Ms C Tota
Solicitors for the Respondent: HBA Legal

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Cases Citing This Decision

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Cases Cited

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Statutory Material Cited

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KATHERINE VON STIEGLITZ and COMCARE [2012] AATA 217
"SAN" and Military Rehabilitation and Compensation Commission [2008] AATA 237