Shales and Commonwealth Bank of Australia

This matter concerned an application by the Commonwealth Bank of Australia (CBA) for release from the implied undertaking of confidentiality in relation to certain documents. Ms Shales had lodged a workers' compensation claim, which the CBA initially denied but later accepted in respect of anxiety and depressed mood. Ms Shales subsequently claimed permanent impairment, which the CBA denied. Ms Shales applied to the Tribunal for a review of the CBA's decision. The CBA sought release from the implied undertaking to use documents obtained via summons from Ms Shales' treating practitioners, and a supplementary medical report, for claims management purposes.

The Tribunal was required to determine whether, in the circumstances, it should grant the CBA's application for release from the implied undertaking. This involved considering the requirements of Part 5 of the Tribunal's General Practice Direction, which mandates that requests for release must be in writing, specify the documents, clearly state the reason for release and intended user, and ideally indicate the consent of the person to whom the documents relate. Furthermore, the Tribunal had to consider its statutory obligation under section 33(1AA) and (1AB) of the Administrative Appeals Act 1975 to be assisted by the parties in fulfilling its objective of providing a review mechanism that is accessible, fair, just, economical, informal, quick, proportionate, and promotes public trust and confidence.

The Tribunal reasoned that the CBA had demonstrated special circumstances justifying release from the implied undertaking. The CBA argued that the summonsed documents and the supplementary report revealed inconsistencies between the information provided by Ms Shales to her treating practitioners and the history she provided to Dr Edwards-Smith, particularly concerning significant non-work related stressors predating her claimed injury. Dr Edwards-Smith's supplementary report indicated that this new information was highly relevant and altered her opinion on the significance of work as a contributing factor to Ms Shales' psychological condition. The CBA contended that withholding these documents would prejudice its ability to re-examine the initial acceptance of liability and prevent the Tribunal from making a correct and preferable decision.

The Tribunal concluded that releasing the CBA from the implied undertaking in respect of the specified documents would be in the interests of justice and of assistance to the Tribunal in fulfilling its objectives. Accordingly, the Tribunal ordered that the CBA be released from the implied undertaking concerning all documents produced under summons by The Wishing Well Clinic, Busselton Medical Practice, Dr Foster & Associates, Bunbury Hospital, Intrinsic Health and Wellbeing, and the supplementary medical report of Dr Gemma Edwards-Smith dated 5 August 2015.