Transport Accident Commission v Baw Baw Shire Council
[2025] VSC 538
•2 September 2025
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURIES LIST
S ECI 2023 05271
BETWEEN:
| TRANSPORT ACCIDENT COMMISSION | Plaintiff |
| v | |
| BAW BAW SHIRE COUNCIL & ORS (according to the attached Schedule) | Defendants |
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JUDGE: | Baker JR |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 1 August 2025 |
DATE OF RULING: | 2 September 2025 |
CASE MAY BE CITED AS: | Transport Accident Commission vs Baw Baw Shire Council |
MEDIUM NEUTRAL CITATION: | [2025] VSC 538 |
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CIVIL PROCEDURE – Transport Accident Compensation scheme – Claim brought under s 104 of the Transport Accident Act 1986 (Vic) for indemnification for amounts paid – Application for further discovery of documents in related common law damages proceeding – Indemnity proceeding pursued years after the finalisation of the common law proceeding – Operation of s 126B of the Transport Accident Act 1986 (Vic) – Documents produced or served or information acquired under or in accordance with the Act – Implied undertaking to the Court from Hearne v Street and Harman v Secretary of State for the Home Department – Rule 29.08(2) Supreme Court (General Civil Procedure) Rules 2015 (Vic) – Whether the claimant is on notice of the application – Privacy and confidentiality of medical records – Application partially successful.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S Martin | Wisewould Mahony |
| For the First Defendant | --- | Gilchrist Connell Pty Ltd |
| For the Second Defendant | --- | Kennedys (Australasia) Partnership |
| For the Third Defendant | --- | Lander & Rogers |
| For the Fourth Defendant | --- | Moray & Agnew |
TABLE OF CONTENTS
A.. Introduction
B.. The application and evidence
C.. Are the documents discoverable?
D.. What is the role of s 126B?
D.1 Interpreting s 126B
D.2 Does s 126B confer a right of access to documents?
D.3 Applying s 126B to the present circumstances
E... Should an order be made?
E.1 Photographs
E.2 Interrogatories and answers
E.3 Medical reports
F... Conclusion
JUDICIAL REGISTRAR:
A Introduction
This proceeding is a claim brought under s 104 of the Transport Accident Act 1986 (Vic) (‘the TAA’) by the Transport Accident Commission (the ‘TAC’) for indemnification for amounts paid in respect of injuries suffered by a motorcyclist (‘the claimant’) in January 2016. The defendants to the present proceeding were also defendants to a common law damages claim issued in 2018 by the claimant, which settled before trial, in around mid-2019.[1]
[1]Affidavit of Dominic Joseph, sworn 18 July 2025 (‘First Cook Affidavit’) 2, [5].
Somewhat unusually, the present proceeding has not been run in parallel with the claimant’s common law claim, but rather was commenced some years later in November 2023, and appears to have been served in late 2024. It has received a standard interlocutory timetable and has been listed for trial commencing 6 October 2025.[2] As a result of this timing, orders have not been made in this proceeding to allow for the use of evidence and other materials from the related common law claim, as is commonly the case when two such proceedings are known to each other and run in parallel. Rather, it appears that the TAC has not had access to some categories of material that it believes were served in the claimant’s 2018 claim.
[2]Order of Baker JR in Transport Accident Commission v Baw Baw Shire Council & Ors (S ECI 2023 05271, 21 October 2024) [1].
By a summons filed on 21 July 2025, the TAC has applied for orders requiring the defendants ‘to provide further discovery of all photographs, medical and expert liability reports exchanged or served’ in the claimant’s 2018 proceeding.[3] The material relied upon in the application identified that the request subsequently expanded to also address interrogatories and answers served in that proceeding.
[3]Summons filed by the Transport Accident Commission in Transport Accident Commission v Baw Baw Shire Council & Ors (S ECI 2023 05271, 21 July 2025) [1].
The application was referred to me for hearing and determination by an order of Goulden AsJ made on 31 July 2025, pursuant to r 84.04(1) of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’).
For the reasons that follow, I have concluded that the orders sought by the TAC should be made in respect of two of the four categories being raised in this application.
B The application and evidence
The documents sought by the TAC are only in the defendants’ possession because they received that material in the course of the claimant’s prior litigation. The complexity in the present situation arises because ordinarily parties would not be permitted to use such material for a purpose other than the conduct of the proceeding in which it was produced. An important feature of the parties’ approaches to this application is the effect of s 126B of the TAA which, despite being in operation for almost 15 years at this point, appears to have been the subject of curiously little consideration to date. The provision reads:
Despite anything to the contrary in any Act (other than the Charter of Human Rights and Responsibilities ) or at common law, a document produced or served or information acquired in respect of a proceeding or claim for compensation, damages, indemnity or other payment under, or in accordance with, this Act, whether before, on or after the commencement of section 12 of the Transport Accident and Accident Compensation Legislation Amendment Act 2010 , may be used in, and for the purposes of, any other proceeding or claim for compensation, damages, indemnity or other payment under, or in accordance with, this Act.
In short, the TAC’s position in the application was that the obligation established in Harman v Secretary of State for the Home Department (referred to as ‘the Harman obligation’ for convenience),[4] as recognised in Australia in Hearne v Street,[5] was removed as an obstacle in this proceeding by s 126B. As a result, the TAC argues that the categories of documents it sought from the claimant’s 2018 proceeding were discoverable in this proceeding.
[4][1983] 1 AC 280.
[5](2008) 235 CLR 125.
Somewhat regrettably, the key issues in this application, and in particular the issues as to the interpretation of this section, were not really explored in detail in advance of the hearing. The parties did not provide any written submissions concerning the application. Their oral submissions addressed the issues at a higher level than this ruling has done, focusing principally on questions of production rather than the operation of the section itself. The defendants’ attitudes towards the application were to neither consent nor oppose, essentially saying that it was a matter for the Court whether the orders sought should be made. There was therefore no real contradictor acting to oppose or test the TAC’s argument concerning s 126B, though there was some limited reference in the affidavit material to some of the defendants disagreeing with the TAC’s asserted position.
The evidence in the application was spread across five affidavits, but can be summarised reasonably briefly.
In support of the application, the TAC relied upon two affidavits of its solicitor, Dominic Joseph Cook, sworn 18 July 2025 and 31 July 2025.
Mr Cook’s first affidavit clarifies that the orders sought by the TAC in this application are for the defendants to make discovery of the following categories of documents from the claimant’s 2018 proceeding:
i.Medical reports served or exchanged in the common law damages proceeding.
ii.Liability reports served or exchanged in the common law damages proceeding.
iii.Any photographs of the accident scene or the road marks served or exchanged in the common law damages proceeding.
iv.Any other interrogatories and their answers served in the common law damages proceeding.[6]
[6]First Cook Affidavit (n 1) 3, [17].
The affidavit also sets out the background to the dispute summarised above, and identifies, relevantly, that:
(a)in response to a request from the TAC, the second, third and fourth defendants have provided some of the interrogatories and answers from the claimant’s proceeding;[7]
(b)the second defendant has provided the TAC with a copy of the claimant’s answers to interrogatories in that proceeding dated 4 December 2018, which annex some black and white photographs of the scene of the accident;[8]
(c)none of the defendants have provided any medical or expert reports from the claimant’s proceeding;[9] and
(d)the TAC’s position was that ‘Pursuant to s 126B of the Transport Accident Act 1986 (Vic) these documents are plainly discoverable, and the mediation cannot be held until they are discovered.’[10]
[7]Ibid 3, [13].
[8]Ibid 3, [14].
[9]Ibid.
[10]Ibid 3, [15].
The first defendant relied upon an affidavit of its solicitor, Nicole Joanne Norris, sworn 23 July 2025. Ms Norris states that many of the documents sought by the TAC were served by the claimant’s solicitors in 2018 or 2019. However, due to her moving between firms while that claim was ongoing, as well as the passage of time generally, it has been difficult to identify and collate the material sought.[11]
[11]Affidavit of Nicole Joanne Norris, sworn 23 July 2025 (‘Norris Affidavit’) 2, [6].
Ms Norris notes that her client’s position (as communicated in a letter to Mr Cook) was a concern that the release of the material sought from the TAC may be a breach of the Harman obligation, and that given the documents contain personal information, the claimant should also consent to the disclosure.[12] Ms Norris notes that she has not been authorised by the claimant or her lawyers to disclose the documents sought by the TAC,[13] and it was not clear to her whether the TAC’s representatives had sought such consent from the claimant.[14] Ms Norris sought that an order be made confirming that she and her client were released from the Harman obligation in the event the Court concludes that the documents sought by the TAC are discoverable.[15]
[12]Ibid 2, [7].
[13]Ibid 2, [8].
[14]Ibid 2, [9].
[15]Ibid 2, [10].
The letter exhibited to Ms Norris’ affidavit also confirms that the first defendant obtained and served four medico-legal reports in the claimant’s 2018 claim, and that no expert liability reports were exchanged between the claimant and the defendants in that proceeding.[16] This was not disputed by any party in the hearing of the application.
[16]Ibid Exhibit ‘NJN-1’ 1, [5].
The third defendant relied upon an affidavit of its solicitor, Katherine-Lisa Stefano, sworn 30 July 2025. Ms Stefano’s affidavit exhibits correspondence between her firm and the TAC’s solicitors in response to the TAC’s request, including querying whether the TAC had obtained the claimant’s consent to the disclosure of the medical material concerned.[17] In response, the TAC’s solicitors stated that, in light of s 126B and the permission it provides to use documents from other proceedings, they were unsure of the basis for the third defendant’s query. The correspondence did not respond directly to the query as to whether the claimant had consented.[18]
[17]Affidavit of Katherine-Lisa Stefano, sworn 30 July 2025 Exhibit ‘KLS1’, email from Katherine Stefano to Patrick Russell, 9 July 2025.
[18]Ibid; Email from Dominic Cook to Katherine Stefano, 21 July 2025.
Ms Stefano’s affidavit otherwise stated that her firm had been unable to locate any medical or expert reports concerning the claimant commissioned by the third defendant. Ms Stefano also stated that due to the passage of time and changes in her firm’s file management software, it was unclear whether the documents they had located represented all of the documents in the original proceeding.[19] Ms Stefano said that the third defendant otherwise adopted the position set out in Ms Norris’ affidavit, neither consenting to nor opposing the TAC’s application.[20]
[19]Ibid 2, [4].
[20]Ibid 2, [5].
The fourth defendant relied upon an affidavit of its solicitor, George Chadwick, affirmed 31 July 2025. Mr Chadwick’s affidavit exhibits a letter sent to Mr Cook setting out the fourth defendant’s position on the application. The letter notes that the fourth defendant has similar concerns to those expressed by the other defendants, stating that:
… having reviewed the Second Reading Speeches relating to the insertion of [s126B] into the [Transport Accident Act], and having been unable to locate any relevant judicial authority on the issue, we remain uncertain whether the section would permit our client to provide the requested material to [the TAC].’[21]
[21]Affidavit of George Chadwick, affirmed 31 July 2025 (‘Chadwick Affidavit’) Exhibit ‘GDC-1’ [3(a)].
Mr Chadwick’s letter also states that no expert liability evidence was served in the claimant’s 2018 proceeding.[22]
[22]Ibid [3(c)].
Finally, Mr Cook’s further affidavit sworn on 31 July 2025 sets out the TAC’s position in response to the defendant’s concerns as follows:
3.I respectfully submit that once the documents have been received by the Defendant’s solicitors then it is up to them to discover that material or claim privilege. The Defendant’s solicitors have not listed (discovered) the documents nor set out their grounds for privilege.
4.The Plaintiff's primary position that s 126B of the Transport Accident Act 1986 (Vic.) (“the Act") waives what is generally described as Harman Undertaking. If a Harman Undertaking were to apply, then it is up to the person with the documents (the Defendants) to apply to the Court to have that privilege lifted in the original proceeding. I do not believe any of the Defendants have applied to the Court in the Claimant’s proceeding to be relieved of the Harman Undertaking.
5.I respectfully submit that the meaning of s 126B of the Act is plain and evident on its face. Documents served or used in the Claimant’s damages action should be discoverable for other actions under the Act, including a recovery action under s 104 of the Act.[23]
[23]Affidavit of Dominic Joseph Cook, sworn 31 July 2025 (‘Second Cook Affidavit’) 1-2, [3]-[5].
Mr Cook’s affidavit exhibits the Explanatory Memorandum, Statement of Compatibility and Second Reading Speech relating to the introduction of s 126B in the TAA in 2010.[24] In particular, Mr Cook extracts the relevant section of the Statement of Compatibility, which states:
Clause 12 [i.e. what became s 126B] therefore clarifies it is appropriate for the TAC to use documents in the specified circumstances. I consider that any interference with the right to privacy occasioned by this provision is neither unlawful nor arbitrary. The use of information or documents obtained is strictly limited to purposes related to claims, proceedings or payments under the act.[25]
[24]Via the Transport Accident and Accident Compensation Legislation Amendment Bill 2010 (Vic).
[25]Statement of Compatibility, Transport Accident and Accident Compensation Legislation Amendment Bill 2010 (Vic) 2890; Second Cook Affidavit (n 24) 2, [6].
Although Mr Cook did not extract these sections in the body of his affidavit, the preceding paragraphs in the statement (which was exhibited) also provides relevant context to the present application:
Clause 12 engages the right to privacy by providing that documents or information obtained in the course of a claim or proceeding under the Transport Accident Act 1986 or at common law may be used in and for the purposes of managing any claim, procedure or payment under the act.
Generally, the ‘Harman rule’ holds that certain documents or information produced under compulsion and received by another party in the course of legal proceedings should not be used for any purpose outside the context of that particular legal proceeding. However, a rigid application of this rule is too narrow in the context of transport accident compensation claims, where it is necessary for the TAC to use such documents or information to carry out its objectives and properly exercise its statutory functions. The TAC often has an ongoing relationship with claimants in relation to the management and funding of their compensation benefits, and during the period of this relationship certain aspects of a claim may be litigated or reviewed by a court or a tribunal. The strict operation of the Harman rule would prevent the TAC from accessing relevant documents or information provided during such proceedings in order to carry out its objectives and functions under the act. For example, such documents or information could include, or relate to, medical or financial reports which are necessary for the ongoing management of a compensation claim.[26]
[26]Statement of Compatibility, Transport Accident and Accident Compensation Legislation Amendment Bill 2010 (Vic) 2890; Second Cook Affidavit (n 24) Exhibit ‘DJC-2’ 13.
Finally, in relation to the question of the claimant’s consent, Mr Cook noted that he had emailed the claimant’s solicitors in October 2024 to ask about medical or liability reports from the 2018 proceeding. He did not receive a response and understands that the solicitor who had acted for the claimant had since left that firm, so he considered it appropriate to seek that the defendants discover that material in this proceeding. He states ‘Having said that, I believe it is neither appropriate nor necessary to obtain a third parties permission to use documents over which they have already waived privilege by serving those documents on the Defendants in this action.’[27]
[27]Second Cook Affidavit (n 24) 2, [8].
C Are the documents discoverable?
Although not expressed as such in the summons (no specific power was identified by the TAC for the orders it sought), the application arises under r 29.08(2) of the Rules, which provides:
Where, at any stage of a proceeding, it appears to the Court from evidence or from the nature or circumstances of the case or from any document filed in the proceeding that there are grounds for a belief that some document or class of document relating to any question in the proceeding may be or may have been in the possession of a party, the Court may order that party to make and serve on any other party an affidavit stating—
(a)whether that document or any, and if so, what document or documents of that class is or has been in that party's possession; and
(b)if it has been but is no longer in that party’s possession, when the party parted with it and that party's belief as to what has become of it.
The principles applicable to applications of this nature are well understood, and in this respect were not the subject of any particular dispute between the parties. As the rule makes clear, in order to obtain orders of the kind sought, the applying party must establish the existence of grounds for a belief that documents may be or may have been in the possession of a party, and that those documents relate to any question in the proceeding. Where those requirements are satisfied, the Court has a discretion to order further discovery by way of an affidavit.
In the present circumstances, the application of this test to the TAC’s summons does not give rise to any particular controversy. As the documents sought all arose in the claimant’s damages claim, and as the present proceeding claims an indemnity in respect of compensation paid for the same incident, there is no real doubt that the documents relate to a question in the proceeding.
Although the fourth defendant queried the relevance of medical evidence in circumstances where the amount paid to the claimant by the TAC (and the reasonableness of those payments) appear not to be in dispute,[28] I note that, formally, those amounts paid are not admitted in the defences that have been filed, and so remain in issue.
[28]Chadwick Affidavit (n 22) Exhibit ‘GDC-1’ [3(b)].
Further, the TAC pleads that the claimant was injured and suffered loss and damage as a result of her accident.[29] The second and third defendants do not admit this allegation, however the first defendant goes further and also ‘denies that the claimant sustained any injury to the cervical spine or lumbar spine as a result of the accident’ and pleads that the claimant ‘sustained the alleged injuries in a subsequent motorcycle accident’.[30] As such, causation is a matter in dispute between the parties.
[29]Statement of Claim in Transport Accident Commission v Baw Baw Shire Council & Ors (S ECI 2023 05271, 3 October 2024) (‘Statement of Claim’) [25].
[30]Defence filed on behalf of the first defendant in Transport Accident Commission v Baw Baw Shire Council & Ors (S ECI 2023 05271, 19 December 2024) [25]; Defence filed on behalf of the second defendant in Transport Accident Commission v Baw Baw Shire Council & Ors (S ECI 2023 05271, 21 February 2025) [25]; Defence filed on behalf of the third defendant in Transport Accident Commission v Baw Baw Shire Council & Ors (S ECI 2023 05271, 21 July 2025) [25]; Defence filed on behalf of the fourth defendant in Transport Accident Commission v Baw Baw Shire Council & Ors (S ECI 2023 05271, 18 December 2024) [25].
In addition, of particular relevance in a situation involving multiple defendants, s 104(2) of the TAA provides, essentially, that a party’s liability to indemnify the TAC under that section is not to exceed the amount that the party would be liable to pay the injured party in respect of the injury in question. Questions of apportionment of responsibility for the accident between the defendants therefore arise, and it is conceivable that in some circumstances medical evidence might have some bearing on this issue (if, for example, some aspects of a plaintiff’s injuries were caused by specific elements for which one defendant was specifically responsible).
I am therefore satisfied that the documents sought by the TAC relate to questions in the proceeding.
Further, the evidence in the application establishes a clear basis for a belief that some combination of the defendants either have or had documents in their possession in the form of medical reports, photographs and interrogatories and corresponding answers.
For the final category sought by the TAC, expert liability reports, there is unchallenged evidence to the effect that no such documents exist. Therefore, I am not satisfied that a basis exists for the relevant belief concerning such documents required by r 29.08(2) of the Rules.
As a result, I am satisfied (and did not understand it to be a matter of any serious dispute) that the documents sought by the TAC, other than the category ‘expert liability reports’, satisfy the requirements of r 29.08(2).
D What is the role of s 126B?
Ordinarily, as the defendants noted, this would appear to be a situation where the Harman obligation operates. The remaining categories of documents in the application were produced either through discovery, or the operation of the Rules in relation to answers to interrogatories, and would not be able to be used for a purpose other than the conduct of the claimant’s 2018 proceeding.
Having formed the view that the remaining categories satisfy the requirements of r 29.08(2), the question that arises is whether the Court should exercise its discretion to make an order in the form sought by the TAC. Central to the TAC’s position on this issue is the operation of s 126B of the TAA.
The parties noted that s 126B appeared not to have received any judicial consideration previously, and they did not identify any relevant authorities in the course of this application. The parties’ views in this regard do not appear to have been entirely accurate, as the section was considered relatively recently by Senior Member Tang in UJV v Transport Accident Commission (Review and Regulation) (‘UJV’),[31] albeit in a different context (being consideration of the power of VCAT to make orders restricting the use of documents produced under a subpoena in a proceeding before the Tribunal to review a decision made by the TAC). That decision is not presently relevant to the dispute in this proceeding, save to observe that the Senior Member formed the view that s 126B in that proceeding addressed how the TAC could make use of documents once they have been released to it.[32] This appears to accord with the view I express below that the provision addresses the use of documents but does not provide a right of access.
[31][2024] VCAT 1147.
[32]Ibid [30].
Other than UJV, I have not identified any reported decisions that deal with s 126B.
A similar provision to s 126B also exists in s 269 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), albeit in a different context (in which the use to which affected documents may be put is expressed to be subject to the other provisions of that Part of the Act, the surrounding sections of which include a number of provisions concerning the use, admissibility and protection of information that might be used or obtained under the legislation).
This largely equivalent section also appears to have received limited consideration, despite being of a similar age to s 126B. It was considered by the Fair Work Commission in Gautam v Costco Wholesale Australia Pty Ltd,[33] and the Federal Court in Fletcher v Metropolitan Fire and Emergency Services Board,[34] which are not presently relevant other than to note again the distinction the be drawn between ‘use’ of a document and the Court’s power to order its production.
[33](2021) 304 IR 15.
[34][2012] FCA 1513.
D.1 Interpreting s 126B
With little, if any, guidance available from prior decisions as to the role of the section in an application such as the present, the starting point for any interpretation is the text of the section itself:
Despite anything to the contrary in any Act (other than the Charter of Human Rights and Responsibilities) or at common law, a document produced or served or information acquired in respect of a proceeding or claim for compensation, damages, indemnity or other payment under, or in accordance with, this Act, whether before, on or after the commencement of section 12 of the Transport Accident and Accident Compensation Legislation Amendment Act 2010, may be used in, and for the purposes of, any other proceeding or claim for compensation, damages, indemnity or other payment under, or in accordance with, this Act.[35]
[35]Transport Accident Act 1986 (Vic) s 126B.
On a plain reading, the section appears to have the potential for an unexpectedly broad operation. It is not expressed to be confined in operation to the TAC, as the subject of the section is the documents or information concerned. In fact, the TAC’s argument in this application appears to presume that it applies in respect of other parties to litigation connected with the TAA, such that they would be relieved from the Harman obligation. If this is the case it would appear that the ‘benefits’ of the provision would flow in both directions, and all parties and practitioners in such litigation would potentially be able to make use of a much wider range of material than is typically the case.
The section is also not limited by the content or subject matter of the document or information concerned. There is no express requirement that the two proceedings referred to in the provision even be related. Further, although ‘served’ has a clear meaning and ‘produced’ might be taken to be used in the same manner as the Rules and other legal settings when material is provided in response to a notice to produce or a subpoena, how information that is the subject of s 126B might be ‘acquired’ appears to be left unbounded.
The provision is also expressed in a permissive manner, stating that material ‘may be used’. This, combined with the lack of any qualifications concerning the subject-matter of the material just referred to, provides a strong signal that the section does not detract from the Court’s role in determining what material is discoverable in a proceeding (or of a trial judge in determining questions of admissibility). To conclude otherwise would lead to potentially absurd results.
The section applies ‘despite anything to the contrary in any Act (other than the Charter of Human Rights and Responsibilities) or at common law’. Although it is considerably beyond the scope the present application, it would appear arguable that in light of the lack of other meaningful limits on its operation apparent in its text, the section could have the effect of limiting the operation of many other bases upon which the use or production of documents may ordinarily be restricted, including, for example, legal professional privilege or cases of inadvertent disclosures of confidential information between legal practitioners. It could also give rise to uncertainty in some situations about the effect of any orders the Court might make to restrict the disclosure or use of information in a proceeding, for example under a suppression order or a closed court order under the Open Courts Act 2013 (Vic), or orders under s 32F of the Evidence (Miscellaneous Provisions) Act 1958 (Vic).
In a setting where the section appears to be expressed very broadly, and where there appears to have been little, if any consideration given to its operation to date, the defendants’ caution about their responses to the TAC’s request (and their desire to obtain an order from the Court before proceeding with any disclosure) appears quite understandable.
The principles applicable to statutory construction are well established and frequently cited. A useful summary was provided by Forbes J in Jerak v Lazarus at [16]:[36]
[36][2020] VSC 729.
The approach to the statutory construction of the provision is not controversial. The following principles can be distilled from Project Blue Sky:
(a)The court is to give the words the meaning that the legislature is taken to have intended. The intended, or legal meaning is not necessarily the grammatical meaning.
(b)The court’s primary object is to construe the relevant provision so that it is consistent with the language and purpose of all provisions of the statute.
(c)The meaning is to be ascertained “by reference to the language of the statute viewed as a whole”.
(d)Construction should presume that the statute gives effect to harmonious goals.
(e)Any conflict between provisions within the statute should be interpreted to best give effect to maintaining the unity of the provisions and may require determination of a hierarchy in order to give conflicting provisions each a meaning and purpose that gives effect to the overall unity of the statutory scheme.
(f) A court should strive to give meaning to every word of the provision.
And finally:
(g)There are limited circumstances in which words may be read into the relevant provision, the task is primarily a construction of the actual words used, not one that ‘fills gaps’.
Based on the extrinsic supporting material annexed to Mr Cook’s second affidavit, the intent behind the section is clearly apparent. The section seeks to facilitate the functioning of the transport accident compensation scheme and the work that the TAC is required to perform under it. The material extracted notes in particular that:
(a)the exception to the Harman obligation is ‘necessary for the TAC to use such documents or information to carry out its objectives and properly exercise its statutory functions’;[37]
(b)the TAC ‘often has an ongoing relationship with claimants in relation to the management and funding of their compensation benefits, and during the period of this relationship certain aspects of a claim may be litigated or reviewed by a court or a tribunal’;[38]
(c)the vice sought to be remedied by the provision is that the Harman obligation would ordinarily ‘prevent the TAC from accessing relevant documents or information provided during such proceedings’;[39] and
(d)such material ‘could include, or relate to, medical or financial reports which are necessary for the ongoing management of a compensation claim’.[40]
[37]Statement of Compatibility, Transport Accident and Accident Compensation Legislation Amendment Bill 2010 (Vic) 2890.
[38]Ibid.
[39]Ibid.
[40]Ibid.
Pausing there, paragraph (b) above refers to claimants and claims in connection with the management and funding of compensation benefits, which must be taken as a reference to benefits under the TAA. The wording ‘such proceedings’ extracted in paragraph (c) refers back to the aspects of a claim that may be litigated or reviewed by a court or tribunal, extracted in (b).
The TAA obviously makes provision for the TAC’s ability to bring proceedings claiming an indemnity such as the present case, so there is clearly an argument that the present proceeding is of a kind specifically contemplated by the legislature when introducing s 126B. However, it is not entirely clear from the secondary material exhibited to Mr Cook’s second affidavit that the legislative intent behind s 126B was to remove the effect of the Harman obligation entirely from all parties across proceedings brought both under the TAA and at common law, so much as it was to avoid inefficiencies and difficulties that could arise if the TAC was constrained from using information or material it obtained through one process in executing its functions under the TAA in another proceeding.
The second paragraph of the Statement of Compatibility extracted above at paragraph 22 can be read as favouring this latter view, given the references to ‘claimants’, ‘claims’ and ‘such proceedings’ referred to in paragraph 47(c) above. There is a difficulty with this assessment, however, as the preceding paragraph of the Statement of Compatibility clearly expresses an intent that the section would also facilitate the use of documents from a common law proceeding in a separate claim under the TAA:
Clause 12 engages the right to privacy by providing that documents or information obtained in the course of a claim or proceeding under the Transport Accident Act 1986 or at common law may be used in and for the purposes of managing any claim, procedure or payment under the act. [41]
[41]Ibid.
Unfortunately, the wording of s 126B itself appears to differ somewhat from this summary. The section applies in respect of documents or information obtained ‘in respect of’ a proceeding ‘under, or in accordance with’ the TAA, and provides that such material may be used ‘in, and for the purposes of’ another proceeding or claim ‘under, or in accordance with’ the TAA.
The Explanatory Memorandum annexed to Mr Cook’s second affidavit first describes the operation of the section slightly differently again in its initial summary, this time focusing on the acquisition of the document or information in question and the connection between that action and the TAA, rather than the connection between the TAA and the proceeding in which that occurred:
The Bill updates the Transport Accident Act 1986 to ensure that—
...
·a document or information acquired under or in accordance with the Act may be used for the purposes of any other proceeding or claim for compensation under the Act;[42]
[42]Explanatory Memorandum, Transport Accident and Accident Compensation Legislation Amendment Bill 2010 (Vic) 2.
Subsequently, the Explanatory Memorandum provides a description of the section in similar terms to the Statement of Compatibility:
Clause 12 inserts a new section 126B of the Act which provides that a document used, or information acquired in proceedings or a claim under or in accordance with the Act may be used for the purposes of any other proceeding or claim for compensation under the Act.[43]
[43]Ibid 6.
The second reading speech exhibited is silent as to the operation of the intent of s 126B, so it appears that the Statement of Compatibility and Explanatory Memorandum are the extent of the extrinsic material available. It is clear from those materials and the text of the provision itself that the legislative intent was to facilitate the TAC’s use of information in performing its functions under the TAA that it would otherwise not have had the ability to use due to the operation of the Harman obligation. However, beyond this, the boundaries of this intention are somewhat more difficult to discern.
The context within which s 126B sits is also relevant to note. The preceding section of the TAA, s 126A, explicitly contemplates that legal professional privilege or client legal privilege may attach to documents held by the TAC, and that this privilege must be waived once legal proceedings are no longer (and can no longer be) on foot. It would appear to be implicit from this provision’s existence that s 126B does not operate to remove these privileges from the TAC, or to provide a means for parties in other proceedings to gain access to documents held by the TAC from a claim concerning the management of benefits under the TAA. I note that this would not appear to provide any protections in relation to other documents that are not privileged, however.
Further, the TAA also provides some specific protections in relation to ‘restricted information’ in s 131. Such protection restricts certain conduct by a ‘specified person’, defined relevantly as someone appointed for the purposes of the TAA or employed or engaged by the TAC.[44] ‘Restricted information’ means information that identifies or could identify a person, which is or was acquired by reason of the relevant person having been a specified person.[45] The section prohibits the recording, disclosure or use of restricted information other than in accordance with that section. The section provides a number of circumstances in which a specified person may record, disclose or use restricted information, including for the purposes of performing functions or exercising powers under the TAA, if authorised to do so under another Act or law, and for the purpose of or in connection with legal proceedings.[46] The section also permits a specified person to disclose restricted information if the person to whom the restricted information relates consents to the disclosure.[47]
[44]Transport Accident Act 1986 (Vic) s 131(5) (definition of ‘specified person’).
[45]Ibid (definition of ‘restricted information’).
[46]Ibid s 131(2).
[47]Ibid s 131(3).
The combination of the provisions identified so far is capable of operating harmoniously if s 126B is understood as operating to remove some constraints on the TAC’s use of documents it holds across multiple proceedings. The combination of the secrecy provisions in the TAA and the explicit maintenance of legal privileges that attach to documents held by the TAC would work to protect sensitive identifying information from use or disclosure beyond what was necessary to facilitate the administration of the transport accident compensation scheme, limiting the potentially significant curtailment of privacy and confidentiality interests that arises from the removal of the Harman obligation.
Sections 126A and 126B would appear to be less harmonious if the latter section operated in broader manner that could be relied upon by parties other than the TAC in litigation unconnected with the TAC’s functions under the TAA. For example, a broader interpretation might attract arguments about whether legal professional privilege operates to prevent the disclosure in a TAA-related proceeding of documents or information obtained in a common law damages claim. In light of the material exhibited to Mr Cook’s second affidavit, I find it very difficult to believe that the legislature’s intentions in enacting s 126B extended this far.
D.2 Does s 126B confer a right of access to documents?
Although it is not entirely clear whether this position was maintained given the oral submissions that were made, the first argument that was raised by the TAC in correspondence is that the documents are discoverable and should be produced by the defendants pursuant to s 126B.
As noted above, the section is not constrained by the subject-matter of the documents or information in question, nor the two proceedings or claims referred to in it. All it requires is that the material was produced/served/acquired in a proceeding or claim under or in accordance with the TAA, and that the proceeding that the material is to be used in also be under or in accordance with the TAA. The fact that the section is unconcerned with the content of the documents or information in question indicates that it does not displace ordinary principles that apply to litigation concerning relevance, discovery and admissibility.
Further, ‘use’ is a broad and general term, and its ordinary meaning of deploying a document within a proceeding to achieve some end would seem to presuppose that a party must already have the relevant material in its possession, or at least have access to it.
Based on the text of the provision alone, therefore, it seems clear that s 126B does not confer a right to access or obtain material that is not already in a party’s possession. This is also consistent with the conclusions reached in the authorities identified above. Rather, the section facilitates the use of documents or information already available to a party (or to which a party is already otherwise entitled), in or for the purposes of another proceeding or claim. It says nothing about how a party can or should obtain that material.
D.3 Applying s 126B to the present circumstances
Turning next to the question of how the section actually operates in the present situation, although the argument was not expressed in this way explicitly, the TAC’s position was that s 126B is applicable to a situation like the present. This must be because the TAC asserts that both this proceeding and the claimant’s 2018 proceeding are proceedings ‘under, or in accordance with’ the TAA.
As a preliminary matter, the present proceeding is clearly a claim brought under or in accordance with the TAA: the cause of action arises under s 104 of the TAA.
There also appears to be an argument, which presumably the TAC relies on, that the claimant’s 2018 proceeding also satisfied this requirement. The writ and statement of claim from the claimant’s 2018 proceeding are in evidence, and disclose a fairly typical common law claim alleging negligence by the defendants. The TAA is not relied upon, nor indeed is it even mentioned, in the statement of claim. On a plain reading of s 126B and on the basis of the court documents available, I think it would be difficult to conclude that the claimant’s proceeding was brought ‘under’ the TAA in those circumstances. However, there would appear to be a reasonable argument that the claimant’s proceeding was brought ‘in accordance with’ the TAA, given the restrictions on actions for damages in s 93(1) of the TAA and the requirement for a claimant to establish a serious injury. The evidence in the application establishes that the claimant’s proceeding was settled for what Mr Cook described as ‘a considerable sum’, so it appears most likely that the claimant must have satisfied the requirements of s 93 in order for that outcome to have been reached, though I note that formally this does not appear to have been definitively established on the evidence available in this application, and the parties’ submissions did not address the issue.[48] Despite this, I will proceed on the basis that the 2018 proceeding can be characterised as a claim brought ‘in accordance with’ the TAA.
[48]First Cook Affidavit (n 1) 3, [16].
Having reached that point, it is necessary to consider how s 126B should be interpreted.
Although I am conscious that the parties’ submissions did not descend to anywhere near this level of detail, there appears to be some cause for concern that the interpretation of s 126B advanced by the TAC may risk going well beyond the legislative intent as identified in Mr Cook’s affidavit material. As noted above, if the only constraints on the section are that the two proceedings or claims arise ‘under, or in accordance with’ the TAA, the section arguably has effects further than the identified purpose of removing the Harman obligation as an obstacle for the TAC, and opens up a wider range of documents for use in proceedings connected with the TAA, as well as casting doubt on the operation of orders that the Court may make in proceedings to restrict the disclosure or use of certain material. Such broader potential effects do not appear to have been contemplated in the parliamentary material exhibited to Mr Cook’s second affidavit.
As noted above, the Court should construe the provision to be consistent with the language and purpose of the statute as a whole, to give effect to the meaning intended by the legislature, seeking to give meaning to every word used without seeking to read additional words into the provision.
If it is correct that the wording of s 126B does travel some way beyond the apparent legislative intention, then there would appear to be different ways to interpret the provision in a way that may better reflect that intention and the context and purpose of the TAA. One is to assume, given its context, that it is intended to operate only in relation to the TAC and/or only in relation to the Harman obligation. This would arguably be consistent with surrounding provisions that preserve, for instance, the TAC’s ability to assert legal professional privilege, as well as the Act’s secrecy provisions. This interpretation would, however, be a relatively material departure from the text of the provision itself, requiring the insertion of two constraints that do not appear in the wording of the provision. It would also appear to be less likely to achieve the stated intention of the section if it did not allow the TAC access to documents from a common law damages claim that are relevant to the exercise of its statutory functions in other proceedings.
An alternative way to approach the provision, which on balance I prefer as being potentially closer to its text while still reflecting the stated purpose underpinning the provision, is to interpret the first of the two uses of ‘under, or in accordance with, this Act’ as qualifying the production or service of a document or acquisition of information that is referred to in the section, rather than qualifying the kind of proceeding or claim in which the production/service/acquisition occurred.
That is, material produced/served/acquired under or in accordance with the TAA in respect of a claim may be used in and for the purposes of any other proceeding or claim under or in accordance with of the Act.
This would seem to have the natural effect of focusing the operation of the section on the work that the TAC is required to undertake, given its function in administering the scheme provided by the TAA, and avoids risks of undesirable side-effects affecting parties and proceedings to which the TAC does not have a connection. It also would more directly reflect the apparent legislative intention, freeing for use material that is exchanged (or information that is acquired) as required or envisioned by the TAA, without giving rise to a more fundamental alteration of the broader range of ways in which documents or information arising in litigation might be protected from use. It would reflect the language used in the initial summary of the section contained within the Explanatory Memorandum to the relevant bill.
There are clearly meaningful arguments against this approach as well. For one matter, the two parallel uses of the phrase ‘proceeding or claim for compensation, damages, indemnity or other payment under, or in accordance with, this Act’ within the section might ordinarily indicate that the two occurrences were intended to operate and be interpreted in the same way within the section. Further, it could be said that if the legislature intended ‘under, or in accordance with’ to modify the act of serving/producing/acquiring material rather than the claim or proceeding in which this occurred, it might have phrased the section differently to make this clearer, for instance ‘a document produced or served or information acquired under, or in accordance with, this Act, in respect of a proceeding or claim for compensation, damages, indemnity or other payment…’
For another, this interpretation might be said to be unduly restrictive, given the clear intent in the provision that it should apply despite essentially all other rules and provisions to the contrary, and the supporting material evincing a clear intention to allow the TAC to use documents affected by the Harman obligation.[49]
[49]See, e.g., Davern v Messel (1984) 155 CLR 21, [9] (Gibbs CJ).
A further interpretation might be to assume based on the scope of the intent evident in at least the Statement of Compatibility, that the final use of ‘in accordance with’ should be ignored, and that the use of ‘Despite anything to the contrary in any Act … or at common law’ is intended to be confined to anything from those sources that gives rise to a Harman-like obligation. This would mean that documents served or produced in a claim or proceeding under or in accordance with the TAA may be used in another proceeding under the TAA, despite any Harman obligations that may exist in relation to them. This has the benefit of removing any potential applications of the section that go beyond what appears to have been envisaged, by permitting the use of documents (and implicitly information arising from such documents) in other proceedings arising under the TAA, but not extending, for example, to applying to two common law damages proceedings where s 93 was satisfied. It has the disadvantage, however, of assuming that several words in the section are unintentional or have no work to do, contrary to the authorities. Further, it assumes that the meaning of what appears to be a sweeping statement of an intent to abrogate a range of protections and restrictions (in the ‘despite anything to the contrary…’ phrase) is something other than what those words literally state, though noting that this may be permissible if it is clear that the legislative intention is different to the language used.
The situation is therefore somewhat unclear. On balance, in my view the second interpretation above comes the closest to reflecting the purpose for the introduction of the section, without allowing for risks of extreme or absurd and unintended consequences. The breadth of the language used in s 126B is explicable as providing a clear statement of the legislature’s intention to remove the operation of the fundamental principle represented by the Harman obligation but, given the purpose and context of the Act and the supporting material in evidence in this application, need not be read as an intention to go further than what was necessary to give effect to that purpose.
An interpretation requiring that the act of serving, producing or acquiring material occur under or in accordance with the TAA would allow the TAC to use information it has or obtains across proceedings or disputes in which it is involved (for example, facilitating the use of documents obtained in a serious injury application in other disputes around that claim, or in a proceeding under s 107 of the TAA or proceedings under Part 8 of the TAA).
However, if this is the manner in which the section is to be interpreted, then this is also the point at which the TAC’s argument would seem to run into some difficulty. No provisions of the TAA were identified by the parties (and none are immediately apparent) that would have either mandated or facilitated the exchange of information between the parties to the claimant’s 2018 proceeding.[50] Presumably, given the manner in which the claim was set out in the writ and statement of claim annexed to Mr Cook’s first affidavit, Order 29 of the Rules and the orders made by the Court in that proceeding would have governed the discovery of photographs and medical records, and likewise for Order 33 in respect of medical examinations organised by the defendants, and Order 30 in respect of interrogatories. On the evidence available, I am unable to see how it could be said that the disclosure of the material now sought by the TAC occurred ‘under, or in accordance with’ the TAA. On that view, it seems unlikely that s 126B would have any work to do in relation to this application, and the defendants’ solicitors would still therefore be bound by their implied undertaking to the Court as to the use of documents obtained under a compulsory process in the claimant’s 2018 proceeding.
[50]As opposed to, for instance, any serious injury process that was undertaken prior to the commencement of the 2018 proceeding.
Other available interpretations, including the literal interpretation advanced by the TAC, would seem to have the effect of removing the Harman obligation as an obstacle to the use of the documents sought by the TAC in this proceeding. I acknowledge that there are good arguments in favour of these approaches as well.
In light of the way the application was run, the lack of any submissions engaging with the text of the section and the supporting materials annexed to Mr Cook’s second affidavit, I do not think it is wise to seek to express a concluded view about this issue in this application. Given the potential, at least, for the interpretation of the section to have significant ramifications for parties involved in litigation connected with the TAA in some way, it is far preferable that this occur in a setting informed by submissions directly engaging with the issue, and with a party acting as a contradictor.
For the purposes of the present application, although I suspect that in truth the section must have an operation at least somewhat more limited than is implied by the TAC’s position here, I will proceed on the basis that to the extent it is to be read down, it will still operate to benefit the TAC and would at least apply to remove the Harman obligation as an obstacle to production of material in a situation such as this.
However, that still does not appear to be determinative of the application. As above, the provision does not create any right for a party to access material it does not already have. Determinations as to discovery and production remain in the control of the Court.
In either case, therefore, it is necessary to assess whether the Court should exercise its discretion in the circumstances of this application to make orders sought under r 29.08(2).
E Should an order be made?
To the extent there is an argument that s 126B does not operate, although it was not framed as such, the application was in substance an application that the defendants be relieved of their Harman obligations in order that the documents may be produced and used in this proceeding. The principles that apply in relation to such an application are well established and, although the parties did not make any submissions about them specifically, I do not apprehend that they are the subject of any real uncertainty or controversy. The Court has the power to dispense with Harman obligations, however this is ordinarily not a step taken lightly and would be done only where ‘special circumstances’ are demonstrated.[51]
[51]See, e.g., Hearne v Street (2008) 235 CLR 125, [37].
In Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (‘Springfield Nominees’),[52] Wilcox J described the approach to be taken to the ‘special circumstances’ test as follows:
For “special circumstances” to exist it is enough that there is a special feature of the case which affords a reason for modifying or releasing the undertaking and is not usually present. The matter then becomes one of the proper exercise of the Court's discretion, many factors being relevant. It is neither possible nor desirable to propound an exhaustive list of those factors. But plainly they include the nature of the document, the circumstances under which it came into existence, the attitude of the author of the document and any prejudice the author may sustain, whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain, the nature of the information in the document (in particular whether it contains personal data or commercially sensitive information), the circumstances in which the document came into the hands of the applicant for leave and, perhaps most important of all, the likely contribution of the document to achieving justice in the second proceeding.[53]
[52](1992) 38 FCR 217.
[53]Ibid [26].
In Ambridge Investments Pty Ltd v Baker & Ors (No 3),[54] Vickery J preferred a slightly different expression of the test:
“special circumstances” may arise where there are special features (or a special feature) of the case which afford good reason for modifying or releasing the undertaking, being circumstances which are of sufficient gravity to override the private and public interest in protection of the confidentiality of a person’s private documents which are required by law to be produced to a court.
Factors beyond a strictly public interest may be present to satisfy the “special circumstances” criterion. Such factors may be circumstances of a private nature, for example where the party who produced the document in one proceeding waived any objection to it being used in another proceeding or expressly or impliedly consented to this course. Or they may be matters in relation to the character of a document, for example where the document in question was already in the public domain and where any semblance of it retaining a private character has been significantly compromised.
However, an important consideration in weighing the various factors which may enliven the discretion are also matters of a public interest character. They will include the likely contribution of the document in question to achieving justice in the second proceeding and the public interest in ensuring that all relevant material is before a court to enable it to properly discharge its function. The Victorian Charter of Human Rights by s.24(1) reinforces the common law right of a party to a fair criminal or civil trial. Denial of relevant documents could compromise the exercise of this critically important right and deny justice to an accused or a litigant. If this was to occur, the public interest in furthering the administration of justice could be compromised or negated.[55]
[54][2010] VSC 545.
[55]Ibid [33]-[35].
The parties’ submissions did not address the specific requirements applicable to an application for relief from the Harman obligation. Having said that, it is tolerably clear that the primary argument available to the parties is that the nature of the proceeding (arising under a process the legislature specifically created under s 104 of the TAA) and its close relationship to the claimant’s common law proceeding amounts to the ‘special circumstances’ required. In this regard, it might also be noted that it is common for proceedings such as the present to be prepared alongside their related common law proceedings, with identical timetables and trial dates, and orders made for materials used in one proceeding to be used in the other proceeding (essentially, the arrangement that the TAC seeks to have in place through this application).
To the extent it is necessary to do so, in case I am wrong about the interpretation and operation of s 126B above, I am satisfied that this can amount to ‘special circumstances’ for the purposes of dealing with the Harman obligation. Plainly enough, it is the basis upon which orders of this kind are commonly made in situations where a common law damages claim and a statutory indemnity/recovery claim proceed in parallel.
The ultimate question in this application then becomes whether the Court should exercise its discretion to make the orders sought. In this regard, the applicable principles are also uncontroversial, noting in particular the observations of Forrest J in Volunteer Fire Brigades Victoria v CFA at [34]:
The overriding consideration of the CPA is to ensure that the parties receive a fair trial i.e. ‘a just resolution’ to use the words of the CPA. However, a fair trial is not a perfect trial. It is, rather, the best trial that a court can provide to the parties within reason and in proportion to the issues in dispute and the court’s resources. Accordingly, demands for discovery of documents which are peripheral to the central issues cannot be entertained. The Court is obliged to focus on the central issues as best it can be determined at this point in the litigation. [56]
[56][2016] VSC 573.
On reflection I think the relevant considerations in addressing this question differ between the categories of documents sought. It is useful to deal with them in turn.
E.1 Photographs
Starting with the simplest category, I am satisfied that it is appropriate to make an order in relation to the photographs of the accident scene sought by the TAC. Such material is clearly relevant to questions of liability, and given the issues in dispute in the proceeding is unlikely to be characterised as peripheral: each defendant denies that the claimant’s accident was caused by their breach of duty,[57] and evidence as to the state of the relevant road around the time of the accident has the ability to directly affect findings as to the adequacy of the defendants’ conduct in that regard.
[57]Defence filed on behalf of the first defendant in Transport Accident Commission v Baw Baw Shire Council & Ors (S ECI 2023 05271, 19 December 2024) [22]; Defence filed on behalf of the second defendant in Transport Accident Commission v Baw Baw Shire Council & Ors (S ECI 2023 05271, 21 February 2025) [22]; Defence filed on behalf of the third defendant in Transport Accident Commission v Baw Baw Shire Council & Ors (S ECI 2023 05271, 21 July 2025) [22].
Although the evidence in the application about what might be contained within such material is scant, by its nature the category appears highly unlikely to give rise to any compelling arguments against production. No issues of confidentiality, privacy or privilege would appear likely to arise: the photographs appear to simply be records of publicly available or observable information from the time of the accident.
In all the circumstances, an order should be made for the production of (and thereby relieving the defendants of their obligations in relation to) any photographs of the accident scene.
E.2 Interrogatories and answers
Turning next to the category of interrogatories and answers served in the claimant’s proceeding, it is not immediately clear whether there are further such documents available that have not already been provided to the TAC. However, the evidence does establish that some such material has been served on the TAC by at least one party, so it is conceivable that there is more from other parties that is as yet undisclosed.
Any interrogatories that were served in the claimant’s proceeding would not appear to actually need an order of the kind sought in this application. They could hardly be said to be material obtained under a compulsory process in the claimant’s proceeding, and indeed would likely have been available to inspect pursuant to r 28.05 of the Rules. It is not clear to me why this aspect of the category is the subject of any concern in this application. However, there appears to be no harm in making any interrogatories served available in this proceeding, to the extent an order might be required for reasons that are not apparent to me.
I suspect the more substantive aspect of the category relates to any answers to interrogatories that were sworn or affirmed and then filed by the claimant. Most likely any answers would not ordinarily be available for non-parties to inspect on a court file under r 28.05 unless they were read or relied upon in open court or otherwise used in the determination of an application on the papers.[58] There is no evidence in the application as to whether this is the case, though it appears that the claimant’s proceeding resolved ahead of trial so any answers would not have become publicly available through their use at trial.
[58]See, e.g., Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘the Rules’) r 28.05(3).
The claimant was represented by lawyers in the course of her claim, and would have had the benefit of advice about responding to the interrogatories, including in relation to whether there was a basis to object to any interrogatories put to her. In the circumstances, I think it can be accepted that if answers were served in the claimant’s proceeding then there was no issue as to their relevance to the issues in dispute in that proceeding. Given issues of liability and causation are live in the present proceeding, it follows that any such answers are also likely to be relevant to this proceeding.
It might be arguable that there is some level of confidentiality or sensitivity that could attach to answers to interrogatories of the kind sought, given they would not ordinarily be available for inspection and the claimant presumably concluded her involvement in the 2018 proceeding on at least the implicit understanding that those answers were not publicly available. However, on balance, I consider that to the extent any such contrary interest might exist, it is outweighed by the likely relevance and utility of the documents to the present proceeding, and is mitigated by the fact that any answers would have been formally filed and served, and made after the claimant had an opportunity to object to any improper questions.
To the extent the claimant is likely to be called as a witness in the trial of this proceeding, it is likely that the production of the answers will also further the overarching purpose of the Civil Procedure Act2010 (Vic) by facilitating a more efficient trial, as all parties will know her likely evidence concerning some key issues rather than having to identify or establish these for the first time in the course of her evidence.
I therefore consider an order should also be made in the form the TAC seeks in respect of any interrogatories and associated answers served in the 2018 proceeding.
E.3 Medical reports
In my view, and again noting that the parties’ submissions about the specifics of each category were quite limited, the considerations arising in respect of medical reports concerning the claimant in her proceeding are quite different. This causes me to conclude that they should not yet be the subject of an order, on the evidence presently available.
Although not the test to be used when considering whether an order under r 29.08 should be made as opposed to an application for a release from the Harman obligation, the factors set out by Wilcox J above in Springfield Nominees provide a useful way of identifying a number of relevant features to bear in mind in the application.
The scope and nature of the material that might be covered by this category is not clear. However, importantly, it is apparent that it includes at least four medico-legal reports commissioned by the first defendant in the 2018 proceeding. It is not apparent whether the other defendants obtained their own reports, and what reports (if any) the claimant herself served. The contents of such material are unknown (to the Court and the TAC, presumably), as are the specialties of the experts involved, the questions asked and issues covered, and the time periods to which the material relates.
The attitude of the authors of any reports covered by this category, and indeed the claimant herself, to the further disclosure of this material is unknown.
To the extent the material presently in dispute covers reports beyond those identified by the first defendant, there is also no evidence to indicate whether such material was produced for the purposes of the 2018 litigation or whether it includes reports that pre-date the litigation or were produced in the course of the plaintiff’s treatment. That is obviously not the TAC’s fault. The point of the application is that it does not know what it does not know. However, in my view it does suggest a need for some caution.
It does not appear possible to say whether all of the material that would be covered by the category was expected to enter the public domain as a result of its connection with litigation. In that regard, it can be noted again that the 2018 proceeding settled rather than being determined at trial, and it has not been established that the material was publicly available before that.
It is clear that the information that would be expected to be contained within the documents covered by this category is medical in nature, and may therefore be accepted to be both personal and sensitive.
The reports concerned came into the hands of the defendants through the operation of the Rules. Reports commissioned by the defendants would have been governed by Order 33 of the Rules, a form of discovery requiring the plaintiff to submit to a medical examination requested by a defendant or face a risk of her claim being stayed. Reports provided by the plaintiff would presumably have been discovered as part of her medical records or else served pursuant to Order 33 or Order 44.
Pausing there, I think it can be concluded that the material sought to be produced by the TAC here is likely to be sensitive and gives rise to a recognisable interest on the part of the claimant in its confidentiality. Apart from the common understanding of the nature of such information itself,[59] ‘medical privilege’ is a form of confidentiality interest that can limit the disclosure of medical information about a person in a civil proceeding without consent in certain cases.[60] Even where that principle is not operative (for instance, in the case of medico-legal reports obtained under the Rules where the author does not provide treatment to a plaintiff), service of such material in a civil proceeding would be governed by the Rules, as well as in some circumstances the Harman obligation.
[59]See, eg, Privacy Act 1988 (Cth) s 6 (definition of ‘sensitive information’).
[60]See, eg, Evidence (Miscellaneous Provisions) Act 1958 s 28(2); Elliott v Tippett (2008) 20 VR 195.
Any confidentiality or privilege attaching to such material might of course be lost or waived by a party’s conduct (as the TAC’s correspondence referred to), and such a waiver might be express or implied. The TAC’s position at its highest appears to be that in addition to the TAA contemplating that it should have access to such material to fulfil its functions, as above, any privilege or confidentiality that the claimant maintained could not be sustained in circumstances where she initiated her common law claim and sought to obtain benefits under the TAA from the TAC. It would presumably be said that by taking the actions she did in relation to her pursuing her claim and benefits, there has been a waiver in relation to medical reports served by the claimant.
On balance, I find it difficult to conclude definitively that a waiver or other loss of confidentiality arises. I would be reluctant to conclude without better evidence that simply by commencing and pursuing her 2018 proceeding, the plaintiff should be taken as having accepted that any confidentiality that inhered in documents used in that proceeding concerning her medical information was lost (or more accurately that she had acted in a manner inconsistent with the maintenance of that confidentiality). In particular, this arises because the present proceeding was not run at the same time as the 2018 claim and there is no evidence to suggest the claimant was aware that it would be commenced. In this regard, I think the TAC’s position that it is ‘neither appropriate nor necessary to obtain a third parties permission to use documents over which they have already waived privilege [sic]’ is somewhat problematic when it comes to making a determination in the present application, for a number of reasons.
First, the claimant is hardly a distant, uninterested party unrelated to the documents in question. The documents by definition contain medical information specifically about her, the confidentiality of which she likely has a direct interest in.
Second, at least some of the medical information in question was obtained via a compulsory process under Order 33. It was intrusive, and although such a process is understood to be justifiable in personal injury litigation in order to facilitate the discovery of evidence of a claimant’s injuries, functioning or status, it should be recognised that the plaintiff had essentially no choice but to comply with a reasonable request to submit to a medical examination in order to be able to pursue her claim for damages and avoid her claim being stayed.[61]
[61]See The Rules (n 56) r 33.04(2).
Third, not all of the information was served by the claimant (assuming any was): the medico-legal reports were obtained by the first defendant, at the least. Questions of privilege and waiver would not arise in that setting.
Fourth, as above, even for medical reports provided by the claimant, it does not follow that all confidentiality in the documents (particularly in relation to their use outside the 2018 proceeding) was lost at the moment a report was served. Such material would not have been available to non-parties for inspection under r 28.05 unless and until it was read or relied on, and there is no evidence in this application to suggest that such material ever attained that status, or that the claimant should be taken to have accepted that this material would become more widely available. A person in the claimant’s position may well have served material in her claim reliant, at least implicitly, on the operation of the Harman obligation to prevent the use and disclosure of that material beyond the extent necessary for the conduct of the proceeding at hand. It is also conceivable that a factor motivating a party to settle a claim ahead of trial is a desire to avoid the publicity of a trial, including the public disclosure of sensitive evidence. Further, there is no evidence in this proceeding of any indication that the claimant was aware that the TAC would be pursuing an indemnity claim and seeking to make use of the claimant’s information in it.[62] On the contrary, the claimant or her advisers may well have noted the absence of a proceeding being run in parallel by the TAC. I do not consider it has been established that an implied waiver can be found to exist here.
[62]The situation can be contrasted with the reasonably common occurrence of the two claims proceeding in parallel, where the parties to each claim will be aware of each other through joint appearances at directions hearings, and where it is not uncommon for the lawyers for a plaintiff in a common law damages proceeding to also sign consent minutes in a related recovery proceeding to which they are not a party in order to provide for releases from Harman obligations.
Fifth, it cannot be excluded that in addition to relevant information, medico-legal material of the kind sought here would also include other information about the claimant’s life, status and functioning that are not relevant to the more limited issues in dispute between the parties to this proceeding. As but one example, the writ annexed to Mr Cook’s first affidavit identifies that in the 2018 proceeding the claimant made a claim in respect of psychological conditions she suffered. It is likely that medico-legal material or reports included in this category might well address such issues in detail, when such material appears to be of more peripheral relevance to the issues that are live between the TAC and the defendants in this proceeding.
Sixth, and significantly, personal medical information is inherently sensitive and is gives rise to a legitimate interest in its privacy.
In those circumstances, knowledge of the attitude of the claimant to the disclosure and use of the medical reports in question in this proceeding would be a significant feature. Caution should be exercised where that knowledge is not available.
There are therefore a number of factors pulling in different directions in respect of the ‘medical reports’ category of documents:
(a)Some aspects of the medical reports are likely to be relevant to issues between the parties, particularly in relation to questions of causation concerning the claimant’s spinal injuries as well as the connection between the benefits paid by the TAC to the claimant and any injuries caused by negligence on the part of the defendants.
(b)That said, I am not satisfied on the present evidence that such medical material is necessarily critical to the resolution of the current proceeding. It appears highly unlikely that such material is the only medical information available to the parties. The TAC clearly paid benefits to the claimant and must have had a basis to be satisfied about the appropriateness of doing so and either it was satisfied that the claimant suffered a serious injury for the purposes of s 93 of the TAA or it participated in an application under the Act concerning that subject (and given its reliance on s 126B there would seem to be nothing stopping the TAC from using such material here). Further, the first defendant has been able to positively plead that the claimant’s spinal injuries arose from a subsequent motorcycle accident, so clearly has available to it information about this that is not affected by the Harman obligation to provide a basis for this aspect of the pleading, which can be used in this proceeding. Noting also the potential for the amounts paid by the TAC to not actually be in dispute between the parties by the time the proceeding reaches trial, as noted in the hearing (although as above those matters are formally not admitted at the moment), on balance I think the material is relevant, though likely not critical.
(c)There are also likely to be many aspects of the reports that have little to no direct relevance to the contentious issues in this proceeding, being a claim for an indemnity for specific amounts paid (or to be paid). The reports, by their nature, will traverse a wider range of information relevant to assessing loss and damage in the claimant’s original claim. It has not been established that this information was used in assessing the benefits paid by the TAC that are sought to be recovered in this proceeding.
(d)By their nature, the reports are highly likely to be sensitive.
(e)The present claim arises under s 104 of the TAA and there is a clear legislative intention to facilitate the work of the TAC in administering the transport accident compensation scheme, including recovering the funds claimed in this proceeding where it is permitted to.
(f)The timing of the present claim is somewhat unusual, occurring years after the claimant’s proceeding resolved, and there does not appear to be anything to suggest that the claimant should be taken to have consented to action being taken in respect of her medical information in a proceeding to which she was not a party after so long.
(g)The evidence in this application as to what the medical reports are, and what they contain, is very slight. Most of the matters discussed above are derived from general experience of the kinds of evidence served and relied upon in personal injury litigation. It is entirely possible that there could be specific material in the reports sought by the TAC that either assumes a particular sensitivity in general, or which has particular significance to the claimant, which cannot be identified and factored into the determination of this application without knowledge of the claimant’s position.
Taking those factors as a whole, and noting the significance of the Harman obligation, if I am wrong about s 126B above, I would not be presently satisfied that the relationship between this proceeding and the 2018 proceeding is sufficient of itself to create the special circumstances required to provide relief from the Harman obligation in respect of the medical reports sought. In my assessment, what would be required is the relationship between the proceedings coupled with the claimant’s express or implied consent to the disclosure, or evidence as to the inability of the TAC to establish this latter point.
For the same reasons, I consider that where the Court is being asked to exercise a discretion to make discovery orders concerning sensitive medical information about a non-party, where the consequence of the orders sought would be the further dissemination of that material and where there is no evidence that the individual concerned knows this is happening, by far the preferable course where possible is to ensure that the individual is put on notice of the application and afforded an opportunity to seek to be heard about it should they wish to do so. Having the application proceed without the claimant being afforded at least the opportunity to have her position considered leaves matters too uncertain to safely make the orders sought here.
To be abundantly clear in relation to the submission made at the hearing by the TAC, this is not to suggest that the claimant has a right to ‘veto’ any orders that a party in a proceeding such as the present might seek. It is, however, to suggest that a person in the position of the claimant ought to be informed of the manner in which sensitive and private medical information is to be used, and to allow them an opportunity to seek to be heard about that point if appropriate.[63] There does not appear to have been any explanation available in this application as to why this could not occur, and it does not appear to me to be inconsistent with the scheme established by the TAA.
[63]In relation to the TAC’s reliance on s 126B in this regard, it may be relevant to note that the operation of the Charter of Human Rights and Responsibilities Act 2006 (Vic) is the one thing that is explicitly not overridden by the provision.
In the present circumstances, I think the problem with the TAC’s position in the application is that it appears to have made no real efforts to bring the application to the claimant’s attention and obtain her consent, or at least her views in relation to it, since October 2024. Mr Cook’s affidavit material identifies one email sent to the claimant’s former solicitors at that time, to which he received no response. There is no evidence as to any further attempts to ascertain the claimant’s views, and in fact Mr Cook’s evidence suggests that he abandoned any attempt to obtain material from the claimant or her representatives in favour of pursuing the present requests to the defendants. There is no evidence indicating that the TAC could not bring the application to the claimant’s attention.
There is no evidence in this application as to whether the TAC has an ongoing relationship with the claimant,[64] or how easy or difficult it would be for the TAC to communicate with her. I note the statement of claim includes a statement that ‘Payments of compensation continue to be made to and on behalf of the claimant’,[65] and the prayer for relief includes a claim for an indemnity in respect of future payments the TAC may make to her, although the pleading was filed in October 2024 and there is no evidence of what relationship may have existed since that time.[66] Moreover it is conceivable that the TAC might seek to call the claimant to give evidence at trial in this proceeding, however there is no evidence as to whether that may or may not occur. In the circumstances, there is no basis for me to draw any conclusions about how easy or difficult it might have been for the TAC to make contact with the claimant or her advisers.
[64]Noting that based on the Statement of Compatibility exhibited to Mr Cook’s affidavit, the existence of an ongoing relationship between the TAC and claimants appears to have been one of the reasons relied upon to justify the removal of protections against the use of documents in s 127B.
[65]Statement of Claim (n 29) [27].
[66]The TAC also filed further and better particulars of compensation paid to the claimant on 16 May 2025 with a total that is approximately $260 higher than the total of the equivalent particulars in the statement of claim. It appears that this change arises from relatively small differences in the amounts categorised as “medical – general” and “other”, however it is not apparent whether this is an indication that the TAC has made further payments in that amount to the claimant since October 2024 or whether the May 2025 particulars simply reflect a more precise and updated formulation of the benefits paid prior to that date.
What is established by the evidence, however, is that there was no real attempt made to put the claimant on notice. After one email in October 2024 email that was not responded to, the TAC made no further efforts that have been identified in this application to inform the plaintiff of the application or ascertain her position.
In that setting, I consider that the defendants’ caution was well founded, and I do not consider that the circumstances are such that an order should yet be made in relation to the medical reports sought on the basis of the material presently available. If the TAC wishes to persist with its approach, I suggest that it should seek to put the claimant on notice of the application (regardless of whether the claimant choses to respond or take a position in relation to it), or otherwise adduce some evidence to the effect that it has no realistic way to do so. In either situation, I anticipate the application would be able to proceed much differently and the present difficulty in making the order sought concerning the medical reports would likely not arise. Liberty to apply will be reserved to the TAC in respect of this issue should it wish to reagitate it with some improved evidence in support.
F Conclusion
For the reasons set out above, I will make an order requiring production of the categories of documents sought by the TAC in respect of photographs of the accident scene and any interrogatories and answers served in the claimant’s 2018 proceeding. I will not make any order in relation to expert liability reports as the available evidence does not disclose any grounds for believing that such material exists. As noted above, if an order is sought in relation to the medical reports category, the TAC should seek this armed with better evidence concerning the claimant.
The TAC has been partially successful in the application, however equally I note that it was not really opposed by any party, but rather proceeded to a hearing given the nature of the relief being sought concerning the Harman obligation. I can appreciate that given the nature of the obligations owed by practitioners in this regard, solicitors for the defendants acting prudently might well have sought to have the certainty of having an order in place requiring the production of the material sought by the TAC here, such that an application of some kind might have been required in any event.
In that setting, I express a provisional view that the appropriate order as to the costs of the application is that they be costs in the proceeding. If any party wishes to make submissions regarding any other order that they contend should be made, I will allow a period of 14 days for the parties to file any brief submissions on this point, limited to 2 A4 pages, after which time the issue will be determined on the papers.
SCHEDULE OF PARTIES
| S ECI 2023 05271 | |
| BETWEEN: | |
| TRANSPORT ACCIDENT COMMISSION | Plaintiff |
| - v - | |
| BAW BAW SHIRE COUNCIL | First Defendant |
| CENTRAL GIPPSLAND REGION WATER CORPORATION | Second Defendant |
| JACO TRENCHING & BORING PTY LTD (ACN 109 534 750 | Third Defendant |
| D J RUSSELL & ASSOCIATES PTY LTD (T/AS R D T WATER & WASTEWATER) | Fourth Defendant |
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