Vallas v Comcare
[2014] AATA 669
•5 September 2014
[2014] AATA 669
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/4132
Re
Christopher Vallas
APPLICANT
And
Comcare
RESPONDENT
INTERLOCUTORY DECISION
Tribunal RM Creyke Senior Member
Date of decision
Date of written reasons
5 September 2014
12 September 2014
Place Canberra The respondent’s application for a release from implied undertaking with respect to the report of Dr O’Sullivan dated 7 January 2014 is not granted.
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RM Creyke Senior Member
PRACTICE AND PROCEDURE – Request for release from implied undertaking of medical report – claim for permanent impairment and non-economic loss arising from accepted condition – whether report was produced under compulsion – no clear indication of intention to cease liability – whether special circumstances apply to waive implied undertaking – request not granted.
Administrative Appeals Tribunal Act 1975 (Cth) s 33
Otter Gold Mines Ltd v DP McDonald (1997) 48 ALD 222
Re Environment Images Pty Ltd and Australian Trade Commission (1996) 45 ALD 674
Re Von Stieglitz and Comcare (2012) 127 ALD 633
Springfield Nominees v Bridgelands (1992) 38 FCR 217Telstra Corporation Pty Ltd v Hannaford (2006) 151 FCR 253
REASONS FOR INTERLOCUTORY DECISION
RM Creyke Senior Member
12 September 2014
Mr Christopher Vallas has accepted injuries to the lumbar spine and brain for which he sought compensation for permanent impairment.
On 6 June 2013, his application was rejected, a decision upheld on reconsideration on 26 July 2013.
On 19 August 2013 Mr Vallas sought further review by the Tribunal
In the course of the proceedings, a direction was issued to Mr Vallas to provide a report by Dr Dudley O’Sullivan, neurologist. That report, dated 7 January 2014, was provided to the Tribunal and Comcare on 26 February 2014. The report was adverse to Mr Vallas’s claim.
That report was provided following a direction and accordingly is a document produced under a compulsive order of the Tribunal.
In an email to the Tribunal on 5 March 2014, Comcare contended that despite the direction, as the document could have been subject to legal professional privilege but privilege was not sought, the document was not produced under compulsion and was therefore ‘not subject to the Tribunal’s implied undertaking’.
The email also noted that:
In the event that the Tribunal considers the report is subject to the implied undertaking, we hereby request the Tribunal’s leave to be released from the implied undertaking over this report. The reason why we seek the release is that the report is highly relevant to the ongoing administration of the Applicant’s claim for compensation, so we propose providing the report to the Applicant’s Comcare Claims Services Officer.
On 6 March 2014, Mr Vallas indicated he disagreed with Comcare’s contention and maintained that the undertaking applied, and that the report could only be used for the purposes of the proceedings before the Tribunal.
On 13 March 2014 a directions hearing was held to discuss the issues raised. The Tribunal directed that the report remained subject to the implied undertaking.
On 31 March 2014, Comcare wrote to the Tribunal and said:
Our request was based on the following two arguments:
·The Tribunal’s direction for the Applicant to produce a document was not a compulsory direction because the Applicant had the option not to produce the document by invoking legal professional privilege.
·The use of Dr O’Sullivan’s report by the CSO [Comcare’s Claims Services Officer] for claims management purposes is directly connected with, and not collateral to, the issue in the current proceedings before the Tribunal, and there the Tribunal should grant the release.
The first argument was addressed by the Tribunal during the directions hearing, but our recollections are that the second argument was not addressed, or not fully canvassed, during the directions hearing.
We therefore request either that another directions hearing be listed to address Comcare’s second argument or, if the Tribunal considers that it did address the second argument during the previous directions hearing, we request the Tribunal to provide written reasons for its decision on 14 March 2014 to refuse Comcare’s request for Dr O’Sullivan’s report to be released from the implied undertaking.
On 17 April 2014, Comcare made further submissions as follows:
·The purpose for which Dr O’Sullivan’s report was obtained (by the Applicant) was to facilitate the Tribunal’s adjudication of the Applicant’s claims for compensation for permanent impairment and non-economic loss under sections 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 arising out of two alleged injuries: brain trauma and a back injury.
·The issue of permanent impairment permits the Tribunal to consider whether the Applicant actually suffers the claimed injuries at all (in essence, a revisiting of the original acceptance of liability under section 14 of the Act: see Power v Comcare [1998] FCA 1783, Comcare v Hill (1999) 56 ALD 87, Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253).
·The undertaking does not operate to preclude Comcare’s use of the report for the purposes of revisiting whether the original acceptance of liability was correct or whether the Applicant continues to suffer any previously-accepted injury. Those purposes are closely connected to issues arising in the Tribunal proceedings.
Comcare also submitted that there was:
… a strong public interest in Comcare making informed decisions about compensation entitlements based on the best available evidence. That public interest will be best met if Comcare is permitted to take into account Dr O’Sullivan’s report in the administration of the Applicant’s claim for compensation.
The directions hearing scheduled for 29 April 2014 concluded that no further decision would be made pending receipt of another medical report. The Tribunal decided on that course in the event that the subsequent medical report would help resolve the matter. Comcare indicated that no decision had been made that liability would cease for Mr Vallas’s accepted condition.
Following receipt of the outstanding medical report a further directions hearing was held on 21 August 2014. A direction was issued requiring Mr Vallas to inform the Tribunal whether he would agree to the release to Comcare of the report of Dr O’Sullivan if the costs of its production were provided by Comcare, and whether he sought a confidentiality order over the report of Dr O’Sullivan.
On 26 August 2014, Mr Vallas maintained his objection to the release of the document even if Comcare were to pay for its production.
At the telephone directions hearing on 21 August 2014, Comcare was asked to identify the ‘special circumstances’ that applied to the release of Dr O’Sullivan’s report in terms of the well-established principles in Springfield Nominees v Bridgelands (1992) 38 FCR 217. It was unable to do so to the Tribunal’s satisfaction.
Comcare contended in an email dated 25 August 2014, that there was no need for it to identify ‘special circumstances’ as its proposed use of Dr O’Sullivan’s report was not collateral to the purpose for which the report was provided to the Tribunal. That argument had been resisted by Mr Vallas at the various telephone directions hearings on the ground that the purpose of obtaining the report was for a claim for permanent impairment and non-economic loss. Accordingly on 5 September 2014 the Tribunal exercised its discretion and formally denied the request to waive the implied obligation of confidentiality relating to Dr O’Sullivan’s report.
On 5 September 2014, Comcare requested written reasons for the direction.
Consideration
The Tribunal’s Practice Direction relating to Release from the Implied Undertaking states as relevant:
2. Application of the implied undertaking.
2.1 The implied undertaking arises in relation to any document provided to the Tribunal under compulsion in a proceeding, including: … ‘documents lodged pursuant to a direction given by the Tribunal (for example expert reports or witness statements)’.
2.2 A party that obtains a document provided under compulsion in a proceeding or a person to whom the party gives such a document must not use the document for any purpose other than that for which it was given unless: … the Tribunal gives the party leave to use the document for another purpose’.
The principal contention in the submission by Comcare on 25 August 2014 was that the intended purpose underlying the request that the implied undertaking be waived was not collateral to the purpose of the initial claim by Mr Vallas for compensation for permanent impairment and non-economic loss under sections 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act).
On 5 March 2014 Comcare claimed first that the document was not subject to the implied undertaking as it was not produced under compulsion; the report could have been subject to legal professional privilege, but this was not sought by Mr Vallas. In addition, it was asserted that the document was relevant to ‘‘the ongoing administration of the applicant’s claim for compensation’ by a Comcare CSO.
Dr O’Sullivan’s report was a report of an expert and was provided to the Tribunal and to Comcare under compulsion, namely, a direction by the Tribunal. Accordingly prima facie the implied undertaking applies and the first of these arguments was rejected and any waiver of that undertaking is at the discretion of the Tribunal.
The second argument raised by Comcare in its email of 5 March 2014 was that the report was ‘relevant to the ongoing administration of the applicant’s claim for compensation’ and it was proposed to provide the report to Mr Vallas’s ‘Comcare Claims Services Officer’. No explanation was provided to the Tribunal as to what was meant by ‘ongoing administration of the applicant’s claim for compensation’. The Tribunal inferred that Mr Vallas may have made an application for another condition which was under consideration. That would not have been a purpose directly relevant to the purpose for which the report had been provided. In any event, no such application had reached the Tribunal. The Tribunal, accordingly, indicated it would not waive the implied undertaking.
On 31 March 2014 Comcare objected to the rejection of its submission on the basis that it had raised two arguments before the Tribunal and the second of these arguments had not been addressed, namely that ‘The use of Dr O’Sullivan’s report by the CSO for claims management purposes is directly connected with, and not collateral to, the issue in the current proceedings before the Tribunal’.
Again, the reference was ‘for claims management purposes’ but no explanation was provided as to what was encompassed by that expression, nor was an explanation provided as to how the ‘claims management’ was ‘directly connected with’ the application for permanent impairment and non-economic loss currently before the Tribunal.
The Tribunal had no other application relating to Mr Vallas before it. The reviewable decision, in its rejection of the application, referred only to the reason that it was because the assessment of impairment did not reach the minimum level of ten percent. These were the issues before the Tribunal and were those for which the report was provided. The Tribunal was satisfied that whatever were the purposes envisaged by the expression ‘ongoing administration of the applicant’s claim’ as used in the submissions on 5 March 2014 and 31 March 2014, they were on their face and on the evidence before it, not directly relevant to the purpose for which the report had been provided.
On 17 April 2014 Comcare, in a further submission, agreed that the purpose for which the report of Dr O’Sullivan had been obtained had been for a claim for compensation for permanent impairment and non-economic loss. However, in its submission Comcare also admitted for the first time that it was contemplating ceasing liability for Mr Vallas’s condition under section 14 of the Act, as it is entitled to do.[1]
[1] Telstra Corporation Pty Ltd v Hannaford (2006) 151 FCR 253.
This was the first occasion on which the Tribunal became aware that this might be a possibility. At the same time, Comcare’s submission did not state that any decision had been made to that effect and this was confirmed in the telephone directions hearing on 29 April 2014. There are no statements of facts, issues and contentions in which that argument is raised, and to date there is no written indication, apart from the suggestion in the email of 17 April 2014, that a cessation of liability is intended.
Had Comcare provided that clear indication, or should it do so, the complexion of the matter before the Tribunal would change. The report would then be a matter which is directly relevant to the purpose of the current proceedings and the implied undertaking would not apply. In those circumstances there would be no need to apply for the waiver and an application could be made to the Tribunal to rescind the order.
The submissions by Comcare, however, have been addressed to the issue of waiver of the implied undertaking. Comcare’s submission on 17 April 2014, raised arguments based on the principles in Springfield Nomineesv Bridgelands (1992) 38 FCR 217, the leading case relating to waiver of the implied undertaking, and was supported by a lengthy examination of other implied undertaking cases. The principles relating to the ‘special circumstances’ in which the implied undertaking may be waived were set out by Wilcox J 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. …[P]lainly 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 …, 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 in achieving justice in the second proceeding. (at 225)
It has been accepted that these principles apply to the Tribunal.[2] The Tribunal inferred from these arguments that Comcare was still seeking the waiver.
[2] Re Environment Images Pty Ltd and Australian Trade Commission (1996) 45 ALD 674; Otter Gold Mines Ltd v DP McDonald (1997) 48 ALD 222; Re Von Stieglitz and Comcare (2012) 127 ALD 633 at 637.
Accordingly at the telephone direction hearing on 21 August 2014, the Tribunal asked for submissions by Comcare based on the principles in Springfield Nominees. As mentioned earlier the Tribunal was not satisfied with the responses provided.
Following that directions hearing, and applying those principles, the Tribunal was satisfied that the report was provided only for the purpose of a decision concerning permanent impairment and non-economic loss, not whether liability should cease; Mr Vallas has repeatedly opposed such a waiver, understandably given that the report is prejudicial to his application; and the document was provided in response to a direction from the Tribunal and only obtained by Comcare on that basis.
Although there may be a general public interest in Comcare making its decisions on the best information available, that consideration was not sufficient in this instance, to outweigh the factors listed. Should Comcare proceed to argue in the current matter that liability should cease, it may choose to obtain further evidence to support that claim. In that event, Mr Vallas may also wish to take that course as well. However, at this point the current proceedings, such a possibility is only a hypothesis.
Accordingly, on 5 September 2014, the Tribunal rejected the application to waive the implied confidentiality.
I certify that the preceding 35 (thirty-five) paragraphs are a true copy of the reasons for the decision herein of RM Creyke Senior Member ................................[sgd]........................................
Associate
Dated 12 September 2014
Dates of hearing 13 March 2014; 29 April 2014; 21 August2014 Advocate for the Applicant Nigel Gabbedy Solicitors for the Applicant Pappas, J. - Attorney Advocate for the Respondent Andrew Schofield Solicitors for the Respondent SRC Legal, Comcare
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