Vallas v Comcare - [2014] AATA 669

[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.
...........................[sgd].............................................
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 217
Telstra 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Vallas v Comcare

Details

AGLC: Vallas v Comcare [2014] AATA 669
Case: [2014] AATA 669
Decision Date: 5 September 2014

CaseChat Overview and Summary

In the case of Vallas v Comcare, the respondent, Comcare, applied for a release from an implied undertaking concerning a medical report provided by Dr. O'Sullivan under a direction by the Tribunal. The applicant, Mr. Vallas, sought compensation for permanent impairment and non-economic loss arising from an accepted condition. Comcare's primary argument was that the document was not subject to the implied undertaking because it was not produced under compulsion and was relevant to the ongoing administration of Mr. Vallas's claim for compensation. The Tribunal, however, rejected these arguments, asserting that the report was provided under compulsion and its use for any purpose other than the initial claim required the Tribunal's leave. The Tribunal also found that Comcare had not clearly indicated its intention to cease liability, nor had it demonstrated special circumstances warranting a waiver of the implied undertaking.

The legal issues before the Tribunal included whether the report was produced under compulsion and therefore subject to the implied undertaking, and whether the intended use of the report by Comcare's Claims Services Officer was directly connected to the proceedings before the Tribunal. The Tribunal examined the arguments presented by Comcare and concluded that the report was indeed provided under compulsion and its intended use by the Claims Services Officer was not directly connected to the current proceedings. The Tribunal further noted that Comcare had not provided a clear indication of its intention to cease liability, nor had it demonstrated any special circumstances that would warrant a waiver of the implied undertaking. As such, the Tribunal found that the application for a release from the implied undertaking was not warranted.

The Tribunal ruled that Comcare's application for a release from the implied undertaking concerning Dr. O'Sullivan's report dated 7 January 2014 was not granted. This decision underscored the importance of adhering to the implied undertaking on documents provided under compulsion and the necessity for clear justification or special circumstances to warrant a waiver of such an undertaking. The Tribunal's decision reinforced the principle that documents obtained under compulsion are to be used strictly for the purposes of the proceedings unless otherwise authorised by the Tribunal.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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’.

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2013/4132
Re	Christopher Vallas
APPLICANT
And	Comcare
RESPONDENT