Walsh and Comcare (Compensation)

The Administrative Appeals Tribunal considered a dispute between an applicant and Comcare concerning the use of medical reports. The applicant had sustained a primary right foot injury and subsequently sought to have several complications arising from this injury recognised or reclassified according to the International Classification of Diseases and Injuries. Comcare requested to be released from an implied undertaking in relation to medical reports obtained during the proceedings, arguing these reports would assist in considering the applicant's request regarding the complications. The applicant objected to this release, asserting that the original purpose of obtaining the reports was solely for assessing his whole person impairment, and that using them for claims management or classification purposes would be a collateral or ulterior use.

The legal issue before the Tribunal was whether Comcare required a release from the implied undertaking to use the medical reports of Dr Journeaux for the purpose of claims management, specifically in relation to the applicant's request for classification of complications arising from his primary right foot injury. The applicant argued that this use was outside the original purpose for which the reports were provided, which was limited to assessing whole person impairment. The Tribunal was required to determine if the proposed use constituted a collateral or ulterior purpose, thereby necessitating a release from the implied undertaking.

The Tribunal applied the principle of implied undertaking, as established in High Court decisions such as *Esso Australia Resources Ltd v Plowman* and *Hearne v Street*. This principle dictates that a party obtaining documents or information for a specific litigation purpose cannot use them for a different purpose without leave of the court. The Tribunal noted that the implied undertaking applies to documents obtained during proceedings. However, it found that the report dated 17 August 2020 was produced prior to the commencement of the Tribunal proceedings and therefore the implied undertaking did not apply to it. For the reports dated 29 March 2021 and 11 October 2021, the Tribunal concluded that using them for the purpose of assessing the applicant's request to classify complications arising from his primary injury was not a collateral or ulterior purpose. Instead, it was considered a legitimate aspect of claims management related to the original purpose for which the reports were obtained.

Consequently, the Tribunal determined that Comcare did not require a release from the implied undertaking to use the reports of Dr Journeaux dated 29 March 2021 and 11 October 2021 for the purpose of assessing the applicant's request for classification of complications. The Tribunal noted that the applicant would be entitled to seek a review if he disagreed with any subsequent decision made by Comcare regarding his classification request.