Warner and Comcare (Compensation)

[2017] AATA 2709

Warner and Comcare (Compensation) [2017] AATA 2709 (19 December 2017)

Division:                  GENERAL DIVISION

File number:           2016/2945

Donald Warner

APPLICANT

AndComcare

RESPONDENT

INTERLOCUTORY DECISION

Tribunal:Dr James Popple, Senior Member

Date:19 December 2017

Place:Canberra

An implied undertaking applies to Comcare in relation to the documents in issue.  Comcare’s request to be released from that implied undertaking is refused.

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James Popple, Senior Member

CATCHWORDS

COMPENSATION — Claims management — implied undertaking — document produced under summons — whether implied undertaking applies to Comcare in relation to use of document for management of claimant’s other claims — release from implied undertaking required where document to be used for purposes collateral or ulterior to purpose for which document was produced — claims management purposes collateral or ulterior where claims relate to different injuries — release required — whether release required where a copy of the document is given under Safety, Rehabilitation and Compensation Act 1988, s 58 — release required — whether Comcare should be released from undertaking.

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988, ss 14, 16, 58, 69(a), 70, 72(a)

CASES

Chin and Comcare [2017] AATA 634

Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10

Harman v Secretary of State for Home Department [1983] 1 AC 280

Hearne v Street (2008) 235 CLR 125

Otter Gold Mines Ltd v McDonald (1997) 76 FCR 467

Prudential Assurance Co Ltd v Fountain Page Ltd [1991] 1 WLR 756

REASONS FOR DECISION

Dr James Popple, Senior Member

19 December 2017

Summary

1. An orthopaedic surgeon wrote a report on a claimant, who suffered from an aggravation of a lumbar spine condition.  Some of that report was informed by, or reproduced information from, material that had been produced under summons in proceedings in the Tribunal.  The question arises whether an implied undertaking applies to Comcare in relation to that report and, if it does, whether Comcare should be released from that implied undertaking.

2. I answer the interlocutory questions:

   ·An implied undertaking applies to Comcare in relation to the material that was produced under summons and the report—to the extent that the report is informed by, or reproduces information from, that material.

   ·Comcare requires a release from that implied undertaking before it can use the material or the report in the management of the claimant’s other claims for compensation under the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act).  That is because those other claims relate to different injuries than the injury that was the subject of the proceedings in the Tribunal.  The management of those other claims is collateral or ulterior to the purpose for which the material was produced under summons.

   ·Even if Comcare were to obtain a copy of the report from the claimant, using its powers under s 58 of the SRC Act, the implied undertaking would still apply to the copy of the report obtained. Comcare should not be released from that implied undertaking.

   Background

3. Mr Donald Warner was employed by the Commonwealth Scientific…