WKVM and Comcare (Compensation) - [2020] AATA 2213

WKVM and Comcare (Compensation) [2020] AATA 2213 (15 July 2020)
Division:GENERAL DIVISION
Re:WKVM
APPLICANT

ComcareAnd
RESPONDENT

DECISION
Tribunal:The Hon. John Pascoe AC CVO, Deputy President
Date:15 July 2020
Place:Sydney

The Tribunal decides to not release Professor M from the implied undertaking
...................[sgd].....................................................
The Hon. John Pascoe AC CVO
Deputy President
Catchwords
PRACTICE AND PROCEDURE – implied undertaking – medical evidence – application for direction from Tribunal to use documents in raising a professional conduct complaint – whether medical witness should be released from the undertaking – any prejudice as a result of the information being used or disclosed for other purposes – whether the use of the document was in the “public interest”
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth)
CASES
Hearne v Street (2008) 235 CLR 125
Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217
Ashby v Slipper (No 2) (2016) 343 ALR 351
Liberty Funding Pty Ltd v Phoenix Capital Ltd (2005) 218 ALR 283
Complete Technology Pty Ltd v Toshiba (Australia Pty Ltd) (1994) 53 FCR 125
Otter Gold Mines Ltd v McDonald (1997) 147 ALR 322
Ainsworth v Hanrahan (1991) 25 NSWLR 155
Jarra Creek Central Packing Shed Pty Ltd v Amcor Ltd [2008] FCA 391
Commonwealth v Temwood Holdings Pty Ltd [2002] WASC 107
Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3
REASONS FOR DECISION
Sydney
15 July 2020
BACKGROUND

On 23 November 2012, the respondent accepted the applicant’s claim for worker’s compensation for the conditions of “post-traumatic stress disorder and major depressive disorder, recurrent episode”.
In a consent decision of the Tribunal in 2013, it was determined that from 6 December 2012 to 9 December 2013 the respondent was liable to pay compensation under section 16 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the Act’) for reasonable expenditure for the applicant’s necessary journeys to obtain treatment from Professor M and for his expenses in staying to obtain this treatment.
On 8 April 2015, the respondent issued a determination denying liability to pay compensation to the applicant under section 16 of the Act for this treatment from 14 August 2014.
On 30 June 2015, the applicant requested that the respondent reconsider this determination.
On 26 August 2015, the respondent issued a reviewable decision which varied the determination of 8 April 2015 by accepting liability for “psychological and psychiatric treatments, general practitioner consultations and pharmaceuticals”, but affirmed the determination that denied liability for travel costs for the applicant to obtain medical treatment from Professor M.
On or around 20 October 2015, the applicant applied to the Tribunal for review of this decision of 26 August 2015. This application for review is the subject of these Tribunal proceedings.
During these proceedings, numerous medical reports were provided including by Professor M, the applicant’s treating psychiatrist at the time, and Dr S, an independent medical examiner engaged by Comcare.
On 31 October 2018, the Tribunal dismissed the application for review, which came into effect on 17 September 2018 following notification of withdrawal by the applicant.
On 23 August 2019, legal representatives acting for Professor M wrote to the Tribunal seeking that Professor M be released from the implied undertaking in relation to:
(a)a report provided by Dr S dated 20 February 2018; and
(b)further documents that the NSW Health Care Complaints Commission (‘HCCC’) may request from him (including correspondence from Professor M or reports that he had prepared) which may also be subject to the implied undertaking.
This request by Professor M’s legal representatives was on the basis that he wished to:
...make a notification to the NSW Health Care Complaints Commission in relation to Dr S’s professional conduct in expressing the opinions to which he takes objection.
THE LAW AND GUIDING PRINCIPLES
The respondent has provided an excellent summary of the relevant law with which the other parties seem to agree.
When a document is obtained under compulsion or for other purposes such as the management of other claims before the Tribunal, an implied undertaking operates to prevent it from being used for another purpose. In Hearne v Street (2008) 235 CLR 125, the High Court at [96] relevantly noted:
Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence.
The implied undertaking continues after an application has been finalised as it operates for the purpose of ensuring there is no collateral use or ulterior purpose for documents disclosed under compulsion.[1]
[1] Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217, 225 (Wilcox J). Later applied in Ashby v Slipper (No 2) (2016) 343 ALR 351 at [11]; Liberty Funding Pty Ltd v Phoenix Capital Ltd (2005) 218 ALR 283 at 289-290; Complete Technology Pty Ltd v Toshiba (Australia Pty Ltd) (1994) 53 FCR 125 at 123 and Otter Gold Mines Ltd v McDonald (1997) 147 ALR 322 at 328-329.
If a party or the Tribunal wants to use a document obtained under compulsion for another purpose, leave must be sought to be released from the implied undertaking, such as in this matter before the Tribunal. Whilst there is not an exhaustive list of factors to be considered in deciding whether the Tribunal will exercise its discretion in granting leave, the following may be considered:[2]
(a)whether the information seeking to be released was prepared for the purposes of becoming evidence in the proceedings and entering the public domain;³
(b)whether the release of information would include sensitive, personal or commercial-in-confidence information;
(c)the views of the other party, and the person who produced the information, as well as whether they could suffer any prejudice as a result of the information being used or disclosed for other purposes;[3]
(d)whether the subject proceedings are still on foot and whether there is a real risk that the administration of justice of those proceedings could be compromised;
(e)the circumstances in which the information came into the hands of the party seeking release and whether there was any impropriety involved;
(f)in circumstances where information has already been used or disclosed, whether the breach of the implied undertaking was inadvertent, and a timely application was made to the court/tribunal;[4] and
(g)whether the proposed use/disclosure of information is in the ‘public interest’ of the administration of justice, for example in circumstances where this information is highly relevant to other legal proceedings.[5]
[2] Ainsworth v Hanrahan (1991) 25 NSWLR 155 at [167].
[3] Jarra Creek Central Packing Shed Pty Ltd v Amcor Ltd [2008] FCA 391 per Tamberlin J at [22].
[4] Commonwealth v Temwood Holdings Pty Ltd [2002] WASC 107 at [12].
[5] Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3 at [33].
This is not an exhaustive list of matters that the Tribunal can consider in determining whether to release a party for an implied undertaking.
Representatives for Dr S in their submissions also noted the principles applying to witness immunity, which are relevant in acting as a safeguard to prevent witnesses from being harassed or attacked for their opinion and to encourage the frank, free and honest provision of evidence.
On the basis of the submissions and evidence provided to the Tribunal, I have examined the circumstances in this case in my determination of whether the report of Dr S dated 20 February 2018 and any further documents that the HCCC may request from Dr S should be released from the implied undertaking.
DISCUSSION
I note firstly that there is no explanation provided as to how Dr S’s report came to be in possession of Professor M, who gave it to him and for what purpose it was provided. On one view, it would be appropriate to call the parties’ representatives to find out whether the report had been handed to Professor M in breach of the orders made by the Tribunal dated 22 February 2016. That is a very serious matter. The information contained in the report is sensitive personal information of the applicant. The orders of the Tribunal were clearly made after careful consideration and one would assume that both parties and their solicitors would have made a significant effort to ensure that those orders were complied with.
Professor M objects to particular sections of Dr S’s Report, namely paragraph numbers 140 to 150 and the answer of Dr S to question 8 on pages 26 and 27 of the Report. Professor M is concerned that these parts of the report impugn his professionalism and he therefore proposes to be released from the implied undertaking so as to make a complaint to the Health Care Complaints Commission (‘HCCC’), who may refer this complaint for investigation to the Medical Council of New South Wales (‘MCNSW’).
Dr S’s report was prepared as an independent expert report solely for the purposes of the proceedings before the Tribunal. As the report was not in fact considered by the Tribunal, given the applicant’s withdrawal of his application, it is even more difficult to see the adverse impact that the report purportedly could have on Professor M.
Presumably if the matter had proceeded, Professor M could have put his opinion on the views of Dr S’s report before the Tribunal, which would then be weighed against the evidence of Dr S. Dr S would no doubt have been questioned as to her evidence in cross-examination.
On the face of it, Dr S’s report appears entirely professional and made within the context of the profession in which both Dr S and Professor M practice. There appears to be no harm or adverse impact to Professor M arising from the report, but rather potential benefit to the Tribunal in reaching its decision. On the other hand, there is clearly potential harm to Dr S who gave her report on a confidential basis and specifically for the purpose of litigation.
As the High Court has found, the best interests of justice can only be served if witnesses are able to attend Courts and Tribunals and speak freely without fear of later consequences if another party does not like the opinions expressed. Difference of opinion and robust disagreement are part of the proceedings under our common law system. I also note that the report of Dr S has remained entirely confidential. There is potential damage to the justice system itself, as those who provide confidential reports would be reluctant to do so if confidentiality could not be assured.
Furthermore, there is also potential harm of the evidence being prejudiced in the ongoing Tribunal matter in which both Professor M and Dr S are expected to provide expert reports and evidence.
I have considered the views of the parties and the medical experts in these proceedings. I have considered that Professor M’s representatives note in their submissions that the applicant to the proceeding has advised that they consent to the use of the documents. Furthermore, the respondent and the former employing agency’s submissions took a relatively neutral stance in relation to Professor M’s release from the implied undertaking.
In this case, however, I can see no public interest reason why the information sought by Professor M should be released. In fact, I believe the opposite is the case, particularly because the release of such evidence could impact or hinder future litigation before Courts and Tribunals.
Submissions by representatives for Professor M state that Dr S’s Report breaches professional codes and the Administrative Appeals Tribunal Code of Conduct for Expert Witnesses. However, in my opinion, such grounds are not established. Dr S prepared her report in relation to specific circumstances and for the purposes of litigation. She specifically refers to the relevant professional standards and the fact that her report is prepared in light of those standards, as well as other professional literature. There is no evidence of any personal malice, lack of professionalism or impropriety on the part of Dr S. Dr S in her report appears to also recognise Professor M’s pre-eminence in the field.
Much of the material to which Professor M objects relates to objective standards which might be viewed as best practice. Although Professor M’s relationship is discussed in light of those standards there is, in my opinion, no attempt to impugn him professionally but rather to raise a matter which the Tribunal might properly take into account when considering his evidence.
In conclusion, there appears to be no harm to Professor M in the report provided by Dr S, but rather a potential benefit to the Tribunal in reaching its decision. Furthermore, there is potential harm for Dr S provided independent expert reports at the request of the Respondent which were specifically for the purpose of litigation.
DECISION
I have weighed up all the relevant factors above in considering whether to exercise my discretion to release Professor M from the implied undertaking.
I am of the view that the correct and preferable decision is to not release Professor M from the implied undertaking in these circumstances.

I certify that the preceding 31 (thirty-one) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President.

…………………[sgd]…………………………
Associate
Dated: 15 July 2020