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…

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 WKVM and Comcare (Compensation)

Details

AGLC: WKVM and Comcare (Compensation) [2020] AATA 2213
Case: [2020] AATA 2213
Decision Date: 15 July 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application by WKVM (the applicant) seeking to release Professor M from an implied undertaking concerning medical evidence provided by Dr S. The dispute arose from the applicant's desire to use documents, which were part of expert medical evidence prepared for Comcare (the respondent) in compensation proceedings, to raise a professional conduct complaint against Dr S. The applicant argued that the use of the documents was in the public interest.

The Tribunal was required to determine whether Professor M should be released from the implied undertaking. This involved considering whether the use of the medical documents for a professional conduct complaint would cause prejudice to Professor M or Dr S, and whether such use was in the public interest. The core legal issue was the scope and application of the implied undertaking in the context of litigation and the potential for its release in circumstances where a public interest was asserted.

In reaching its decision, the Tribunal weighed the competing interests. It found that there was no harm to Professor M from the report provided by Dr S, and indeed, it might benefit the Tribunal in reaching its decision. However, the Tribunal also considered the potential harm to Dr S, who had provided independent expert reports at the request of the respondent specifically for the purpose of litigation. After considering all relevant factors, the Deputy President concluded that it was not in the correct and preferable decision to release Professor M from the implied undertaking in these circumstances.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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