WKVM and Comcare (Compensation)

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.