Chin and Comcare (Compensation) [2017] AATA 634 (10 May 2017)

Safety, Rehabilitation and Compensation Act 1988, ss 29, 57, 69(a), 70, 72

Alterskye v Scott [1948] 1 All ER 469

Ampolex Ltd v Perpetual Trustee Company (Canberra) Ltd (1995) 18 ACSR 218

Australian Securities Commission v Ampolex Ltd (1995) 38 NSWLR 504

Central Queensland Cement Pty Ltd v Hardy (1989) 2 Qd R 509

Crest Homes plc v Marks [1987] 1 AC 829

Esber v Commonwealth [1992] HCA 20; (1992) 174 CLR 430

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

Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316

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

Hearne v Street [2008] HCA 36; (2008) 235 CLR 125

Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 648

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

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

Riddick v Thames Board Mills Ltd [1977] QB 881

Sybron Corporation v Barclays Bank plc [1985] Ch 299

Tate Access Floors Inc v Boswell [1991] Ch 512

1. Comcare was compelled to produce documents to the Tribunal and the applicant. Comcare now proposes to use those documents for claims management purposes. The question arises whether an implied undertaking applies to Comcare in relation to those documents and, if it does, whether Comcare would have to be released from that implied undertaking before it could use the documents for those purposes.
2. I answer the interlocutory questions:
   • An implied undertaking applies to Comcare in relation to those documents, but not as a result of Comcare having been compelled to produce the relevant documents, and only to the extent that the documents contain information from documents obtained under summons.
   • Comcare does not require a release from that implied undertaking before it can use the documents for the purposes of making future decisions about the applicant's entitlement to compensation under the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) for her accepted injuries. That is because those purposes are not collateral or ulterior to the purpose for which the documents were produced in this review.

1. On 8 February 1995, Ms Seow Chin made a claim for compensation for injuries she sustained when she slipped at work on 27 January 1995. At some time in 1995,[1] Comcare accepted liability to pay Ms Chin compensation for a "fracture of [her] left kneecap". On 18 October 1995, Comcare accepted liability under the SRC Act to pay her compensation for her "left sacroiliac joint strain".
2. On 2 January 1997, Comcare began paying Ms Chin to receive household services.
3. On 30 November 2015, Comcare gave Ms Chin notice that it intended to determine that she had no present entitlement to compensation for household services under s 29 of the SRC Act. Comcare gave Ms Chin until 31 January 2016 to provide further information as to why her entitlement should continue, and extended payment for household services until that date. On 23 December 2015, Ms Chin provided Comcare with further information.
4. On 2 February 2016, Comcare decided that Ms Chin had no present entitlement to compensation for household services.[2] On 1 April 2016, Ms Chen requested a reconsideration of that determination. On 15 April, Comcare affirmed its determination.
5. On 9 June 2016, Ms Chin applied to the Tribunal, under s 64 of the SRC Act, for review of that decision.
6. Between 1 August and 17 November 2016, various directions of a Tribunal conference registrar required Comcare to provide the Tribunal and Ms Chin with copies of reports prepared by Dr Mohamad Mourad, and the briefing material that Comcare had provided to Dr Mourad.[3] I will call these documents (the reports and the briefing material) the relevant documents.
7. On 13 December 2016, Comcare wrote to the Tribunal and Ms Chin, saying:

Comcare has obtained two reports from Dr Mourad, orthopaedic surgeon, dated 17 October 2016 and 17 November 2016. The briefing material provided to Dr Mourad included some documents which were obtained under summons.

We consider it is arguable that Comcare does not need the Tribunal's permission for Comcare to consider Dr Mourad's reports for claims management purposes, because the implied undertaking only prevents Comcare from using compulsorily-obtained documents (and reports such as Dr Mourad's which are informed by compulsorily-obtained documents) for collateral purposes. In our view, claims management purposes are not collateral to closely-related Tribunal proceedings which concern the very same injuries. Nevertheless, out of caution, we ask for the Tribunal's "release" from the implied undertaking, if the Tribunal considers it is necessary to give such a release.

1. The interlocutory issues are these:
   • Does an implied undertaking apply to Comcare in relation to the relevant documents?
   • If so, does Comcare require a release from that implied undertaking before it can use the relevant documents for claims management purposes?
   • If so, should Comcare be released from that implied undertaking?

1. I conducted a directions hearing by telephone on 19 January 2017. Comcare made the arguments it had made in its letter of 13 December 2016. Ms Chin argued that Comcare was subject to an implied undertaking in relation to the relevant documents, and that Comcare should not be released from that undertaking. Both parties asked to be allowed to make written submissions on these issues, and each did.
2. On 21 February 2017, I conducted a hearing in an unrelated matter: Cullen and Australian Postal Corporation.[4] A similar issue arose in Cullen about whether an implied undertaking applied to specified documents. The respondent in Cullen argued that the implied undertaking did not apply to it because (amongst other reasons) the respondent had been compelled to produce the documents - the undertaking, it was argued, applied only to the applicant. I made an ex tempore decision, at that hearing, that the implied undertaking did not apply to the respondent in Cullen.[5] The next day, Cullen settled,[6] so I did not prepare written reasons for my decision.
3. In its written submissions, Comcare argued that the implied undertaking does not apply in this review in relation to the relevant documents. Comcare also argued that, if the implied undertaking does apply, Comcare should be released from it.
4. In her written submissions, Ms Chin expanded upon her argument that Comcare is subject to an implied undertaking in relation to the relevant documents, and that Comcare should not be released from that undertaking to use those documents for what she called "a collateral purpose".
5. Neither of the parties in this review had addressed, in their submissions, the argument that the implied undertaking does not apply to Comcare because Comcare was compelled to produce the relevant documents. I gave each party the opportunity to make written submissions on that point. Comcare initially did not do so. Ms Chin made written submissions. Comcare then made written submissions. Ms Chin made further written submissions.

1. In Hearne v Street, a majority of the High Court set out the following "background legal principles":

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 types of material disclosed to which this principle applies include documents inspected after discovery, answers to interrogatories, documents produced on subpoena, documents produced for the purposes of taxation of costs, documents produced pursuant to a direction from an arbitrator, documents seized pursuant to an Anton Piller order, witness statements served pursuant to a judicial direction and affidavits. ...

It is common to speak of the relevant obligation as flowing from an "implied undertaking".[7]

The Court explained that the implied undertaking is "a legal obligation which arises by operation of law by virtue of the circumstances under which the relevant person obtained the documents or information".[8] That obligation applies in the Tribunal.[9]

1. Ms Chin says that the implied undertaking applies to both her and Comcare. But the High Court, in Hearne v Street, made it clear that "[t]he primary person bound by the relevant obligation is the litigant who receives documents or information from the other side pursuant to litigious processes".[10] Other people (for example, expert witnesses) are also bound, when they receive documents or information in relation to which an implied undertaking applies.[11] But, as between the parties, the implied undertaking applies to the "the party obtaining the disclosure" and not the "party [that] is compelled ... to disclose documents or information".[12]
2. Comcare concedes that it would have given Dr Mourad's reports to Ms Chin "whether or not the Tribunal had directed it to do so". That is not relevant to this issue, because Comcare was compelled to produce them.
3. Ms Chin says that the implied undertaking applies in relation to Dr Mourad's opinion as expressed in the relevant documents. She argues that, although Comcare was compelled to produce the relevant documents, it cannot be said that Comcare was compelled to produce the opinion. I disagree. If a party is compelled to produce a document, then that party has been compelled to produce both the document and the information that is contains. This will be so even in circumstances where an applicant undergoes a compulsory examination by a medical practitioner nominated by Comcare, and the medical practitioner prepares a report. Information in that report may have been compulsorily obtained from the applicant (because the applicant was required to undergo the examination under s 57 of the SRC Act), but the implied undertaking arises because of the compulsory production of the report (and the information that it contains) by Comcare to the Tribunal and the applicant.
4. The relevant documents (Dr Mourad's reports and the briefing material) are clearly the sort of material in relation to which an implied undertaking can apply. And, Comcare was compelled by the Tribunal to produce copies of the relevant documents to the Tribunal and to Ms Chin. It follows that an implied undertaking applies to Ms Chin in relation to the relevant documents and the information they contain.
5. An implied undertaking also applies to Comcare, but not as a result of it having been compelled to produce the relevant documents. As noted above,[13] the briefing material that Comcare provided to Dr Mourad included some documents which were obtained under summons (the summonsed documents). The implied undertaking applies to Comcare in relation to the summonsed documents. It also applies to Comcare in relation to Dr Mourad's reports - but only to the extent that the reports were informed by, or reproduce information from, the summonsed documents.

Does Comcare require a release from that implied undertaking?

1. Comcare says that it intends to use the relevant documents for claims management purposes: that is, "to take them into account in future decisions about [Ms Chin's] entitlement to compensation under the SRC Act for the accepted injuries". Comcare says that it does not require a release from that implied undertaking because claims management purposes are not collateral to the Tribunal proceedings, and because the implied undertaking must yield to inconsistent statutory provisions.

1. In Esso Australia Resources Ltd v Plowman, Brennan J explained that:

The underlying principle [where there is an implied undertaking in court proceedings] is that a party who obtains the production of documents or the disclosure of information for a particular purpose cannot use the documents or information for a "collateral or ulterior purpose".[14] That phrase is not used in a pejorative sense, as Lord Diplock said in Home Office v Harman,[15] but it is used "merely to indicate some purpose different from that which was the only reason why, under a procedure designed to achieve justice in civil actions, [the solicitor for a party] was accorded the advantage, which she would not otherwise have had, of having in her possession copies of other people's documents."[16]

1. In Ampolex Ltd v Perpetual Trustee Company (Canberra) Ltd, the Supreme Court of New South Wales explained that "collateral or ulterior purposes" means "purposes different from the conduct of the proceedings in or in relation to which the inspection [of a document produced under compulsory court processes] was had".[17] In Hamersley Iron Pty Ltd v Lovell, the Supreme Court of Western Australia explained that a "collateral purpose" is a "purpose that does not relate to the proceedings in which discovery was made"[18] and "a purpose collateral to the purpose which production of the documents is intended to serve".[19] The Court said that "collateral or ulterior purposes" include "purposes outside those for which they had been disclosed".[20] The Court also cited Mason CJ's explanation in Esso that the implied undertaking is an undertaking "not to use any document disclosed for any purpose otherwise than in relation to the litigation in which it is disclosed".[21] The question whether documents were used for a "collateral purpose" did not arise in Hearne v Street,[22] but (as noted above)[23] the majority of the High Court said that the implied undertaking restrains a party from using a disclosed document or information "for any purpose other than that for which it was given".[24]
2. In Idoport Pty Ltd v National Australia Bank Ltd, the NSW Supreme Court adopted the following as part of a statement of "what constitutes a collateral or ulterior purpose generally":

The use of documents disclosed in one action for the purposes of another action will be a collateral or ulterior purpose: Crest Homes plc v Marks [1987] 1 AC 829 at 837, Tate Access Floors Inc v Boswell [1991] Ch 512 at 526; even where the parties to both actions are identical: see [Riddick v Thames Board Mills Ltd [1977] QB 881] at 896-897, 901-902 and 912; and where the causes of action are identical: Sybron Corporation v Barclays Bank plc [1985] Ch 299 at 319-320.[25]

1. Comcare says that the relevant documents "were obtained in order to assist with the determination of Comcare's liability to pay compensation for household services in respect of the accepted injuries". It says that that the purposes for which it intends to use the relevant documents (the claims management purposes) "are to determine Comcare's liability to pay compensation under the very same legislation in respect of the very same injuries". It follows, Comcare says, that the claims management purposes are "not collateral to the Tribunal proceedings; they are closely connected with them".
2. I agree that claims management purposes are not collateral to the proceedings in this review. The Tribunal, in conducting merits review of Comcare's decision, stands in the shoes of the decision maker.[26] The Tribunal's decision (when it is made) will be more than just closely connected with claims management purposes: it will be - like the decision under review - a claims management decision. This is not a situation where documents are proposed to be used "in one action for the purposes of another action";[27] the Tribunal's decision will be one decision amongst several made during the management of the same claim.
3. In this review, Comcare was compelled to produce the relevant documents for the purpose of the Tribunal determining whether Ms Chin is entitled to compensation for household services. The claims management purposes - future decisions about Ms Chin's entitlement to compensation for the accepted injuries - are not "different" to,[28] "outside"[29] or "otherwise than in relation to"[30] that purpose. The claims management purposes are not purposes other than that for which the relevant documents were given.[31]
4. That would not necessarily have been the case if the claims management purposes and the decision under review had related to the same person but to different injuries. But, in this review, the claims management purposes and the decision under review are both concerned with compensation in relation to the injuries Ms Chin sustained in January 1995.[32] It follows that the claims management purposes are not collateral or ulterior to the purpose for which Comcare was compelled to produce the relevant documents in this review. Comcare does not require a release from the implied undertaking before it can use the relevant documents for claims management purposes.

1. Because I have decided that Comcare does not require a release from the implied undertaking, I do not need to consider whether the implied undertaking must yield to inconsistent statutory provisions.[33]

Should Comcare be released from the implied undertaking?

1. Because I have decided that Comcare does not require a release from the implied undertaking, I do not need to consider whether Comcare should be released from it.

1. An implied undertaking applies to Comcare in relation to:
   • the summonsed documents that were included in the briefing material that it provided to Dr Mourad; and
   • Dr Mourad's reports - but only to the extent that those reports were informed by, or reproduce information from, the summonsed documents.

The implied undertaking also applies to the information in those documents.

1. Comcare does not require a release from that implied undertaking before it can use those documents (or that information) in future decisions about Ms Chin's entitlement to compensation under the SRC Act for her accepted injuries. Those claims management purposes are not collateral or ulterior to the purpose for which Comcare was compelled to produce the relevant documents.

I certify that the preceding 33 (thirty-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member Popple

........................................................................

Claims and Liability Management Division, Comcare

[1] The relevant determination has not been found.

[2] Comcare also decided that Ms Chin had no present entitlement to compensation for attendant care services under s 29 of the SRC Act. It appears that Ms Chin does not contest that aspect of the 2 February determination, as affirmed on 15 April 2016.

[3] Direction number 5 of 1 August 2016, as amended on 28 September 2016; and direction number 3 of 17 November 2016.

[4] Applications 2015/0965, 2016/1864, 2016/1865 and 2016/5377.

[5] I also explained that, if an implied undertaking had applied to the respondent in Cullen, I would have released the respondent from that undertaking.

[6] The parties reached agreement as to the terms of a decision, and I made that decision in accordance with those terms under s 42C(2) of the Administrative Appeals Tribunal Act 1975.

[7] [2008] HCA 36; (2008) 235 CLR 125 at 154-155 [96]-[97] per Hayne, Heydon and Crennan JJ, footnotes omitted. Gleeson CJ at 131 [3], 132 [6] and Kirby J at 145 [56]-[60] agreed, though see Kirby J at 142-145 [46]-[55]. Their honours cited, amongst other cases, the decision of the House of Lords in Harman v Secretary of State for Home Department [1983] 1 AC 280. The rule about implied undertakings is sometimes called the Harman rule.

[8] [2008] HCA 36; (2008) 235 CLR 125 at 160 [108] per Hayne, Heydon and Crennan JJ, citing Prudential Assurance Co Ltd v Fountain Page Ltd [1991] 1 WLR 756; [1991] 3 All ER 878; see also [2008] HCA 36; (2008) 235 CLR 125 at 131 [3] per Gleeson CJ; at 145 [57] per Kirby J.

[9] Otter Gold Mines Ltd v McDonald (1997) 76 FCR 467 at 471-473 per Sundberg J.

[10] [2008] HCA 36; (2008) 235 CLR 125 at 160 [109] per Hayne, Heydon and Crennan JJ.

[11] [2008] HCA 36; (2008) 235 CLR 125 at 160 [109] per Hayne, Heydon and Crennan JJ.

[12] [2008] HCA 36; (2008) 235 CLR 125 at 154 [96] per Hayne, Heydon and Crennan JJ. See [16] above.

[13] See [9] above.

[14] Alterskye v Scott [1948] 1 All ER 469 at 470; see Central Queensland Cement Pty Ltd v Hardy (1989) 2 Qd R 509 at 510.

[15] [1983] 1 AC 280 at 302.

[16] Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10 at 36 per Brennan J.

[17] (1995) 18 ACSR 218 at 221 per Giles CJ Comm D. That decision was overturned by the Court of Appeal (Kirby P, Sheller JA and Cole JA) in Australian Securities Commission v Ampolex Ltd (1995) 38 NSWLR 504, but not on this point.

[18] (1998) 19 WAR 316 at 320 per Ipp J.

[19] (1998) 19 WAR 316 at 334 per Anderson J, with whom Pidgeon J agreed (at 320) on this point.

[20] (1998) 19 WAR 316 at 337 per Anderson J.

[21] Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10 at 32 per Mason CJ. See Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316 at 320 per Ipp J; at 334 per Anderson J.

[22] See [2008] HCA 36; (2008) 235 CLR 125 at 131 [5] per Gleeson CJ.

[23] See [16] above.

[24] [2008] HCA 36; (2008) 235 CLR 125 at 154 [96] per Hayne, Heydon and Crennan JJ.

[25] Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 648 at [27] per Einstein J, formatting edited.

[26] Esber v Commonwealth [1992] HCA 20; (1992) 174 CLR 430 at 440 per Mason CJ, Deane, Toohey and Gaudron JJ.

[27] Idoport Pty Ltd v National Australia Bank Ltd: see [25] and note 25 above.

[28] Esso Australia Resources Ltd v Plowman: see [23] and note 16; Ampolex Ltd v Perpetual Trustee Company (Canberra) Ltd: see [24] and note 17.

[29] Hamersley Iron Pty Ltd v Lovell: see [24] and note 20.

[30] Esso Australia Resources Ltd v Plowman: see [24] and note 21.

[31] Hearne v Street: see [16] and note 7, and [24] and note 24.

[32] See [3] above.

[33] Comcare said that the following provisions of the SRC Act are inconsistent with the implied undertaking: s 69(a) (one of Comcare's functions is "to make determinations accurately and quickly in relation to claims and requests made to Comcare under this Act"); s 70 ("Comcare has power to do all things necessary or convenient to be done for, or in connection with, the performance of its functions"); and s 72 ("In performing the function referred to in paragraph 69(a), Comcare ... shall be guided by equity, good conscience and the substantial merits of the case, without regard to technicalities ...").