2. At the hearing on this issue, Mr T. Tobin of Counsel appeared for the applicant and Mr R Huttner, an officer of the Australian Government Solicitor, appeared for the respondent. The application came before me at the request of the applicant's solicitors, who wrote to the Tribunal on 20 November 1990 in the following terms:

"We are of the view that the inclusion of medical reports of Messrs.

A.J. Buzzard and M.L. Ingpen by the Respondent in the 'T' documents

is in breach of the provisions of the Privacy Act 1988.

Furthermore, we do not believe that the Respondent is entitled to

have the Applicant re-examined by either of the above two doctors

and accordingly, Mr Windsor will not be attending the medical

appointment arranged by the Respondent's Solicitors with Mr Ingpen

on 22 November, 1990.

In view of the above we request that a hearing be

listed as soon as possible to determine these questions."

3. From the documents (the "T documents") lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (the "AAT Act") it appears that Mr Windsor was first employed by the respondent "Australia Post" as a driver from 31 July 1972. He commenced duties as a mail officer during 1980. On 12 August 1983 he claimed compensation for "severe, persistent pain in right elbow and shoulder" which he claimed, occurred while sorting standard mail at letter frames.

4. On 28 November 1983 a delegate of the Commissioner for Employees' Compensation accepted liability to pay compensation in respect of incapacity due to supraspinatus tendinitis of the right shoulder. From 1983 to 1989 Mr Windsor had intermittent periods off work due to his condition. From January 1986 until 16 August 1989, when he retired on account of invalidity, he worked with Australia Post on light duties and received payments of compensation for partial incapacity. On 24 May 1990 a determination was made by the respondent terminating entitlement to compensation from that date. Mr Windsor requested a reconsideration and on 18 July 1990 the determination of 24 May 1990 was affirmed. Mr Windsor applied to this Tribunal on 31 July 1990 for review of the reviewable decision made 18 July 1990.

5. Mr Windsor was first examined by Mr Buzzard on 25 October 1985 and by Dr Ingpen on 2 December 1985. There was no evidence before me as to when common law proceedings were commenced in the Supreme Court of Victoria, but Mr Huttner, who appeared for the respondent did not contest that the reports of Mr Buzzard and Mr Ingpen included in the T documents were documents obtained for the purposes of the common law proceedings. Mr Windsor was re-examined by each doctor in 1987 and in 1988.

6. When Mr Tobin commenced his submissions, he informed the Tribunal that the applicant had five separate grounds for submitting that the Tribunal should not take the reports of Mr Buzzard and Dr Ingpen into evidence. Only one of those reasons was related to the Privacy Act 1988. The Tribunal therefore asked Mr Huttner whether he requested an adjournment to deal with the points which were not related to the Privacy Act. He did not seek any adjournment.

a. That the reports were made available to the Tribunal

in breach of the provisions of the Privacy Act 1988.

b. That the reports were made available in breach of the

c. That the reports were made available in breach of the

inherent privilege and confidentiality attached to such

reports and maintained by the applicant.

d. That the reports were made available in breach of the

e. That the Tribunal should, as a matter of discretion,

a. The Privacy Act 1988

8. Mr Tobin contended that the inclusion of the medical reports in the T documents lodged pursuant to s.37 of the AAT Act was in breach of Information Privacy Principles 9 and 10 found in s.14 of the Privacy Act. Principle 9 reads as follows:

" Principle 9

Personal information to be used only for relevant purposes

A record-keeper who has possession or control

of a record that contains personal information shall not

use the information except for a

purpose to which the information is relevant."

9. It is clear from a reference to the medical reports that they deal with Mr Windsor's claim that he developed aching in the right upper arm region as a result of his work as a mail sorter with Australia Post. Thus, I am satisfied that they are, as Mr Huttner submitted, "highly relevant" to the application before this Tribunal. The submission based on Principle 9 therefore does not succeed.

" Principle 10

Limits on use of personal information

1. A record-keeper who has possession or control of a record that

contains personal information that was obtained for a particular

purpose shall not use the information for any other purpose unless:

(a) the individual concerned has consented to use of the information

for that other purpose;

(b) the record-keeper believes on reasonable grounds that use of the

information for that other purpose is necessary to prevent or lessen

a serious imminent threat to the life or health of the individual

concerned or another person;

(c) use of the information for that other purpose is required or

authorised by or under law;

(d) use of the information for that other purpose is reasonably

necessary for enforcement of the criminal law or of a law imposing a

pecuniary penalty, or for the protection of the public revenue; or

(e) the purpose for which the information is used is directly related

to the purpose for which the information was obtained.

2. Where personal information is used for enforcement of the criminal

law or of a law imposing a pecuniary penalty, or for the protection

of the public revenue, the record-keeper shall include in the record

containing that information a note of that use."

11. Section 15(1) of the Privacy Act provides as follows:

" 15.(1) Information Privacy Principles 1, 2, 3, 10 and 11 apply

only in relation to information collected after the commencement of

this Act."

The Privacy Act came into operation on 1 January 1989. All the medical reports by Mr Buzzard and Dr Ingpen are dated well before that date, and therefore were presumably collected before the commencement of the Privacy Act.

12. Mr Tobin submitted that if the reports were transferred, from the section of Australia Post dealing with common law claims, to the section dealing with workers' compensation claims, after the coming into operation of the Privacy Act, that could mean that the information was collected after the commencement of the Act. Mr Huttner submitted that there is no justification in the Privacy Act for dividing an agency, which is a collector or a record-keeper, as those terms are defined in the Privacy Act, into sub-sections of that agency. I agree with that submission. Mr Tobin's application, in so far as it is based on Principle 10 of the Privacy Act does not succeed.

13. Mr Tobin relied on s.28(2) of the Evidence Act which reads as follows:

" (2) No physician or surgeon shall without the consent of his

patient divulge in any civil suit action or proceeding any

information which he has acquired in attending the patient and which

was necessary to enable him to prescribe or act for the patient."

He submitted that Mr Buzzard and Dr Ingpen could be regarded as physicians or surgeons divulging information without the consent of their patients. Mr Huttner referred me to the decision of Johnston v Commonwealth of Australia [1974] VicRp 77; (1974) VR 638, in which Norris J held that a person who attends a doctor for the purpose of providing a medical report for legal proceedings is not a patient of that doctor. I accept that decision as a correct statement of the law. I regard it as consistent with the ordinary meaning of the words "his patient" and with the use of the term by lawyers, doctors, Courts and Tribunals in personal injuries litigation.

14. Mr Huttner also referred to Brown v Commonwealth of Australia, an unreported decision of Keely J of the Federal Court, delivered on 28 August 1986, where his Honour held that s.28(2) of the Evidence Act (Vic) does not apply to proceedings before this Tribunal. I conclude that there is no substance in the submission based on s.28 of the Evidence Act.

c. Inherent privilege and confidentiality attached to medical reports

15. Mr Tobin submitted that there must be some inherent privilege and confidentiality attached to medical reports. In support of this proposition he suggested that it would clearly be a breach of duty if a doctor providing a report, or an employer obtaining a report published that report in a newspaper or on a notice board. He did not cite any authority in support of that proposition.

16. It is not necessary for this Tribunal to consider whether, and if so how, such actions might render a doctor or an employer liable in damages or subject to other court proceedings. Whatever confidentiality may attach to medical reports obtained for the purpose of defending common law proceedings does not, so far as I am aware, in the absence of any authority to that effect, attach to prevent the use of those reports by the same employer in compensation proceedings brought by that worker against that employer.

d. Breach of the rules of the Supreme Court of Victoria

17. Mr Tobin submitted that the medical reports obtained by the respondent from Mr Buzzard and Dr Ingpen were obtained pursuant to the rules of the Supreme Court of Victoria on discovery, which rules were found in Orders 31A of the old Rules of the Supreme Court and are now found in Order 33(4) of the new Rules. He therefore claimed that the reports of such attendances are correctly characterised as "documents obtained by discovery", and therefore that the doctrine in Alterskye v Scott (1948) 1 All ER 469, applies to prevent disclosure of those documents in any proceedings other than the proceedings in which they were obtained. Mr Tobin relied also on The Distillors Co (Biochemicals) Ltd v Times Newspapers Ltd (1975) 1 All ER 41, Riddick v Thames Board Mills Ltd (1977) 3 All ER 677, Davies v Eli Lilly and Co (1987) 1 All ER 801, and Home Office v Harman (1982) 1 All ER 532.

18. Mr Huttner did not dispute that there is such a doctrine. He referred the Tribunal to a recent unreported Federal Court decision of National Mutual Holdings Pty Ltd v The Sentry Corporation, an unreported decision of the Federal Court delivered on 18 May 1990 where Northrop J said at paragraph 32:

"It is clear that according to Australian law a person

who acquires a document pursuant to the processes of the Court is

under a duty not to disclose or make use of that document for

purposes other than the Court proceedings without the leave of the

Court or the person from whom the document has been obtained. The

position has been stated in clear terms by McLelland J in the case

of United States
International Pty Limited, judgment in which was given on 7 May

1982. In that judgment His
'It is a general principle that a party (or a representative of a

party) who is permitted to inspect, or copy, a document of another

produced under compulsory process of the Court in relation to

pending proceedings (whether under subpoena or on discovery) is

subject to an obligation not to use, or permit to be used, any

such copy, or any knowledge acquired from any such inspection,

otherwise than for the purpose of the proceedings, without the

consent of the owner of the documents, or the leave of the Court

(at least where the document is of a confidential nature). Breach

of that obligation may constitute a contempt of Court, and the

Court may reinforce or secure compliance therewith by requiring

appropriate express undertakings to be given as a condition of

permitting the inspection or copying of any such document, or by

granting injunctions, or by limiting access to particular

individuals or classes of individuals." (emphasis added)

19. While Mr Huttner did not dispute the correctness of the proposition relied on by Mr Tobin he submitted that it did not apply to the medical reports in issue because they were not documents acquired by Australia Post as a result of discovery. He pointed out that in the passage quoted by Northrop J, the principle is stated as applying where a party is permitted to inspect or copy a document produced by another party as a result of discovery. He said that the principle as so expressed did not apply to a report which was commissioned by Australia Post itself. I am satisfied that the reports were not obtained as a result of discovery and therefore the doctrine as expressed in the cases cited, does not apply to them.

e. The discretion to reject evidence which has been invalidly or unlawfully obtained

20. Mr Tobin submitted that the Tribunal should take note of the fact that the documents, if used in compensation proceedings, would be so used in breach of the rules of the Supreme Court of Victoria, and should treat them as documents illegally obtained. He further submitted that the Tribunal should therefore exercise its discretion as to the admissibility of evidence, so as to reject that material.

21. I pointed out to Mr Tobin that, in spite of the authorities to which he had referred me, I was by no means satisfied that the material was obtained in breach of the principles relating to documents obtained as a result of discovery as in my view the documents were not "documents obtained by discovery". He suggested that the Tribunal should extend the rule in Atlerskye v Scott so as to cover those reports.

22. I consider that this submission was misconceived. Mr Tobin was asking me to rule that by including the reports in the T documents Australia Post was in contempt of the Supreme Court of Victoria. Had the reports not been included in the T documents, Australia Post would have been in breach of its obligations under s.37(1) and (3) of the AAT Act which reads as follows:

" 37.(1) A person who has made a decision that is the subject of an

application for a review by the Tribunal shall, within 28 days after

receiving notice of the application, lodge with the Tribunal such

number of copies as is prescribed of:

(a) a statement setting out the findings on

material questions of fact, referring to the evidence or

other material on which those findings were

based and giving the reasons for the decision; and

(b) every other document or part of a document

that is in his possession or under his control and is

considered by him to be relevant to the

review of the decision by the Tribunal.

. . .

(3) This section has effect notwithstanding

any rule of law relating to privilege or the public

interest in relation to the production of documents."

23. I consider that it is only the Supreme Court of Victoria which can decide whether or not the use of certain material constitutes a contempt of its processes. I note that McClelland J in the passage quoted by Northrop J said "breach of that obligation may constitute a contempt of Court." In my view the use which has been made by Australia Post of the reports is not outside the use allowed by the rule as to confidentiality of documents obtained on discovery, because the reports were not obtained on discovery. It is however possible that the Supreme Court might interpret its orders as to discovery in a different way. If that were so it would be necessary for there to be a ruling on that point from the Supreme Court before I would consider whether material, which is clearly relevant to proceedings before this Tribunal, should be excluded from those proceedings.

24. On the facts of this matter it appears that the medical reports are relevant and logically probative. The issue whether the Tribunal should in its discretion reject similar evidence arose in Brown v Commonwealth of Australia, where Keely J said at pp 3 to 4:

"It was also submitted that the Tribunal in admitting the evidence

was not "guided by equity, (and) good conscience" and that it should

have been so guided having regard to the terms of s. 20(2)(a) of the

Compensation (Commonwealth Government Employees) Act 1971 (the

Compensation Act). In my opinion, neither the Delegate charged with

the statutory function of making a determination with respect to the

applicant's claim for compensation, nor the Tribunal in reviewing

that determination, were acting in any way contrary to "equity, good

conscience and the substantial merits of the case" in considering

evidence or a report from a treating physician or surgeon (Dr.

Colvin) as to matters which were relevant to the issues before them

- notwithstanding the employee's refusal to consent. Nor was it

"contrary to natural justice" for the Tribunal to do so - a matter

to which the Tribunal referred and which appeared in the notice of

appeal before it was amended. The evidence was relevant and

logically probative and assuming, without deciding, that the

Tribunal had a discretionary power to reject the evidence, in my

opinion the Tribunal did not err in the exercise of its discretion

in deciding to admit the evidence of Dr Colvin. Accordingly I am

unable to uphold the applicant's submissions as to the admission of

evidence."

It must be remembered that in that case the medical report which the Tribunal admitted was a report by the applicant's treating medical practitioner, the use of which was clearly contrary to the object of s.28(2) of the Evidence Act 1958 (Vic). It thus appears that even if the use of the reports in proceedings before the Tribunal were held by the Supreme Court to be a contempt of its Rules, that would not necessarily be the determining fact for the Tribunal in deciding whether or not those reports should be received in evidence.

25. Mr Tobin submitted that as a matter of public policy the Tribunal should reject the reports. He said:

"My submission to this tribunal is that the tribunal should look at

the rules of the Supreme Court of Victoria; should conclude from

those rules that these medical reports are obtained, pursuant to the

discovery procedures of those - that court and are, therefore,

limited to the discovery procedures of that court.

It should, therefore - considering the overriding situation of

materials that are obtained, pursuant to a discovery procedure being

only able to be used in those - that particular action without leave

of the court or consent of the party, should look at the situation

and determine whether or not it, as a matter of public policy,

believes it appropriate as a general procedure that a delegate be

able to refer to materials which are before the delegate and to rely

upon that materials before that delegate by which - have been put

before that delegate for some reason other than the reason for which

they are obtained and allow that material to be relied upon and used

subsequently in proceedings before this tribunal.

Because it is if - the public policy, it is submitted to the

tribunal is this; that if that is the case, all parties who have

previously had common law proceedings will now know that this

tribunal, if the tribunal finds that those reports are obtained by a

discovery procedure, this tribunal has by its ruling in effect

condoned the largest employer in Australia - that is, the

Commonwealth government who is the only party affected by this Act -

being able to breach the rules of the Supreme Court to obtain

material to use against its workers. And that is the public policy

that the tribunal has to weigh up. Or should the tribunal rule that

such material is only permitted as a matter of public policy to be

used before it when the party who has obtained that discovery in

those proceedings obtains the consent of the applicant plaintiff or

leave of the court to use it."

26. However there is also a public policy in favour of the Tribunal receiving such relevant material as will assist it to reach a correct decision on the matter before it, expeditously and without incurring unnecessary further expense. Keely J in Borg v Commonwealth of Australia, an unreported decision of the Federal Court delivered 2 November 1990, rejected an argument that a report and evidence from Dr Robert Myers should not have been received by the Tribunal as evidence in Re Borg and Commonwealth of Australia, Decision No 5505, delivered 17 November 1989

27. The issue was essentially the same as that in this application. The report had been obtained for the purpose of proceedings in the County Court of Victoria. The applicant's Counsel submitted, that it would be an infringement of her rights if Dr Myers' report was placed before the Tribunal. The Tribunal in Re Borg had concluded that Dr Myers' report was a relevant document. It followed Re Lindsey and Australian Postal Commission (1989) 18 ALD 340 at 345-6 and 10 AAR 457 at p 461 where the Tribunal presided over by Gray J had said:

"It must be doubtful at the very least whether the Tribunal has any

power to refuse to accept relevant evidence tendered in an

appropriate form by a party to a proceeding. Such a rejection of

evidence would amount to a denial of natural justice, no warrant for

which appears in any legislation."

28. The Federal Court agreed with the statement of the Tribunal in Re Lindsey and held that the Tribunal in Re Borg had not erred in the exercise of its discretion in permitting Dr Myers' report to be received in evidence or in permitting him to give evidence. Applying the comments of the Tribunal in Re Lindsey, I consider that for the Tribunal in this matter to refuse to accept the relevant evidence of Mr Buzzard and Dr Ingpen would amount to a denial of natural justice, no warrant for which appears in any legislation. Similarly they must be permitted to re-examine Mr Windsor and to give evidence for the respondent in this matter.

29. This application is refused. I reject the applicant's request for directions that the reports of Dr Buzzard and Dr Ingpen be excluded from the evidence received by the Tribunal and that the respondent is not enititled to have Mr Windsor re-examined by Mr Buzzard and Dr Ingpen. The application will be adjourned to a dated to be fixed for further hearing.