2. The respondent is to pay the applicant's costs fixed at $8,500.00 plus disbursements to be paid on County Court Scale A, and if not agreed to be assessed by the principal registrar relevant to the following decisions:

(a) not to accept liability for medication for gastro-oesophageal reflux disease (11 March 2003);

(b) not to fund replacement spectacles (20 June 2003);

(c) not to accept liability for treatment and medication for hypertension (18 September 2003); and

(d) cessation of loss of earning capacity benefits (28 October 2004).

3. The applications for review are otherwise dismissed.

Background

1 This matter consists of the review of a number of decisions made by the respondent arising out of a transport accident on 15 May 2002.

2 The matter has now been resolved but the respondent seeks to be released from the implied undertaking attaching to documents produced to the Tribunal. The order sought by the respondent is as follows -

To the extent that an implied undertaking attaches to any document or information disclosed in these proceedings, prohibiting their use for a purpose collateral to these proceedings, the Transport Accident Commission be released from that undertaking to the extent necessary to perform all its objectives, functions and powers given to it under the Transport Accident Act 1986 and any other legislation or regulations in relation to the claim for compensation made by the plaintiff/applicant and any review, appellate or legal proceeding relating thereto.

3 The two matters before the Tribunal were listed for final hearing on 15 March 2005. Prior to the hearing a number of subpœne were issued by the Tribunal and a number of those subpœne sought the production of clinical notes, files and other specified documents. As best I can understand from the files, subpœne for the production of documents were issued to The Valley Private Hospital, Angliss Hospital, Allianz Australia, Dr David Badov, Dr Luke Crantock, RACV, Dr Soo and Dr Despina Parathira and documents were duly produced to the Tribunal. I infer that, during the partial cross-examination of Mr Kakoullis, knowledge gained from the contents of at least some of the documents was used in the framing of some of the questions put to him. In addition, on the second day of the hearing the Tribunal heard some evidence from Dr Soo by telephone and a report written by her dated 15 March 2005 was marked as an exhibit.

The law

4 The production of documents is brought about by the issue and service of notices as provided in Schedule 2 to the VCAT Rules pursuant to Rule 4.13. In the absence of a claim for privilege, the documents are then made available to the parties for inspection and copying. That the "Harman" undertaking operates in this Tribunal seems clear but if there were any doubt, the Court of Appeal dispelled it in Secretary, Department of Treasury v Kelly [2001] VSCA 246; (2001) 4 VR 595,614 where Chernov AJ stated in relation to documents produced in that case -

The Tribunal had the power, under s 80(3) of the Victorian Civil and Administrative Tribunal Act 1998 to make such an order although the respondent was subject to the implied undertakings identified in Home Office v Harman in relation to the copy document.

5 In Home Office v Harman [1983] 1 AC 280, the House of Lords held (quoting from the headnote) that -

"a solicitor who in the course of discovery in litigation obtained possession of copies of documents belonging to his client's adversary gave an implied undertaking to the court not to use the copies, nor to allow them to be used, for any purpose other than the proper conduct of the action on behalf of his client; that the fact that such documents were read out in open court at the hearing of the action, whether admitted in evidence or not, did not bring the implied undertaking to an end, and breach of it was a civil contempt of court.

6 For the purpose of the matter before me it should be noted that the Lords were divided on the issue of what would occur if and when the documents were read in open court but not formally received in evidence. Notwithstanding their competing views, it is clear that courts in Australia have accepted Harman as authority for the proposition set out above and that the argument that the implied undertaking came to end once it was articulated in open court was strongly rejected by the majority.

7 In Harman, their Lordships referred to an explanation of the implied undertaking provided by Lord Denning in Riddick v Thames Board Mills Ltd [1977] 1 QB 881 and it seems to me it underpins any consideration of the matters before me. At p.896 his Lordship, noting that the memorandum in question in that case had been produced by compulsion went on to say-

Compulsion is an invasion of a private right to keep one's documents to oneself. The public interest in privacy and confidence demands that this compulsion should not be pressed further than the course of justice requires. The courts should, therefore, not allow the other party - or anyone else - to use the documents for any ulterior or alien purpose. Otherwise the courts themselves would be doing an injustice......In order to encourage openness and fairness, the public interest requires that documents disclosed on discovery are not to be made use of except for the purposes of the action in which they are disclosed.

8 Hamersley Iron Pty Ltd v Lovell & Anor (1998) was a case heard by the Full Court of the Western Australian Supreme Court. Mr Lovell was an industrial advocate who had been involved in a long-running dispute with Hamersley. During a radio interview he referred to the existence and contents of some of the documents obtained through discovery. The material in question had been discussed in open court but ultimately it was considered inadmissible. Although all members of the Court held that Mr Lovell was guilty of contempt, their reasoning was not entirely uniform. For instance Ipp J (Pidgeon J concurring) held that "it was unnecessary to decide whether the implied undertaking terminated upon the use of the discovered documents in open court during the course of the application for leave to address fresh evidence. At most, the implied undertaking would only terminate if the discovered documents were tendered and properly admissible in evidence." Anderson J at p.342 stated -

This case is a neat illustration of the dangers of any relaxation of the common law rule laid down by the majority in Harman. Pursuant to its obligations to do so, and on no other basis, the applicant made discovery of document that were confidential to it. During the course of a procedural hearing reference was made to the documents as "fresh evidence". The question whether they were admissible in evidence was hotly contested. The transcript does not show that any of the documents were read aloud. There was no member of the media present in court. So far as appears, there was no media interest at all in the proceedings, either at the time or subsequently. Yet the contemnors claim that the fact that the documents were referred to in open court.....gave the contemnor the right to take the documents in their entirety and use them publicly to their own advantage for purposes unconnected with the legal proceedings. In my opinion, there is no justification for such a substantial erosion of the "private right to keep one's documents to oneself": see Riddick v Thames Board. As was so forcefully pointed out by Lord Keith and Lord Roskill in _Harman....._there is no reason why the fact that a document belonging to a party has been referred to in open court should destroy the private right of that party to prevent the public dissemination of it by the party who has obtained discovery of it.

9 The subject of the implied undertaking received some attention from the Victorian Court of Appeal in British American Tobacco Australia Services Ltd v Cowell (representing the Estate McCabe (deceased) (No.2) [2003] VSCA 43; (2003) 8 VR 571. It is not necessary to traverse the complicated factual scenario in Cowell but the end result was that the Court of Appeal held that the implied undertaking remained in force even though most of the documents had been tendered previously in open court. At p.586 the Honours having considered a raft of cases, had this to say -

In this instance the documents in question were not produced only by the appellant itself; they were produced also by its solicitors in response to subpoenas duces tecum. As such, the documents were still "personal and private" to the appellant, relating in the main to legal advice being sought and tendered. It is unnecessary in this case to consider how far protection might be afforded when the documents are produced by someone altogether independent of the parties: obviously the more tenuous the connection between the person producing the document and the party concerned to seek protection, the less likely it is that the document will contain information personal to the party and private in nature. But if the document does contain material personal to the affairs of the party which is of a private or confidential nature, then, no matter by whom produced, the implied undertaking will ordinarily be important to the party and its enforcement of concern. In such circumstances, we see no reason why, if it once attaches, the implied undertaking should not endure despite the tender of the document in evidence against the party seeking protection. The fact that, by reason of its tender, it has passed into "the public domain" may be a consideration when leave is sought to use the document otherwise than for the purposes of the litigation in which it was produced, but it does not per se gainsay the continuance of the undertaking.

10 In Citicorp Life Insurance v Garry Lubransky and Nicholas Bagiotis v Citicorp Life Insurance [2005] VSC 101 Hargrave J considered a rather complicated factual situation involving some medical reports and an application by Citicorp for release from the implied undertaking relating to those reports. The issues were summarised by his Honour at para 36 -

There is no dispute that, by reason of their discovery by Bagiotis in the Bagiotis proceeding, the [medical] documents were the subject of an implied undertaking by Citicorp that it would not use those documents and information derived therefrom for any purpose other the Bagiotis proceeding. The principal issue is......whether, and if so to what extent, Citicorp has been relieved from the consequences of the implied undertaking because the reports were the subject of evidence in the [earlier] Bagiotis proceedings.

11 In considering whether Citicorp was still bound by the undertaking, his Honour considered the Cowell case and the Court of Appeal's examination in Cowell of the Harman case as well as that of Sybron Corporation v Barclays Bank Plc [1985] Ch.299. At para 48 of his judgment, Hargrave J said that in his opinion the Court of Appeal in Cowell accepted (with one exception) the continued authority of Harman and Sybron. At paragraph 50 he stated -

In my view, Cowell stands as authority for the narrow proposition that the mere passing of a document into evidence does not relieve the party bound by the implied undertaking from its obligations in respect of document.

12 His Honour them went on to consider what might constitute "special circumstances" which might give rise to release or modification of the implied undertaking. He cited Wilcox J in Springfield Nominees Pty Ltd v Bridgelands [1992] FCA 472; (1992) 38 FCR 217. At p.225 his Honour stated -

For "special circumstances" to exist it is enough that there is a special feature of the case which affords a reason for modifying or releasing the undertaking and it is not usually present. The matter then becomes one of the proper exercise of the court's discretion, many factors being relevant. It is neither possible nor desirable to propound an exhaustive list of those factors. But plainly they include the nature of the document, the circumstances under which it came into existence, the attitude of the author of the document and any prejudice the author may sustain, whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain, the nature of the information in the document (in particular whether it contains personal data or commercially sensitive information), the circumstances in which the document came into the hands of the applicant for leave and, perhaps most important of all, the likely contribution of the document to achieving justice in the second proceeding.

13 Hargrave J. then went on to add to the list of "special circumstances" the extent to which the information contained in the documents under consideration had entered the "public domain."

Discussion

14 All of the foregoing representing the current law in this state, it is clear that the implied undertaking should not be waived unless there are "special circumstances" suggesting release is appropriate. I am not persuaded that the implied undertaking should be waived or varied in this instance and this is so not only by reason of the cases referred to. There is one striking difference between this Tribunal and the County and Supreme Courts. That difference is to be found in sections of the tribunal's enabling legislation. Section 106(1) of the Victorian Civil and Administrative Tribunal Act 1998 provides -

Except as provided by section 80(3) or 105, a person is excused from answering a question or producing a document in a proceeding if the person could not be compelled to answer the question or produce the document in proceedings in the Supreme Court.

15 Section 80(3) is expressed in the following terms -

The Tribunal may give directions under this section requiring a party to produce a document or provide information in a proceeding for review of a decision despite anything to the contrary in section 106(1) or any rule of law relating to privilege or the public interest in relation to the production of documents.

16 In applications to review TAC decisions made in no-fault matters, it is not at all uncommon for the Tribunal to override medical privilege and that practice has developed over the years for a number of reasons. First, issues in this Tribunal arising from TAC decisions are inevitably in the arena of a publicly funded no-fault compensation scheme. Second it is clear from Bausch v TAC (1996) 11 VAR 117 that the Tribunal's task is to determine whether on the material before it a decision is correct or preferable and in search of this end it is to conduct its review in an inquisitorial manner and not according to adversarial principles. It is with this imperative in mind that the power to override medical privilege is often exercised. Further, it is not uncommon for the Tribunal to be requested to sign consent orders where the parties agree that the privilege will be waived, presumably because there are further matters for inquiry and decision by the respondent in relation to the ongoing management of an individual's claim. Often, claimants will have continuing matters for decision such as entitlements to loss of earnings and loss of earning capacity benefits, entitlement to ongoing medical treatment, impairment assessments and the like and the Tribunal infers that issues of common sense and efficiency govern such consent orders. To my mind it is essential for the good governance of the scheme and the proper and efficient conduct of the respondent's administration of that scheme that it be able to avail itself of information gained in one matter for the benefit of future no-fault matters.

17 The difficulty the Tribunal apprehends is when an accident victim, having exhausted his or her no-fault remedies, wishes to pursue common law remedies in the courts. In serious injury applications in the County Court for instance, the medical privilege remains intact and there is no power to override it. Certainly the Commission has the knowledge garnered from documents produced to this Tribunal and it cannot erase that knowledge from its corporate memory. But knowledge is one thing, and the ability to turn that knowledge into admissible evidence in a court is another.

18 In the circumstances it seems to me that the undertaking should not be waived in respect of matters that might arise from Part 6 of the Transport Accident Act 1986 which deals with legal rights outside that Act. The appropriate order should be -

1. To the extent that an implied undertaking attaches to any document or information in these proceedings, the respondent is released from its undertaking to the extent necessary to perform all its objectives, functions and powers given under the Transport Accident Act 1986 in relation to the claim for compensation made by the applicant save and except for any claim which might arise from Part 6 of that Act.

19 The following orders in this case are made by consent of the parties --

2. The respondent is to pay the applicant's costs fixed at $8,500.00 plus disbursements to be paid on County Court Scale A, and if not agreed to be assessed by the principal registrar relevant to the following decisions:

(a) not to accept liability for medication for gastro-oesophageal reflux disease (11 March 2003);

(b) not to fund replacement spectacles (20 June 2003);

(c) not to accept liability for treatment and medication for hypertension (18 September 2003); and

(d) cessation of loss of earning capacity benefits (28 October 2004).

3. The applications for review are otherwise dismissed.