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IMPLIED UNDERTAKING OR HARMAN OBLIGATION - obligation of both parties in relation to summonsed records - obligation of Respondent to medical reports lodged under Tribunal orders - application for release from undertaking for claims administration purposes - whether exercise of statutory power to made determinations affords special circumstances for release from undertaking - whether special circumstances exist to enable Tribunal to determine the contribution of the documents to the achievement of justice - no identifiable dispute to enable assessment of the documents contribution to justice - application for release refused.

Administrative Review Tribunal Act 2024 (Cth)

Administrative Review Tribunal (Common Procedures) Practice Directions, 2026 (Cth)

Safety, Rehabilitation and Compensation Act 1988 (Cth)

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

Otter Gold Mines Ltd v McDonald and Ors [1997] FCA 694; (1997) 76 FCR 467

Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217

1. The Tribunal has made decisions pursuant to section 103 of the Administrative Review Tribunal Act 2024 (ART Act) in both review applications dated 2 April 2026. As a result, the Respondent is liable from 27 September 2024, subsequently and presently, to pay compensation to the Applicant in respect of 'soft tissue injury neck and left knee', sustained 25 November 2023, pursuant to sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act).
2. At the same time as the agreement was proposed to the Tribunal, orders were sought by consent to release the Applicant, the Respondent and the Respondent's claims manager, Employers Mutual Limited (EML) from their undertaking of confidentiality in relation to information and documents that came into their hands as a result of the Tribunal's compulsory processes in applications number 2024/11375 and 2025/5120. The documents for which release is sought are as follows:

(a) Summonsed records from several health practitioner's clinics - Dr Chaitali Biswas, Dr Donald Osbourne, Bodycare Workplace Solutions. Singleton Hospital and PhysioJoint. > > (b) Two reports of Dr Donald Cawthorne dated 5 March and 11 March 2025 which the Applicant obtained to provide an opinion on certain issues in the proceeding that called for his medical expertise.

3. The stated reason for the proposed release is to 'to enable use of the documents by the Respondent's claims manager, EML, for claims determination purposes' in respect of the identified 'soft tissue injury neck and left knee' injury sustained 25 November 2023. The orders sought were nonetheless requested by consent of the parties.
4. The Tribunal refuses to make the order sought for the following reasons.
5. The obligation of confidentiality, that has become known as the Harman Obligation, deals with the obligation imposed by law and recognised as a substantive legal obligation which the High Court explained in Hearne v Street [2008] HCA 36; (2008) 235 CLR 125 (Hearne), runs thus:

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.

6. The obligation is owed to the court. The power to release from that obligation is solely a power of the court and it is the court, or Tribunal. It is well recognised that the Harman Obligation, as described in Hearne, applies to proceedings in the Tribunal (see Otter Gold Mines Ltd v McDonald and Ors [1997] FCA 694; (1997) 76 FCR 467). Further, it is understood that the Harman Obligation is limited to those that are received into the hands of either party by the compulsory processes of the court or tribunal. Any documents received by voluntary production are not subject to the obligation.
7. The obligation continues until the documents are received into evidence in an open hearing. In the present case, no such open hearing took place since the parties settled the disputes by agreement without the need for a hearing of the evidence. Hence, as described above in Hearne, they may be released 'with leave of the court' or Tribunal. The present Administrative Review Tribunal (Common Procedures) Practice Directions, 2026 make provision for the parties to apply for leave in writing. The parties have done so, and I will deal briefly with the arguments raised.

Effect of statutory powers to made determinations

1. A distinct argument raised by the Respondent was to the effect that since the Respondent exercises a statutory duty to make determinations from time to time, that this fact took the present case away from mere private litigation, so often the situation where the Courts must determine a release from the Harman Obligation. The Respondent pointed to section 58 of the SRC Act as an instance of a statutory power whereby the Respondent might require information or a document from the Applicant which, if not complied with, has a potential to suspend the operation of the decision-making process.
2. The fact that the Respondent is exercising statutory powers to determine entitlements to compensation does not affect the consideration of the circumstances to be weighed before releasing documents that are subject to the implied undertaking. If the Parliament intended all statutory decisionmakers to have unlimited access to documents, then such powers would be spelled out in the clearest of terms. In fact, such powers are not granted to decisionmakers acting under an enactment. It is only the Administrative Review Tribunal that has been conferred the powers to compel the production of records through a specific summons power.
3. Section 58 of the SRC Act is quite limited to requests for production of records that are within the possession or control of the claimant for the purposes of obtaining information necessary to the process of determinations. The documents being sought in the present case are those clinical notes that belong to health professionals who have treated the Applicant. However, that does not confer possession or control over such documents. They remain the possession of the doctors and clinicians who made the notes. While certain State and Territory legislation gives a right to patients to obtain copies of their records, that cannot assist the Respondent, since neither Comcare nor a licensed corporation, such as Pacific National Servies Pty Ltd, are among the persons who might make an application for access to such medical records. Section 58 of the SRC Act cannot be used in such a way as to force a claimant to make such an application for records since that would require in personam powers available only to duly established Courts exercising judicial power.

1. The stated purposes of making future determinations does not meet the standard of 'special circumstances' that must found to exist before modification or release of the parties from their undertaking imposed by law. While the Tribunal retains the discretion to release the parties from their undertaking, it must be shown that 'there is a special feature of the case which affords a reason for modifying or releasing the undertaking and is not usually present' (Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217 (Springfield).
2. The 'special feature' is not limited to a closed set of categories, though in Springfield, Wilcox J stated:[1]

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.

3. Springfield, like so many other cases dealing with the release from the Harman Obligation, arose in circumstances where there parties were engaged in separate proceedings in another jurisdiction where the Court was capable of assessing the nature of the document and the importance it had in relation to the proceedings in another jurisdiction and weigh up the contribution to achieving justice.
4. In the present case, there is no second proceeding nor any identified dispute to which the Tribunal is invited to turn its attention to and weigh the contribution of the various documents to that dispute. In resolving the dispute concerning the questions of continuing liability to make payments of weekly compensation for incapacity resulting from the injury and making compensation payments for the cost of medical treatment in respect of that injury, the parties may or may not have been assisted by the contents of the clinical notes and opinions offered by Dr Cawthorne. However, if one assumes that these were invaluable in coming to the conclusion that liability continued after 27 September 2024 and up to the date of the consent order, that does not afford an argument that such records will inform the Respondent as to future liability.
5. In order to determine the entitlement to incapacity leave compensation payments, it requires attention to the circumstances of the particular week in question - whether there is a continuing incapacity in that week, whether there is an ability to earn and the like. That will depend upon future information. Similarly, whether future medical treatment costs will concern the nature of the treatment, the reasonableness of obtaining that treatment and whether they are incurred in respect of the identified injury. If in some future time, the Respondent considers that circumstances have altered so that the incapacitating effects of the injury have ceased, that will be due to new evidence or new circumstances, not the evidence that at present, only speaks to continuing liability.
6. There is no identifiable dispute between the parties as to the future liability since there have been no determinations made. There is no basis to assess the use of clinical notes or Dr Cawthorne's opinion, to achieve justice in a dispute that has not yet occurred.
7. Accordingly, there is no basis for finding special circumstances exist for the release of the clinical notes of the two reports of Dr Cawthorne.

Some documents not subject to the undertaking in the hands of the Applicant.

1. However, it was noted that in the hands of the Applicant, who obtained Dr Cawthorne's two reports of 5 and 11 March 2025, it is not subject to the implied undertaking since the opinion formed did not, in fact, rely upon information derived from the provisions of any summonsed clinical notes or other materials acquired by reason of the compulsory processes of the Tribunal. Given the fact that the Applicant is content for the Respondent to use such materials, it only requires the Applicant to provide a copy voluntarily to the Respondent and, thereby, the Respondent will have received the report by means other than the Tribunal's compulsory processes.

Respondent: Mr Michael Snell, McInnes Wilson Lawyers.

[1] (1992) 38 FCR 217, 225