(2) the respondent may use the documents, exhibits or copies referred to in paragraph (1) above in order to investigate and, if so advised, defend the claims made against it by the applicant in proceedings numbered S 200600223 and 2007/1885 in this tribunal; and

(3) except as provided for in paragraphs (1) and (2) above, the respondent is not released from its implied undertaking not to use for any collateral purpose, and not to communicate to any third party, such documents or exhibits.

PRACTICE AND PROCEDURE - exhibits and witness statements tendered at earlier hearing of within proceedings - implied undertaking by Comcare not to use documents produced under summons or exhibits for collateral purpose - subsequent proceedings brought by applicant against Military Rehabilitation and Compensation Commission (MRCC) and other Commonwealth agencies arising out of similar events - application by MRCC to be released from implied undertaking - whether implied undertaking binding on MRCC - whether MRCC had become a party to proceedings in AAT under transitional provisions - matters relevant to exercise of discretion to release from implied undertaking - bias - no reasonable apprehension of bias - AAT not functus officio - application granted.

Safety, Rehabilitation and Compensation Act 1988 (Cth), s 144

Administrative Appeals Tribunal Act 1975 (Cth), s 2A and 33(1AA)

Caboolture Park Shopping Centre Pty Ltd (In liq) v White Industries (Qld) Pty Ltd [1993] FCA 471; (1993) 45 FCR 224

Chamberlain v Deputy Commissioner of Taxation [1988] HCA 21; (1988) 164 CLR 502

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

Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488

Patrick v Capital Finance Corp (Aust) Pty Ltd [2003] FCA 436

Re Le and Secretary, Department of Education, Science and Training [2006] AATA 208; (2006) 90 ALD 83

Re PJ Beaconsfield Gold NL and Australian Securities Commission; Otter Gold NL & Anor (1998) 54 ALD 109

Spalla and Ors v St. George Motor Finance Ltd and Ors [2004] FCA 1014; (2004) 209 ALR 703

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

Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7; (1988) 164 CLR 387

1. In this matter the tribunal reviewed a decision arising out of a claim for compensation for paranoid psychosis and post-traumatic stress disorder (PTSD) made by the applicant in respect of his service with the Australian Army between October 1980 and July 1982. The tribunal delivered its decision on 6 May 2004, after a lengthy hearing during which it received a large number of exhibits. It affirmed a decision of a Comcare review officer that Mr Rana was not entitled to compensation in respect of the conditions which were the subject of his claim.
2. By a letter dated 6 December 2007 from the Australian Government Solicitor acting for the respondent, the Military Rehabilitation and Compensation Commission (MRCC), requested the tribunal to revoke a confidentiality order made on 16 May 2002 pursuant to s 35 of the Administrative Appeals Tribunal 1975 (Cth) (AAT Act). The MRCC further requested the tribunal to release it from its implied undertaking not to communicate to third parties documents obtained in connection with the proceedings to the extent necessary to allow disclosure of the material to other Commonwealth agencies involved in other proceedings subsequently brought by the applicant, Ranjit Rana, arising out of his service in the Army.
3. The MRCC referred in particular to four other proceedings that have been brought by Mr Rana since the tribunal decided the present proceedings, namely:

(a) Re Rana and Repatriation Commission, AAT no. S 200500033, being an application for review of a decision by the Repatriation Commission to reject Mr Rana's claim for pension under the Veterans' Entitlements Act 1986 (Cth) in respect of paranoid schizophrenia and diabetes because he was not a "member of the Forces" as relevantly defined, on the grounds that he had not served for three years, and had not been discharged from the Army by reason of physical or mental incapacity to perform duties (the Repatriation Commission proceedings);

(b) Re Rana and MRCC (AAT no. S 200600223), being an application by Mr Rana for review of a decision of the Commission to reject his claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) for paranoid schizophrenia attributed to certain events that occurred during his service with the Australian Army (the schizophrenia proceedings);

(c) Re Rana and MRCC (AAT matter no. 2007/1885), being an application by Mr Rana for review of a decision to reject his claim for compensation under the SRC Act for diabetes attributed to certain events that occurred during his service with the Australian Army (the diabetes proceedings); and

(d) Rana v Commonwealth of Australia and Brigadier Orme as Delegate of the Chief of Army (Federal Court No. SAD 111 of 2007), being an application alleging discrimination and negligence by the Commonwealth and the Chief of Army in respect of the refusal by a delegate of the Chief of Army to vary the reason for Mr Rana's discharge from the Army (the Federal Court proceedings).

1. It is also relevant to refer to an earlier application decided by this tribunal in 1988, involving the review of a claim for compensation by Mr Rana for a psychiatric condition (personality disorder and/or an adjustment disorder or reactive depression) as a result of his employment in the Army (the "1988 proceedings"). The tribunal in that matter affirmed a determination that Mr Rana had not been incapacitated for work since April 1985 as a result of the contraction and/or aggravation of an injury arising out of or in the course of his employment with the Army.
2. The Repatriation Commission also applied, in the Repatriation Commission proceedings, for relief from its implied undertaking so as to enable it to disclose to other Commonwealth agencies material that it receives in relation to that application for the purpose of legal proceedings involving Mr Rana. That application and the application by the MRCC in the present proceedings for relief from its implied undertaking involve similar issues, and I heard the two applications at the same time. I will also deliver my decision in the Repatriation Commission proceedings this day.
3. After the hearing of the application for release from the implied undertaking, I convened a directions hearing to consider whether the MRCC should become a party to the proceedings, having regard to the enactment of Part XI of the SRC Act. This confers on the MRCC the function of managing claims that relate to defence service occurring before the commencement (on 1 July 2004) of the Military Rehabilitation and Compensation Act 2004 (Cth) (MRC Act). At that directions hearing, Mr Rana objected to my hearing the application on the grounds that I would not be impartial, because I was the presiding member of the tribunal when it decided to affirm the reviewable decision in the present proceedings, and the tribunal made adverse findings as to his credit. It was not clear whether Mr Rana objected to my determining the issue relating to the joinder of the MRCC as a party to the proceedings, or whether he objected to my deciding the application for release from the implied undertaking. I will assume, however, for the purpose of dealing with this aspect that Mr Rana's objection extended to my deciding the application for release from the implied undertaking.
4. In Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488, at [11], the High Court of Australia said that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias is whether "a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide." This approach has been followed in this tribunal, where parties have raised issues of apprehended bias.
5. The application for release from the implied undertaking (as well as the question of whether the MRCC should become a party) are not issues where my decision will in any way entail Mr Rana's credibility. The purpose of the application is to enable documents to be released to other parties so that they can more fully investigate other claims being made against them by Mr Rana. It is of course quite possible that if the material involved is released, the other parties may use some of it to endeavour to impugn Mr Rana's credibility in relation to his other claims. However, if any such issue arises in connection with the other claims, it will need to be determined by the decision-makers who deal with those claims. Mr Rana's credibility is not a matter that I will need to decide for the purpose of the application now before me. I consider that there is no reasonable basis for any apprehension that I might not be impartial in determining the current application. I decline to disqualify myself.
6. I am also concerned that Mr Rana raised his objection only after the parties had completed their arguments on the application for release from the implied undertaking. It would be administratively inconvenient for me to withdraw from the hearing of the application at this late stage; that would mean that the matter would be delayed until it could be re-heard before another member, and that would be inconsistent with the objectives of the tribunal in s 2A of the AAT Act, which requires this tribunal to pursue the objective of providing a mechanism of review that (amongst other things) is economical and quick.
7. The application for release from the implied undertaking has been made by the MRCC, not Comcare. The documents in question were obtained prior to or during the hearing in this tribunal, that is before the commencement of the MRC Act, and when they were obtained, the respondent was Comcare. However, it is clear that the implied undertaking extends to a stranger who comes into possession of documents but was not a party to the proceedings in which the documents were obtained: Patrick v Capital Finance Corp (Aust) Pty Ltd [2003] FCA 436, at [16]; Spalla and Ors v St. George Motor Finance Ltd and Ors [2004] FCA 1014, at [40].
8. Section 144 of the SRC Act includes transitional provisions in respect of claims for compensation made under that Act before the commencement of the MRC Act. Section 144(1)(b) provides in effect that in certain circumstances (including where claims were made before the commencement of the MRC Act) anything done by Comcare that was in force immediately before the commencement of the MRC Act is taken after that date to have been done by the MRCC in relation to the claim.
9. Section 144(3) of the SRC Act is also relevant. It provides as follows:

any proceedings (including proceedings under Part VI) to which Comcare is a party are brought in relation to a determination made, or thing done, by Comcare before the (MRC Act) commencement date; and

_those proceedings have not been concluded before that date;_proceedings may be continued on or after that date. For the purpose of the proceedings as so continued, the MRCC replaces Comcare as a party to the proceedings."

1. As at the commencement date of the MRC Act, the within proceedings had not concluded, because Mr Rana had appealed to the Federal Court from the Tribunal's decision pursuant to s 44(1) of the AAT Act. Mr Rana was therefore continuing the proceedings by pursuing the appeal (even though following the commencement of the MRC Act no steps were taken in the proceedings before this tribunal pending the outcome of the appeal); and by virtue of the last sentence of s 144(3), the MRCC replaced Comcare as a party to the proceedings.
2. For all of the above reasons, I am satisfied that it is appropriate for the MRCC to apply for release from the implied undertaking, and that as the MRCC is a party to the proceedings I have power to release the MRCC from the undertaking.

1. Counsel for the MRCC, Ms K Bean, pointed out that the confidentiality order that I had previously made in the present proceedings had been revoked by consent, so that to that extent issues of confidentiality no longer apply. However, because there appeared to be some doubt on the authorities as to whether the implied undertaking extended to exhibits that were tendered in open court (or in open proceedings in this tribunal) the MRCC requested that the release from the undertaking should extend to exhibits.
2. Initially the MRCC applied to release not only documents produced to the tribunal under summons and the exhibits tendered during the hearing, but also any additional material which this tribunal had directed to be provided to it in the course of the proceedings.
3. As to the last category of material, Mr Rana submitted that in some cases, the tribunal had decided that the additional material produced was not relevant to the issues raised in the present proceedings. He submitted that I should not now relieve the parties from the undertaking as to that category of material, and he relied on Chamberlain v Deputy Commission of Taxation [1988] HCA 21; (1988) 164 CLR 502, and Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7; (1988) 164 CLR 387 at 433 per Brennan J and at 446 per Deane J.
4. Mr Rana further opposed the application generally on the grounds that the documents produced under summons, the exhibits and the additional documents were confidential, and their disclosure to third parties might cause embarrassment to him or others associated closely with him.
5. He further pointed out that he had voluntarily given the respondent access to the transcript of the 1988 proceedings, and he considered the applications for the further material to be in the nature of a fishing expedition.
6. Mr Rana further submitted that I should refuse the application having regard to principles of Anshun estoppel, and he also referred to the principle that the Crown cannot by representation expand its statutory powers or prevent the performance of a statutory duty or preclude or fetter the exercise of a statutory discretion.
7. Finally, Mr Rana referred to applications made by the Repatriation Commission in two actions that he has brought in the Federal Court against the University of South Australia, namely actions number SAD 826 of 2003 and SAD 102 of 2005 (the "University of SA proceedings"). The Repatriation Commission wished to inspect and copy certain affidavits filed in those proceedings, but as it was not a party, it required leave to do so pursuant to Rule 46 of the Federal Court Rules. Mr Rana asked me to read the transcript of the Repatriation Commission's application, and to adopt the approach of Lander J who heard the application. As I understood his argument, he contended that his Honour's approach supported the following propositions:

(a) I should take into account that Mr Rana was unrepresented;

(b) it was necessary for me to determine for myself whether or not to grant the release from the implied undertaking sought by the MRCC in the present proceedings, and this would be so even if Mr Rana consented to the release; and

(c) I should be reluctant to grant the release if this would expose Mr Rana to the risk of criminal proceedings.

1. It is well established that there is an implied undertaking by each party to legal proceedings not to use any document disclosed in the course of discovery in those proceedings for any purpose other than in relation to the litigation in which it is disclosed: Esso Australia Resources Ltd v Plowman & Ors (1995) 183 CLR 10 at 32, per Mason CJ. It has been held that that obligation extends to answers to interrogatories, and also to witness statements prepared for use in legal proceedings: see the authorities reviewed by Wilcox J in Springfield Nominees Pty Ltd v Bridgelands Securities Limited (1992) 38 FCR 217.
2. In Re PJ Beaconsfield Gold NL and Australian Securities Commission; Otter Gold NL & Anor (1998) 54 ALD 109, Deputy President McDonald held that the implied undertaking extended to proceedings in this tribunal, and that it applied to documents produced to the tribunal under summons, statements by witnesses, and oral evidence given by two witnesses who gave evidence in the hearing before the tribunal in that case. The Deputy President's decision contains a very helpful review of a number of earlier judgments of Australian courts and the House of Lords. He pointed out at [14] that the undertaking is given to the court (or in the case before him, the tribunal), and it might not be waived by consent. He cited authority to the effect that the rationale for the implied undertaking is that private rights of confidentiality should not be disturbed except to the extent necessary for the purpose of the administration of justice.
3. As appears from the authorities reviewed in Re Beaconsfield at [21] - [26] parties may be released from the implied undertaking where "special circumstances" exist. In Springfield Nominees Wilcox J said, at page 225:

"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 is not usually present. The matter then becomes one of the proper exercise of the court's discretion, many factors being relevant."

His Honour then proceeded to list a number of relevant factors, having pointed out however that it was not possible or desirable to propound an exhaustive list of those factors. The last factor to which he referred, which he said was perhaps the most important of all, was the "likely contribution of the document achieving justice in the second proceeding."

1. I have decided that I should exercise my discretion so as to relieve the MRCC from the undertaking insofar as it relates to the documents produced in these proceedings under summons and the exhibits tendered in the proceedings. The following factors have led me to this decision.

(a) The order for confidentiality has already been revoked, as mentioned above, and as a result, there will be no prejudice to Mr Rana if I grant the MRCC's application.

(b) The other Commonwealth agencies to which information may be provided following this tribunal releasing the MRCC from its implied undertaking will themselves be subject to an implied undertaking to retain the material that they receive in confidence, and not to disclose that information for any purpose otherwise than in relation to the litigation in which it is disclosed. Further, they would be subject to obligations of confidence under the privacy principles provided for in the Privacy Act 1984 (Cth). If Mr Rana is not satisfied that those matters protect his position sufficiently then he could make an application in the relevant proceedings for orders for confidentiality, and of course the Federal Court and this tribunal have adequate powers to make appropriate orders to protect the confidentiality of any material provided.

(c) The request for release from the implied undertaking is to enable other Commonwealth agencies to carry out their statutory obligations to investigate claims being made against them by Mr Rana. It is in the public interest that those claims should be fully investigated. This will be facilitated if there is a release from the undertaking.

(d) Mr Rana's claims relate to events that happened more than twenty-five years ago. From my own knowledge of the present proceedings (where, as I have said, I was the presiding member at the hearing), there were considerable difficulties and some delay in obtaining historical information relevant to the claim that gave rise to the proceedings. Under s 2A of the AAT Act this tribunal is under an obligation, in carrying out its functions, to pursue the objective of providing a mechanism of review that is "fair, just, economical, informal and quick". There is likely to be a saving in time and expense if the respondents in the other four proceedings are provided with the documents that the MRCC seeks to disclose, instead of leaving the respondents in the four other proceedings to investigate the relevant facts separately for themselves.

(e) The parties to the other pending proceedings would be able to compel the MRCC to disclose relevant information if they issued summonses to produce pursuant to s 40(1C) of the AAT Act. The MRCC would then be obliged to produce relevant documents in response to such a summons, notwithstanding the implied undertaking arising from the receipt of the material in the course of the within proceedings: see Esso, supra, at 33 per Mason CJ, where his Honour said that the implied undertaking "must yield to inconsistent statutory provisions and to their requirements of curial process in other litigation, eg discovery and inspection ...". However, it is inappropriate that the parties to the other proceedings should be put to that expense when that can be avoided by a release from the implied undertaking.

(f) The claims in the four other proceedings relate to circumstances relevant to Mr Rana's service with the Australian Army during the period that was under consideration in the within proceedings, and to his medical condition at that time, and to questions as to the effect of events occurring during his Army service on his subsequent medical conditions. Extensive investigations were carried out for the purpose of the present proceedings, and these included reference to the evidence adduced and documents provided in connection with the 1988 proceedings. It is in the interests of justice that that material should be available to the agencies involved in investigating the claims that are the subject of the four proceedings in question, so that the tribunals or Court hearing those other proceedings will be in a position to be as fully informed as possible as to the relevant factual issues.

(g) Apart from the agencies' statutory obligation to investigate claims, the agencies are under a further statutory duty under s 33(1AA) of the AAT Act to use their best endeavours to assist this tribunal to make its decision in relation to proceedings before it. The agencies will be assisted in fulfilling this obligation by releasing the MRCC from its implied undertaking.

(h) The documents are not being sought by a third party in order to use them for its own purposes, or to enable it to bring proceedings against Mr Rana; rather, the respondents to the other proceedings are merely seeking access to the documents to enable them to investigate claims brought against them, which claims have been initiated by Mr Rana.

1. I cannot see any basis for Mr Rana's argument that a release from the implied undertaking would in some way expand the statutory power or affect the statutory obligations or discretions of Comcare, the MRCC or the respondents to the other proceedings in question.
2. It may be that not all of the material which may be disclosed as a result of the MRCC being released from its implied undertaking will be relevant to the issues that will arise in the other proceedings. It will be necessary for the respondents in the other proceedings to determine the relevance or otherwise of the material after they have completed their investigations. Any decision that this tribunal previously made in the present proceedings as to relevance will not, of course, be binding on the tribunal or Federal Court in the other proceedings, and would not give rise to estoppel. Further, there is no basis for Mr Rana's contention that I should not release the MRCC from the implied undertaking by virtue of Anshun estoppel; the issue of whether or not such a release should be granted did not arise at the time of the hearing of the present proceedings; indeed, the four other proceedings referred to in paragraph 3 above had not been instituted at the time of the hearing of the present proceedings.
3. During the course of Ms Bean's argument I expressed reservations regarding the requested release from the undertaking insofar as it related to additional documents (other than exhibits and documents produced under summons) that the tribunal had directed to be provided to it. Ms Bean did not refer to any particular direction or to the material provided in response to it, or to the potential relevance of that material to the other proceedings, and she did not press this aspect of her application.
4. However, it was contended by counsel for the Commission, Dr C Bleby, that unless the Commission could inspect the additional documents, it was not in a position to assess their relevance, and the Commission was only seeking the additional documents at this stage in order to investigate the claims made against it.
5. I do not think it appropriate at this stage to release the MRCC from its implied undertaking with respect to the additional documents. As I understand it, Mr Rana has provided the Commission with a transcript of the 1988 proceedings. In addition, as a consequence of the conclusion I have reached, the Commission will receive the documents produced under summons and the exhibits tendered in the within proceedings (or copies of them). Further, because the confidentiality order has been revoked by consent, the Commission will be able to read the transcript of the evidence given in the present proceedings, including witness statements which were adopted by the various witnesses who gave oral evidence.
6. In those circumstances, the Commission will have access to a very large volume of material. It will also have access to directions made by the tribunal during the hearing of the present proceedings. It is not clear to me at present that the directions or material provided in response to the directions will be of relevance to the investigation of the claims against the Commission. However, if the Commission, after it has received material from the MRCC as a result of my direction to release it from its implied undertaking, still wishes to obtain any additional documents provided as a result of a direction by the tribunal, it could either again ask that the MRCC be released from its implied undertaking in respect of some particular additional document(s), or it could issue a summons to produce under s 40(1A) of the AAT Act. Any issues that might arise as to relevance or confidentiality can then be dealt with at that time.
7. As requested by Mr Rana, I have read the transcript of the application before Lander J in the University of SA proceedings. As a general proposition, I think that it is not necessarily appropriate for parties to rely upon remarks made by judges in the course of argument, since such remarks are often provisional, and can be made merely to explore the argument or to test its correctness. Furthermore, an application under Rule 46 of the Federal Court Rules should not be equated with an application for relief from the implied undertaking, since matters relevant to the exercise of discretion under Rule 46 will not necessarily be the same as the matters that this tribunal may take into account having regard to the breadth of its discretion under s 33(1) of the AAT Act. However, whilst I have the above reservations as to the basis of Mr Rana's contentions, I think that to the extent that his Honour's approach can be ascertained from the transcript, it was consistent with the propositions for which Mr Rana contended, as set out in paragraph 21 above, and I will approach the present matter in accordance with those propositions.
8. As to the proposition in subparagraph 21(c) above, I do not think that the release of the MRCC from the implied undertaking will necessarily expose Mr Rana to criminal proceedings. The material that will be available to the respondents in the other proceedings, including the Repatriation Commission, will include certain medical reports exhibited to the affidavits that were the subject of the application before Lander J. The Repatriation Commission asserts that those reports are forgeries. As I understand it, Mr Rana does not dispute this, but says that they were forged by one or more third parties, and not by him. If Mr Rana is cross-examined in the Repatriation Commission proceedings about any asserted involvement on his part in connection with the forged medical reports, he could refuse to answer questions on the grounds of the privilege against self-incrimination; it would then be necessary for the tribunal hearing the proceedings to rule on the objection. It was not suggested that any other documents which may be made available to the MRCC will expose Mr Rana to a risk of criminal proceedings against him. In my view, it does not follow that Mr Rana will be exposed to criminal proceedings if the MRCC is released from the implied undertaking.
9. I add for the sake of completeness that I am satisfied that whilst this tribunal has completed its review of the reviewable decision that gave rise to these proceedings, and has therefore exhausted its statutory function as far as that process is concerned, it is not functus officio in considering the application for release from the implied undertaking, as that is a separate incidental procedural matter that can be dealt with as an incident to the tribunal's statutory power to issue summonses and to regulate its own procedure : see ss 33 and 40(1A) of the AAT Act; Caboolture Park Shopping Centre Pty Ltd (In liq) v White Industries (Qld) Pty Ltd [1993] FCA 471; (1993) 45 FCR 224, at 234 - 236 (relating to an application for costs against the solicitors for a party on an indemnity basis where final judgment had been entered); and Re Le and Secretary, Department of Education, Science and Training [2006] AATA 208; (2006) 90 ALD 83 at [12] - [15] (where Deputy President Forgie made a confidentiality order under s 35 of the AAT Act some time after the tribunal had determined an application).
10. In case any difficulty arises from the form of the direction as set out in the succeeding paragraph, I grant liberty to apply within 7 days from the publication of these reasons.

(1) the respondent may disclose the documents produced under summons and the exhibits tendered in the within proceedings, or copies thereof, to the Repatriation Commission, the Commonwealth of Australia and Brigadier Orme, for the purpose of those parties using such documents, exhibits or copies in order to investigate and, if so advised, defending the claims respectively made against them by the applicant in proceeding numbered S 200500033 in this tribunal and in action number SAD 111 of 2007 in the Federal Court of Australia;

(2) the respondent may use the documents, exhibits or copies referred to in paragraph (1) above in order to investigate and, if so advised, defend the claims made against it by the applicant in proceedings numbered S 200600223 and 2007/1885 in this tribunal; and

(3) except as provided for in paragraphs (1) and (2) above, the respondent is not released from its implied undertaking not to use for any collateral purpose, and not to communicate to any third party, such documents or exhibits.

Signed: .....................................................................................

Solicitor for the Respondent Australian Government Solicitor