IMPLIED UNDERTAKING - application for release by both parties from Harman Obligation - release in respect of certain documents obtained by summons from non-parties - consideration of special circumstances justifying release - factors to be considered in respect of exercise of discretion - claimed purpose to make determinations accurately and quickly in relation to claims and requests under the SRC Act - collateral or ulterior purposes - absence of related proceedings in another court - purposes of making determinations in respect of future claims do not constituted special circumstances justifying release from undertaking - application for release from implied undertaking refused.

IMPLIED UNDERTAKING - application for release by both parties from Harman Obligation - release in respect of certain documents obtained by summons from non-parties - whether consent of the parties for release of documents of non-parties to the proceedings has any relevance to the exercise of the Tribunal's discretion.

Administrative Appeals Tribunal Act 1975 (Cth)

Administrative Review Tribunal Act 2024 (Cth)

Safety, Rehabilitation and Compensation Act 1988 (Cth)

Comcare v DSLB [2025] FCAFC 13

Crest Homes Plc v Marks [1987] AC 829

Dagi v Broken Hill Proprietary Co Ltd [1996] 2 VR 567

Deputy Commissioner of Taxation v Karas [2012] VSC 143

Eltran Pty Ltd v Westpac Banking Corporation (1990) 25 FCR 322

Esso Australia Resources Ltd v Plowman (1994) 183 CLR 10

Gavan v FSS Trustee Corporation [2019] NSWSC 667

Hammersley Iron Pty Ltd v Avon Francis Lovell & Ors (1998) WASCA 133

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

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

Lees v Comcare [1999] FCA 753; (1999) 56 ALD 84

Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3; (2005) 218 ALR 283

Liu and Comcare [2004] AATA 617; (2004) 79 ALD 119

Northbuild Construction Pty Ltd v Discovery Beach Project Pty Ltd (No 4) (2011) 1 Qd R 145

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

Re Marnotta Pty Ltd and Secretary, Department of Health and Ageing [2004] AATA 800

Re Ellercamp and Comcare [2025] ARTA 637; (2025) 186 ALD 301

Riddick v Thames Board Mills Ltd [1977] QB 881

Slea Pty Ltd v Connective Services Pty Ltd [2017] VSC 706; (2017) 53 VR 161

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

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

Stokes v Toyne [2021] NSWSC 1049

Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253

1. At the conclusion of this review proceeding, the parties asked the Tribunal for permission to use certain documents obtained during the proceeding for the stated purpose of the future management of Mr Sewell's ongoing claim entitlements. In the joint application, the parties offered reasons in support such as, 'to avoid duplication, unnecessary delay and additional costs in obtaining medical records provided under summons in this proceeding.'
2. The documents that are sought are medical records obtained from the Southbank Medical Clinic, Ramsay Psychology Cairns (Dr Elizabeth Buikstra) and Associate Professor Terence Bartholomew. The all relate to various attendances by Mr Sewell, the compensation Claimant, on these practitioners and the notes made as well as various test results, letters to and from specialists and the like.
3. It may seem odd to some observers that any difficulty should arise where the claimant consents to his own medical records being made available to Comcare for the stated purpose of managing his claim and yet there is a significant problem that relates to the confidentiality of those records and the limits to which either party's consent is relevant.
4. This application raises several questions to be determined:

(a) To what extent are the parties obliged to maintain confidentiality over certain documents, and the information derived from such documents, once a proceeding is completed? > > (b) What is a permissible use of the confidential documents or information derived from such documents and when does use become an impermissible 'collateral' purpose? > > (c) What special circumstances exist for the Tribunal to release a party, or parties, from the obligation of confidentiality? > > (d) Whether, and to what extent, the parties' consent is relevant to the release from the obligation of confidentiality where the documents are obtained from a source that is not a party to the proceeding. > > (e) Whether other statutory obligations override the obligation of confidentiality in the present case.

The obligation of confidentiality, 'implied undertaking', 'Hearne v Street obligation' or 'Harman Obligation'

1. The documents in question are not the documents of either party, but of medical practices who have formulated such notes to aid the diagnosis and treatment of Mr Sewell's various medical conditions. The documents, and the information derived from those documents, became available to Mr Sewell and Comcare, because the former AAT compelled those practices to produce. The compulsory process in question is the use of the summons power under section 40A of the former Administrative Appeals Tribunal Act 1975 (AAT Act).[1]
2. The Tribunal will issue such summonses where it might reasonably consider that the documents sought will 'throw light on some of the issues in the principal proceedings' (see Re Marnotta Pty Ltd and Secretary, Department of Health and Ageing [2004] AATA 800).[2] That is not to say that such documents will ever come into evidence. From experience, the vast bulk of such documents rarely form part of the evidence going to the issues before the Tribunal. Comcare implicitly recognised that because in the course of the submissions in the present application, the request for release was modified in relation to the documents obtained from the Southbank Medical Centre to a selection of notes of attendance from 18 September 2023 to 14 November 2024, consisting of 12 pages only. The total number of pages of documents from that medical practice returned was more than 600 pages, most of which were clearly unrelated to any of the matters relevant to the claim for injury that was the subject of the proceedings.
3. The records of Ramsay Psychology number about 9 pages of consultation notes from 8 May 2024 to 28 August 2024. Associate Professor Terence Bartholomew's notes are handwritten, spanning the period 26 February 2024 to 8 April 2024.
4. Even so, the purpose of the proceeding was to determine the issue regarding whether Mr Sewell had suffered an injury resulting in either incapacity for work or impairment of function which entitled him to compensation pursuant to section 14 of the Safety Rehabilitation and Compensation Act 1988 (SRC Act). That limit was defined by the nature of the reviewable decision giving rise to the application for review.
5. Had the materials been sought for any other purpose, they would be regarded in law as 'ulterior or collateral' to the purposes of the proceeding and compulsory production of the documents would be an abuse of process. It should also be noted that Comcare has no power to issue a summons. That is a statutory power given only to the Tribunal or a court. One of the stated reasons for this application, that is 'to avoid ... additional costs in obtaining medical records provided under summons in this proceeding', refers to other processes for obtaining information. Those other processes were partly mentioned in the course of submissions but had not been engaged and, in any event, did not form the basis of the application in any way that the Tribunal could address.
6. The purposes for which the parties now submit they wish the documents to be used are for 'managing the Applicant's claim for compensation under the SRC Act, claim number 1304989/2.'[3] That stated purpose lacked a degree of clarity, and in the course of submissions, Comcare state that claims management is to be understood as those functions that Comcare is obliged to perform pursuant to paragraph 69(a) of the SRC Act: '... to make determinations accurately and quickly in relation to claims and requests made to Comcare under this Act.'
7. Whether the purposes of making determinations accurately and quickly in relation to claims and requests in respect of this claim are 'ulterior or collateral' to the issues in the proceedings is a question raised for consideration in this application.
8. The question is raised by the nature of the obligation that is generally referred to as the 'implied undertaking' or Harman Obligation, a name derived from the decision of the House of Lords in Harman v Secretary of State for Home Department [1983] 1 AC 280 (Harman), where a plaintiff solicitor was found guilty of civil contempt for sharing documents obtained through the court's compulsory processes with a journalist who used those documents to write a newspaper article critical of the UK Home Office. The use of those documents in such a manner was said to be a 'collateral or ulterior purpose unconnected with the proper conduct of the action' and not for the 'purposes only for trial'.[4]
9. The Harman Obligation is one that arises wherever lawful compulsory processes bring documents, or information derived from documents, that would otherwise remain private and confidential to the possession or attention of parties to a dispute. The information is only to be used for the purposes of the legal proceeding at hand and thereafter must remain confidential. It is an obligation that is not restricted to court processes, but includes commercial arbitrations conducted in accordance with law (Esso Australia Resources Ltd v Plowman (1994) 183 CLR 10) (Esso), and to Tribunal review proceedings (Otter Gold Mines Ltd v McDonald [1997] FCA 694; (1997) 76 FCR 467) (Otter Gold Mines).
10. This obligation of confidentiality is a substantive legal obligation and the High Court's frequently cited statement of the obligation from Hearne v Street [2008] HCA 36; (2008) 235 CLR 125 (Hearne) runs thus:[5]

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.

11. In that formulation, the High Court did not use the expression 'ulterior or collateral' purposes, but the more direct expression, 'any purpose other than that for which it was given'. It was an earlier decision in the High Court in Esso that the expression of 'collateral object' was referred to in connection with the obligation of confidentiality, but again with the firm injunction 'not to use any document disclosed for any purpose otherwise than in relation to the litigation in which it is disclosed'. Mason CJ stated:[6]

In relation to documents produced by one party to another in the course of discovery in proceedings in a court, there is an implied undertaking, springing from the nature of discovery, by each party not to use any document disclosed for any purpose otherwise than in relation to the litigation in which it is disclosed. Over a century ago, Bray on Discovery stated: > > "A party who has obtained access to his adversary's documents under an order for production has no right to make their contents public or communicate them to any stranger to the suit ... nor to use them or copies of them for any collateral object ... If necessary an undertaking to that effect will be made a condition of granting an order." > > Because an undertaking is implied, it has not been the practice to condition the making of orders in that way. The implied undertaking is subject to the qualification that once material is adduced in evidence in court proceedings it becomes part of the public domain, unless the court restrains publication of it. > > It would be inequitable if a party were compelled by court process to produce private documents for the purposes of the litigation yet be exposed to publication of them for other purposes. No doubt the implied obligation must yield to inconsistent statutory provisions and to the requirements of curial process in other litigation, eg discovery and inspection, but that circumstance is not a reason for denying the existence of the implied obligation. [Footnotes deleted]

12. It is commonly 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. Secondly, the obligation of confidentiality comes to an end when, and if, the documents are received into evidence. That is a consequence of the principle of open justice, enshrined in the Tribunal's practice by section 69 of the ART Act, entitled 'Hearings to be in public unless practice directions or Tribunal order requires otherwise'.
13. The documents that are subject to the joint application of the parties in this case were obtained from non-parties to the proceeding. In the hands of both Mr Sewell and Comcare, these are subject to the Harman Obligation. While the statements of the obligation frequently refer to documents that one party is compelled to disclose to the opposing party, the obligation extends to the documents obtained from a non-party to the litigation by way of summons or subpoena.[7]
14. The obligation, as noted above by Mason CJ in Esso, yields to 'inconsistent statutory provisions and to the requirements of curial process in other litigation'.
15. Further, these documents were never received into evidence because there was no hearing required to conclude the review proceeding. Shortly before the hearing of this application, the parties reached an agreement as to the terms of a decision resolving the principal issue in the proceedings regarding the compensability of a claimed injury identified as 'adjustment disorder'. The parties are to be congratulated on achieving this outcome without the need for a hearing of the evidence and submission to the Tribunal's decision.
16. A consent order was made on 29 August 2025, following receipt of the written agreement pursuant to section 103 of the Administrative Review Tribunal Act 2024 (ART Act). The terms of the consent decision are as follows:

The parties having reached agreement and having signed terms and the Tribunal being satisfied that a decision in the terms of agreement or consistent with those terms would be within the powers of the Tribunal; pursuant to section 103 of the Administrative Review Tribunal Act 2024 (Cth), the Tribunal:

17. Sets aside the reviewable decision dated 11 July 2024.
18. In substitution for the decision set aside, the Tribunal decides that Comcare is liable to pay compensation to the Applicant pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 ('SRC Act') in respect of an injury, identified as 'adjustment disorder', with a date of injury of 25 January 2024 for the purposes of subsection 7(4) of the SRC Act.
19. While this is a joint application, the burden of the argument fell mostly on the respondent. I was provided with a detailed submission prepared by Comcare's counsel concerning the release from the undertaking which ran to 10 pages and citing 25 decisions from different Federal or State superior courts as well as English courts. This was supplemented by oral submissions and the hearing on 4 September 2025 continued for two and a half hours.
20. The submission advanced various arguments:

(a) Firstly, the obligation might be waived, where the affected party with an interest in their own privacy might consent to the grant of release from the obligation without further processes required.[8] This argument raises the extent to which one party's consent to the release of their opponent's obligation has relevance to the Tribunal's decision in the present case. > > (b) Secondly, the uses for which the documents are intended to be made in the making of determinations in respect of claims and requests in relation to the 'adjustment disorder' injury should not be viewed as a 'collateral' to the present review proceeding. > > (c) Thirdly, recognising the Harman Obligation yields to inconsistent statutory provisions, there may be such statutory provisions in the form of sections 58 and 59 of the SRC Act and section 23 of the ART Act which may provide a suitable justification for release. > > (d) Finally, if the Harman Obligation is found to apply, there are sufficient special circumstances to justify releasing the parties from their obligation of confidentiality.

Waiver or consent by a party has no relevance to release from confidentiality of documents of a third party

1. Comcare's submission relied upon various court decisions where one party's waiver of rights to confidentiality over their own documents was central to the displacement of the obligation of confidentiality. I have noted above that the Harman Obligation is often defined in relation to documents produced by one party to another due to discovery processes in civil proceedings, but it extends to much wider processes where documents and information comes into the hands of parties by compulsory court processes.
2. The Tribunal does not have the same discovery procedures of a court and the documents subject to the application were not provided by one party to another. The documents in the present case were provided by third parties, medical practices, and only came into the hands of both Mr Sewell and Comcare by compulsory process of the former Tribunal's summons. The documents and any information derived from those documents are protected by the Harman Obligation.
3. The cases relied upon by Comcare in its submission all refer to the waiver or consent to release from confidentiality of documents of the party compelled to produce them because of court processes of discovery.
4. In Dagi v Broken Hill Proprietary Co Ltd [1996] 2 VR 567 (Dagi) the court considered the rationale behind the confidentiality undertaking but noted that the 'obligation is capable of modification by consent or waiver'.[9] In that case, the obligation of confidentiality was considered in respect of two expert reports prepared for the plaintiff PNG residents in litigation for damage caused by the defendant mining company operations. The reports were prepared using materials supplied by the defendant on discovery. The plaintiffs wanted to be released from the obligation in relation to the reports to provide them to the PNG government inquiry into the circumstances of the damage to land. Initially, the court refused, but after the defendant company released certain passages of the reports that had been prepared for the plaintiffs to the PNG Prime Minister, the plaintiffs successfully obtained release from the obligation. It was found that the defendant mining company had breached its obligation of confidentiality by disclosing selected parts of the reports to the PNG Prime Minster. Waiver, or consent to release, was not the basis for the decision in Dagi but the court's finding that special circumstances existed to justify releasing the plaintiffs from their obligation.
5. The statement in Dagi concerning consent or waiver was referred to in argument in Spalla v St George Motor Finance Ltd [2004] FCA 1014; (2004) 209 ALR 703 (Spalla) to support an application for a stay of proceedings as an abuse of process. The plaintiffs had commenced an action for damages for malicious prosecution and charging conversion on the part of the defendant motor finance company, St George. The plaintiffs had earlier been charged in separate proceedings by the Director of Public Prosecutions (DPP) following an investigation by the Australian Securities and Investments Commission (ASIC) who had obtained documents from St George. Some of those documents were provided voluntarily while others were obtained using compulsory powers provided under the Australian Securities and Investments Commission Act 2001 (Cth) (the ASIC Act). During the committal proceedings, those documents were disclosed to the plaintiffs, though none were adduced in evidence or disclosed in open court. The plaintiffs were subsequently acquitted. Counsel for St George sought a stay in the damages proceeding while the plaintiffs further sought to be released from the implied obligation of confidentiality in respect of knowledge obtained from documents received from the DPP that had found their source in St George's dealings with ASIC. The plaintiffs raised the authority of Dagi concerning waiver of the obligation of confidentiality, but the court could not identify circumstances that might constitute waiver of the obligation in that case, and in any event, the documents concerned were provided to ASIC prior to the coming into existence of the implied undertaking.
6. Comcare further referred to Hammersley Iron Pty Ltd v Avon Francis Lovell & Ors (1998) WASCA 133 in support of its waiver argument. However, in that case, the court was not persuaded that the alleged conduct relied upon by the party could amount to a waiver of the implied undertaking. It was critical to understand that the Harman Obligation is one that is owed to the court, not the adversary. In the judgment of Anderson J (with whom Pidgeon and Ipp JJ agreed) it was stated:

The undertaking is an obligation owed to the Court, not merely to the adversary_: Complete Technology Pty Ltd v Toshiba (Australia) Pty Ltd_ [1994] FCA 1314; (1994) 53 FCR 125 at 132; Prudential Assurance Co Ltd v Fountain Page Ltd [1991] 1 WLR 756 at 764-5. It is generally for the Court to control, modify or release a party from the implied undertaking. However, where there has been a clear and informed consent by the adversary to a publication or collateral use of a document discovered by him the Court will treat the obligation arising out of the undertaking as having been waived and will not enforce the undertaking_: Dagi v Broken Hill Proprietary Company Ltd_ [1996] 2 VR 567 at 572. But where no such consent has been given the dispensing power resides in the Court and it will be exercised only when special circumstances appear: Esso Australia Resources (supra) at p37; Bailey v Australia Broadcasting Corporation [1995] 1 Qd R 476 at 848; Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217 at 224-5; Bibby Bulk Carriers Ltd v Cansulex Ltd [1989] 2 WLR 182 at 185-194; Sybron Corporation v Barclays Bank Plc [1985] 1 Ch 299 at 322.

7. The documents in that case were those of the plaintiff mining company who pursued an action for damages and injunctions from defendant unions and their officials over industrial action. During that proceeding, discovery of documents was ordered and the plaintiff duly discovered various documents that were inspected by the defendants. Several of the discovered documents were then published by persons acting on behalf of the unions and the plaintiff pursued an action for civil contempt. The publications of the documents in breach of the Harman Undertaking were documents of the plaintiff, not some person or entity that was a stranger to the proceeding.
8. The next case raised by Comcare was that of Stokes v Toyne [2021] NSWSC 1049 (Stokes) where both Dagi and Hammersley Iron were accepted by the court to be authority for the proposition that 'consent of the producing party is sufficient to release the party in receipt of the documents from the obligations [of confidentiality] owed'.[10] However, the documents at the centre of that dispute were affidavits and expert reports which were served on behalf of one party to a proceeding though never tendered in evidence. Once again, these were not the document of a third party.
9. While one party to a proceeding, who has produced its own documents in compliance with compulsory court procedures may waive its right to confidentiality over them, that party cannot waive rights of confidentiality of a third party where documents were produced in answer to a summons. As noted by Anderson J in Hammersley Iron, the obligation is owed to the court or tribunal who compelled the production of the documents and only upon demonstration of special circumstances will the obligation of any party be released.
10. The superior courts repeatedly emphasise that release or modification of the undertaking is an exercise not undertaken lightly.[11] The limitation of invasion of privacy rights is the public policy that is the foundation for the rule. Lord Denning's judgment in Riddick v Thames Board Mills Ltd [1977] QB 881 is frequently cited:[12]

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 court 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 injustice.

11. Health and medical records are owned by the medical practitioner who created them, not the patient. They are intended to be private and used only for the purposes of guiding diagnosis and treatment of a patient. If produced to the Tribunal in answer to a summons, those records retain the confidential character up to the point where they are received in evidence in a hearing. Otherwise, as in this case, they remain confidential, and the parties continue to be bound through the Harman Obligation to maintain that confidentiality.

The claimed purpose for the documents is collateral to the purpose for which the documents were summoned

1. Comcare submitted that the purposes of guiding decision-making in respect of Mr Sewell's future 'claims and requests' ought not to be seen as 'collateral' to the purposes for which the documents were acquired through the former AAT's compulsory summons processes.
2. Ordinarily, this submission might go to the question whether the claimed purposes, though collateral, were so closely bound to the present litigation to constitute special circumstances that would justify releasing one or both of the parties from their obligation.
3. However, Comcare submitted that the prohibition on use of the documents for any purpose other than the one for which the documents were procured, as used by the High Court in Esso and Hearne, is too narrow a test to determine whether the purpose is collateral. The principal authority to which I was referred is that of the NSW Supreme Court in Gavan v FSS Trustee Corporation [2019] NSWSC 667 (Gavan) where the court found 'parallel processes' and the 'interconnectedness of the two processes' meant that the material subject to the undertaking had the capacity to inform both processes and that identification of a non-court, administrative purpose as collateral was 'too narrow and technical' an approach to the Harman Obligation.[13] The background and circumstances of this development in judicial views require some consideration.
4. The development starts with Northbuild Construction Pty Ltd v Discovery Beach Project Pty Ltd (No 4) (2011) 1 Qd R 145, before the Queensland Court of Appeal. The appellant builder had obtained documents via discovery in a separate court proceeding seeking a freezing order against the respondent, a redeveloper. There was a dispute concerning payment for work which was subject to arbitration, outside the court system, but where, as in Esso, there were obligations to discover documents between the parties and consequential obligations of confidentiality. There were various court skirmishes arising from the arbitration and in one such court dispute a freezing order was obtained by the appellant builder barring the redeveloper disposing of assets. During that dispute, the builder obtained documents which it subsequently wanted to use in a separate, but closely related, dispute concerning whether there had been an oral variation of the written contract between the parties. That was to be resolved by an expert determination within the arbitration. The Court of Appeal found the two separate processes, that is, the court awarded freezing order and the arbitral determination of the alleged variation of contract, were so close in substance and raised interlocking issues such as to constitute special circumstances in favour of release from the obligation for the purposes of the expert evaluation.[14]
5. Chesterman JA agreed with the majority in support of the release of the builder from the Harman Obligation for the specific purpose of the expert determination but went on to consider the scope of the undertaking:[15]

The scope of the undertaking may be better expressed by saying that documents produced on discovery or other compulsive process may only be used for a purpose connected with or related to the determination of the dispute in which the parties are engaged and to assist in the resolution of which the documents were required. Such a formulation extends to the determination of disputed rights other than by trial.

6. This is a formulation that differs from that used by the High Court in Hearne or Esso which excluded use of documents for purposes other than the proceeding by which they were obtained. The High Court's expression is narrower that the one Chesterman JA proposed.[16] The comments were obiter dicta and the Queensland Court of Appeal's decision does not challenge the usual rule that such use may only be made of documents upon the court's release from the undertaking on the demonstration of special circumstances.
7. The comments made by Chesterman JA in Northbuild were further taken up in Deputy Commissioner of Taxation v Karas [2012] VSC 143, where the Deputy Commissioner sought release from the obligation of confidentiality in respect of affidavits obtained in an earlier successful action for freezing orders preventing the defendant from disposing of or dealing with assets. The Deputy Commissioner wanted to use those documents in separate proceedings to enforce a judgment debt owed by the defendant and to respond to an application to review tax assessments at the former Administrative Appeals Tribunal (AAT). Forrest J identified 'a common thread - the income tax assessments are the basis for each of the various proceedings'.[17] He relied upon the judgment of Chesterman JA in Northbuild and concluded that the freezing orders (through which process the documents were obtained) were 'ancillary' to a wider dispute directly related to disputed tax assessments which were the foundation of freezing orders, the judgment in recovery as well as the AAT review and, potentially, bankruptcy proceedings in the Federal Court.[18]
8. Nonetheless, Forrest J, went on to find that special circumstances existed that warranted relief to the Deputy Commission from obligations of confidentiality over the same documents and the order of the court was in the form of an express release.
9. Coming now to Gavan, Gavan v FSS Trustee Corporation [2019] NSWSC 667 (Gavan), the case deals with an interlocutory dispute concerning a notice to produce directed to the plaintiff seeking a range of documents that were in part to be used for the respondent's case but also its 'administrative' purpose of deciding the plaintiff's entitlement to an insurance benefit. The plaintiff was a former NSW police officer from 2002 until medically discharged in July 2010 but who had not worked since March 2009 due to a range of disabilities. Five years after ceasing work, she made a clam for a Total and Permanent Disablement (TPD) benefit from her superannuation fund. The fund did not make a decision, and after some time, she commenced proceedings in the NSW Supreme Court alleging that the Fund and its insurer had constructively denied her claim and she sought declarations from the court that she was totally and permanently disabled within the meaning of the relevant provision and for the court to substitute its own decision and order the trustee to pay the lump sum TPD benefit. The insurer, MetLife, had become aware of information, mostly photographs and posts on a social media platform used by the plaintiff, which tended to support the conclusion that the plaintiff was not as disabled as claimed and did not meet the definition of total and permanent disability. MetLife denied the plaintiff's allegations made in her pleadings as to constructive denial of the claim and pleaded in defence that its assessment of liability was continuing.
10. The plaintiff wanted to be excused compliance with the notice to produce, a procedure in civil courts whereby parties are required to give documents and information relevant to the proceedings. She alleged that the defendant insurer was intending to use the documents to be produced to deny her TPD benefit claim and that this was an 'administrative decision-making process separate from [the] proceedings', and such use was not for the purpose of the proceedings and would be contrary to the Harman Obligation.[19] MetLife submitted that the documents to be produced were to be used in the proceedings but did not deny its intention to use them to continue to assess its liability to meet the, as yet, undetermined claim for TPD benefit. MetLife submitted that it was a case 'where the parties are engaged in two parallel processes for resolution of the one dispute involving a common central issue; and that, in circumstances where MetLife seeks to use personal information acquired from documents produced under the curial process to enable it to form its opinion on that very issue to resolve that very dispute' and relied upon the formulation given by Chesterman JA in Northbuild that had found favour in the Karas decision. Hence, it was argued that there was not a purpose 'collateral or extraneous to these proceedings in breach of the Hearne v Street obligations'.[20]
11. The court denied the plaintiff's motion to be excused from compliance with the notice to produce, concluding:[21]

91 I consider that, in the circumstances of the present case, use of the documents produced under the notice to produce (or under any earlier subpoena issued in the proceedings for that purpose), in order for the insurer to consider and make a determination as to Ms Gavan's claim to a TPD benefit will not infringe the Harman undertaking because it is not use for a purpose unconnected with the litigation in the course of which the documents have been required to be produced. Ms Gavan seems to have accepted that there are two processes "at play" (determination by the insurer of her claim and then, if refused, determination by the Court of her claim), in a context where she has pleaded that the failure to determine the claim to date amounts to a constructive declination of the claim, but she maintains that they are separate and distinct processes (the former, being distinct from and outside the curial process). > > 92 I consider that this approaches the question in too narrow and technical a way (to adapt the language used by Chesterman JA in Northbuild). I accept that there are parallel processes but I see them as connected in the sense that the documents sought will inform and be relevant to the same primary issue. The administrative process (of the insurer determining whether to its satisfaction the TPD definition in the Policies has been met in the present case) is not divorced from the claim to be determined by this Court if the insurer's determination is not in favour of Ms Gavan; and the same material has the capacity to inform both processes. The interconnectedness of the two processes is reflected by the potential for dispute arising from the likely difficulty of MetLife divorcing, from its consideration of Ms Gavan's TPD claim, information already gleaned from the present conduct of its defence of the proceedings instituted by Ms Gavan (noting that, as observed above, the principle extends beyond the documents themselves to use of the information contained in the documents). The potential for dispute down the track, if it be asserted that some information obtained through the compulsive processes of the Court was used improperly for the determination of Ms Gavan's TPD claim (particularly in circumstances where there has hitherto been apparent consent to the use of such information for those purposes), highlights the connection between the two processes.

12. It is by no means clear that the statement of the High Court that prohibits use for purposes other than those for which they were compulsorily obtained is now to be regarded as too narrow and technical such that use of documents for 'parallel processes' displaying a sufficient 'interconnectedness' with the proceedings are no longer to be regarded as uses contrary to the Harman Obligation. Where such parallel processes demonstrate sufficient interconnectedness with the proceedings, this normally supports a finding by the Tribunal or court that 'special circumstances' have been demonstrative justifying the release from the obligation. That still acknowledges that release depends upon permission of the court or tribunal under whose compulsory processes the documents were obtained. In the end, the court in Northbuild and in Karas did just that.
13. However, the decision in Gavan might be thought to support the view that there is no need to apply to the court or tribunal for release from the obligation where sufficient 'interconnectedness' exists between the court or tribunal process and the 'parallel process' of an insurer determining a claim. There is a problem with the blanket application of such an approach. The duty of confidentiality, owed to the court or tribunal, and which is a substantive legal obligation, might now be waived on the opinion of the party who seeks to use documents or information for a purpose other than the one for which the documents were obtained on forming a view that there is sufficient interconnectedness, and the purposes are sufficiently parallel. In the present case, the respondent contends that all subsequent decision‑making to meet future claims and requests will constitute sufficient interconnectedness as to justify use of the documents and information while avoiding application to the Tribunal for release from the Harman Obligation.
14. For reasons that will be set out below, the purported interconnectedness of the determination of claims and requests when they come before Comcare from time to time does not exist.
15. However, in the process of Tribunal review there are well-recognised processes that meet the situation that was dealt with by the court in Gavan. That requires an understanding of the nature of the statutory decision-making processes and the Tribunal's jurisdiction on review.

Nature of the proceedings and Comcare's obligation to make determinations

1. Before dealing with the question whether the proposed use for the summonsed materials is collateral or ulterior to the proceedings, it is worthwhile considering the statutory regime established by the Administrative Review Tribunal Act 2024 (ART Act) and the Safety, Rehabilitation and Compensation Act 1988 (SRC Act).
2. The Tribunal has power to review decisions made under an enactment. Subsection 12(1) of the ART Act provides:

12 Reviewable decisions > > (1) A decision is a reviewable decision if an Act or a legislative instrument provides for an application to be made to the Tribunal for review of the decision. > > Note: To find out whether a decision is a reviewable decision, start by looking at the Act or legislative instrument under which the decision is made.

3. The Tribunal has power to issue a summons to any person to either appear at the Tribunal to give evidence or to produce any document or thing. Subsection 74(1) of the ART Act provides:

74 Tribunal may summon person to give evidence or produce documents > > Power to issue summons > > (1) If the Tribunal has reasonable grounds to believe that a person has information, or a document or thing, relevant to a proceeding in the Tribunal, the Tribunal may, in writing, summon the person to do either or both of the following, on the day, and at the time and place, specified in the summons:

(a) appear before the Tribunal to give evidence;

(b) produce any document or thing specified in the summons.

1. Firstly, it should be noted that the issue of a summons is contingent on the Tribunal's determination that the person summoned has information, a document or thing 'relevant to a proceeding in the Tribunal'. Secondly, this power to summons information is not one that is provided to Comcare by the SRC Act. It is only by permission of the Tribunal that the parties have access to such documents and the Harman Obligation controls the ambit of use to just such things that are 'relevant to the proceeding in the Tribunal'.
2. Comcare is a body that is established by section 68 of the SRC Act. Comcare's functions are specified in section 69, but I will refer only to the function that is relevant to this proceeding and the resolution of this application as set out in paragraph 69(a) of the SRC Act:

69 Functions > > Subject to this Act, Comcare has the following functions, in addition to its other functions under this Act:

(a) to make determinations accurately and quickly in relation to claims and requests made to Comcare under this Act;

(b) ...

1. Not all decisions made by Comcare in managing a claim for compensation may become the subject of review by the Tribunal. However, the determining of 'claims and requests' are ones that are particularly identified as being reviewable by the Tribunal.
2. Part VI of the SRC Act provides for the 'Reconsideration and review of determinations' made pursuant to that Act. Paragraph 64(1)(a) of the SRC Act provides that a 'claimant' may make an application to the ART 'for review of a reviewable decision'. Section 60 of the SRC Act provides:

60 Interpretation > > (1) In this Part: > > claimant means a person in respect of whom a determination is made. > > decision has the same meaning as in the Administrative Review Tribunal Act 2024. > > determination means a determination, decision or requirement made under section 8, 14, 15, 16, 17, 18, 19, 20, 21, 21A, 22, 24, 25, 27, 29, 29A, 30, 31, 34, 36, 37, 39 or 57, under paragraph 114B(5)(a) or under Division 3 of Part X. > > determining authority, in relation to a determination, means the person who made the determination. > > reviewable decision means a decision made under subsection 38(4) or section 62. > > (2) For the purposes of this Part, the parties to proceedings instituted under this Part are: > > (a) the applicant; and > > (b) if the applicant is not the claimant - the claimant; and > > (c) the body responsible for the reviewable decision. > > (3) For the purposes of subsection (2), the body responsible for the reviewable decision is:

(a) if Comcare made the reviewable decision - Comcare; and

(b) if the reviewable decision has been made by or on behalf of a licensee - the licensee.

(4) Subsection (2) has effect subject to Part VIII.

1. The word 'claim' is defined in subsection 4(1) of the SRC Act to mean 'a claim under Part V' of that Act. Within Part V, 'Claims for Compensation', section 54 provides:

54 Claims for compensation > > (1) Compensation is not payable to a person under this Act unless a claim for compensation is made by or on behalf of the person under this section. > > (2) A claim shall be made by giving the relevant authority:

(a) a written claim in accordance with the form approved by Comcare for the purposes of this paragraph; and

(b) except where the claim is for compensation under section 16 or 17 - a certificate by a legally qualified medical practitioner in accordance with the form approved by Comcare for the purposes of this paragraph.

(3) Where a written claim, other than a claim for compensation under section 16 or 17, is given to a relevant authority under paragraph (2)(a) and the claim is not accompanied by a certificate of the kind referred to in paragraph (2)(b), the claim shall be taken not to have been made until such a certificate is given to that authority.

(4) If a claim relating to an employee is given to Comcare, Comcare must cause a copy of the claim to be given to the principal officer of the Entity, Commonwealth authority or licensed corporation in which the employee was employed at that time.

(5) Strict compliance with an approved form referred to in subsection (2) is not required and substantial compliance is sufficient.

1. Section 61 within Part VI of the SRC Act, so far as is relevant, provides that the 'determining authority', in this case, Comcare, must make a determination in writing pursuant to section 61 of the SRC Act.
2. Section 62 deals with the making of a 'reviewable decision' as defined in subsection 60(1) of the SRC Act. Subsection 62(1) of the SRC Act provides:

62 Reconsideration of determinations > > (1) A determining authority may, on its own motion:

(a) reconsider a determination made by it; or

(b) cause such a determination to be reconsidered by a person to whom its power under this section is delegated, being a person other than the person who made, or was involved in the making of, the determination;

whether or not a proceeding has been instituted or completed under this Part in respect of a reviewable decision made in relation to that determination.

(2) A request to a determining authority to reconsider a determination made by it may be made by:

(a) the claimant; or

(b) if the determination affects the Commonwealth - the Commonwealth; or

1. If a written request for reconsideration of a determination is made, subsection 62(5) of the SRC Act provides:

(5) Where a person reconsiders a determination, the person may make a decision affirming or revoking the determination or varying the determination in such manner as the person thinks fit.

1. In Mr Sewell's case, Comcare determined on 22 March 2024 to accept liability pursuant to section 14 of the SRC Act.[22] That section relevantly provides:

14 Compensation for injuries > > (1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

2. The first determination found a liability to pay compensation in respect of an 'adjustment disorder', but the Commonwealth, through the Department of Defence as the employing agency, made a request of reconsideration on 14 June 2024.[23] Comcare then reviewed the determination and produced a reviewable decision pursuant to section 62 of the SRC Act on 11 July 2024, revoking the determination and thereby denying liability for the claimed injury.[24]
3. On 14 August 2024, Mr Sewell commenced his application for review of the reviewable decision of 11 July 2024 with the former AAT that became the proceeding number 2024/5861.[25]

1. The only decision that was reviewable in this proceeding was the revocation of the acceptance of liability to pay compensation pursuant to section 14 of the SRC Act.
2. In this case, Comcare came to an agreement with Mr Sewell to set the decision aside and make a new decision in substitution for the one set aside. That process relies upon section 103 of the ART Act. The Tribunal encourages parties to come to agreement as to the terms of a decision and if it is satisfied that 'a decision in the terms of the agreement or consistent with those terms would be within the powers of the Tribunal', it will, by subsections 103(1)(d) and 103(2) of the ART Act, make a decision without holding or completing the hearing of the proceeding. It can be expected that in coming to an agreement, the knowledge obtained from having access to documents acquired through the Tribunal's compulsory processes have played some role in the parties coming to agreement.
3. That decision of the Tribunal following agreement is, like one made following the completion of a hearing of the proceeding, taken to be a decision of the decision-maker by operation of subsection 108(2) of the ART Act.
4. However, in relation to compensation disputes under the SRC Act, there is a process other than section 103 of the ART Act, to setting aside and making a new decision in substitution for the one that is the subject of a proceeding. Subsection 62(1) of the SRC Act permits the determining authority 'on its own motion' to reconsider a determination, or to cause such a reconsideration by a person other than the original decision-maker, and do so, 'whether or not a proceeding has been instituted or completed ...'. The word 'proceeding' in the context of Part VI of the SRC Act [Reconsideration and review of determinations] is to be understood as Tribunal review proceedings. Subsection 4(12) of the SRC Act provides:

(12) A reference in this Act to the institution of a proceeding under Part VI in respect of a reviewable decision is a reference to the making of an application to the Administrative Review Tribunal for review of that decision.

1. In so reviewing, the person delegated the task of reconsideration may, by subsection 62(5) of the SRC Act, 'make a decision affirming or revoking the determination or varying the determination in such manner as the person thinks fit'. In the present case, Comcare might have made use of such power provided in section 62 of the SRC Act to reinstate its original acceptance of liability by affirming or varying the original determination made on 22 March 2024.
2. I could accept that in such a case, where materials have been made available to the parties by means of compulsory processes of the Tribunal, the knowledge gained from such documents or information may cause Comcare to review the underlying determination in any way within its power. Where such a decision is more favourable to the claimant, subsection 67(8) of the SRC Act provides that the Tribunal may order Comcare, or any other responsible authority, to pay the claimant's costs of the proceeding before the Tribunal.[26] The effect might well be the same as use of the procedure in section 103 of the ART Act.
3. Addressing Comcare's submission raised on the process available to Comcare using subsection 62(1) of the SRC Act to review a determination, even when 'a proceeding has been instituted', is the only process that can be regarded as a 'parallel process' that demonstrates such 'interconnectedness' by virtue of the identical subject matter, that would satisfy the tests set out in the decision of the NSW Supreme Court in Gavan. The court in Gavan limited the use of such information gained from compulsory processes where the 'administrative process (of the insurer determining whether to its satisfaction the TPD definition in the Policies has been met in the present case) is not divorced from the claim to be determined by this Court if the insurer's determination is not in favour of Ms Gavan; and the same material has the capacity to inform both processes'.[27] In that case, once the TPD benefit was dealt with, there were no ongoing administrative or other processes referred to. In the present case, the only determination upon which a claim of parallel process with sufficient interconnectedness with the review proceeding was the determination concerning liability pursuant to section 14 of the SRC Act. That is a process that, in the present case, has concluded with the order following written agreement pursuant to section 103 of the ART Act.

Absence of 'special circumstances' in respect of future determination of claims and requests

1. However, Comcare presses the 'special circumstances' that, in its submission, justify the release of the parties from the Harman Obligation pointing to the administrative nature of managing ongoing compensation claims once liability to pay compensation has been determined.
2. The Harman Obligation persists after the proceedings are concluded. The documents or information derived from them may not be further used by either party unless they were received into evidence, and hence confidentiality no longer exists, or leave of the court or tribunal to whom the obligation is owed releases the party or parties concerned from continued observance of the obligation. The decision to release is within the court or tribunal's discretion, but it is recognised that in the exercise of that discretion, special circumstances must exist to justify the grant of leave (see Crest Homes Plc v Marks [1987] AC 829). In Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217 (Springfield) the existence of 'special circumstances' was not confined to any particular or exhaustive set of factors:[28]

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. 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.

3. It should be noted that the authorities relied upon for release point to actual proceedings separate from the one where the documents were obtained. The obligation of Comcare to make determinations in respect of future claims and requests is not a 'proceeding' but a statutory obligation that may or may not be invoked. Even when called upon to determine any entitlement to a particular form of compensation, there is no reason to assume that the entitlement will result in disputation that will become a proceeding, in the sense used in Part IV of the SRC Act, for review of that determination. The absence of continual proceedings should be sufficient to set aside consideration of those cases, put forward by Comcare, to support its application for relief from the Harman Obligation. I refer to the decision of Slea Pty Ltd v Connective Services Pty Ltd [2017] VSC 706; (2017) 53 VR 161 (Slea), an application for retrospective leave to use documents in one Supreme Court proceeding in a subsequent proceeding. Comcare submitted that the decision favoured consideration of the 'case management principles and the just, efficient, timely and cost-effective resolution of real issues in dispute between the parties'.
4. The substance of 'case management principles' was not identified in any way, but the submission assumes 'real issues in dispute between the parties' in the future management of the claims and requests that may be made. That cannot be assumed to exist and cannot constitute a basis for release from the Harman Obligation. In the case of Slea, the court identified two separate proceedings where the issues raised 'substantially intersect' and the previously discovered document, referred to as an 'Accommodation Agreement', was found to be 'highly relevant to each proceeding' and was likely to contribute to the achieving justice in the second proceeding, adopting the words of Wilcox J in Springfield referred to above and said to be the most important consideration when weighing the special circumstances.[29] In the absence of any identified dispute between the parties, there can be no evaluation of the contribution of summonsed documents to the determination of claims and requests pursuant to the SRC Act.
5. Comcare contended that there is, in the nature of the continual association of compensation entitlements yet to be determined and the liability for injury, sufficient special circumstances to justify release of the parties from the Harman Obligation. This submission is made in the absence of any other proceedings. Comcare submitted:[30]

Should liability be accepted, Comcare (or relevant licensees) will often have ongoing interactions with the claimant in making a series of closely related decisions that must inherently take into account the nature and incidents of the injury for which liability was accepted. As one example, decisions under s 16 of the SRC Act must consider what treatment is "in relation to the injury". > > ... > > There are only a small number of legislative schemes which ground ART review, and which may result in the parties having a relatively long ongoing relationship involving the making of ongoing decisions under the same legislation, which relate to the same matters considered earlier by the ART (in most cases involving Harman information). > > ... > > Where settlement occurs, there will be no Tribunal decision with attendant reasons that explains the factual findings relevant to a conclusion about injury. Where there is a Tribunal decision, the findings in an initial liability matter will often include findings about competing expert evidence and involve reference to, and sometimes an analysis of, summonsed material. However, the reasons for settlement are usually only known between the parties. There is no published decision explaining those reasons. This gives context to the consent of the affected claimant to the use of summonsed material in future decisions. Ready access to that material saves both parties time, inconvenience and expense and it is in the interests of justice in ensuring that decisions are made on the basis of all relevant material in the possession of Comcare. Likewise, the claimant is released so that, for example, they can also send summonsed material to any legal representatives or experts they may wish to brief in support of e.g. a Permanent Impairment claim they may wish to make. If the claimant is also denied use of the summonsed information, they will likely need to undertake multiple steps to obtain the same material in furtherance of compensation claims they may wish to explore and/or make about the very same injury.

6. It can readily be accepted that workers compensation claims may continue to be administered for years to come due to a liability to pay compensation pursuant to section 14 of the SRC Act. Accordingly, there will be a need to make determinations pursuant to other sections of the Act, identified in the definition of 'determination' in section 60 of the Act. Some injuries persist for years, indeed, for life.
7. However, the material summonsed by the Tribunal in the review of the existence of a liability pursuant to section 14 of the SRC Act is not relevant to the determination of the entitlements that flow as a result of that injury. The scheme of the Act ought to be considered starting with the central provision, at section 14 of the SRC Act. In Lees v Comcare [1999] FCA 753; (1999) 56 ALD 84 (Lees) it was said by the Full Court:[31]

[34] The definition of "determination" makes it plain that it is part of the scheme of the Act for determinations to be made under the various sections referred to therein. In particular, the definition reveals that a determination may be made under s 14 of the Act. A determination under s 14 cannot amount to more than a determination that Comcare "is liable to pay compensation in accordance with this Act" in respect of a particular injury. The amount of compensation which Comcare will be liable to pay, the person or persons to whom the compensation will be payable and the time or times at which Comcare's liability will give rise to a present obligation to make payments are, as the above examination of the structure of the Act reveals, all matters to be determined under other provisions of the Act. > > [35] This is not to say that a determination under s 14 is without real significance. Such a determination will involve findings on the following matters. First, that an appropriate notice of injury has been given to the relevant authority as required by s 53 of the Act; secondly, that a claim for compensation has been made as required by s 54 of the Act; thirdly, that the person who made the claim or on whose behalf the claim was made was an "employee" at the time of the alleged injury (ss 4 and 5); fourthly, that the employee suffered an injury (s 4); and finally, that the injury has resulted in death, incapacity for work or impairment.

8. In respect of the matters of 'real significance' referred to above with respect to the present proceeding, Mr Sewell made a claim for compensation for 'Psychological Distress' on 30 January 2024.[32] Accompanying that claim was a certificate by a medical practitioner, Dr Melanny Ho of the Southbank Medical Clinic, stating that she had examined Mr Sewell on 25 January 2024 and that he was suffering 'Anxiety/Stress' and referred to his treatment in his employment that led to his 'feeling acute stress, upset, angry, low mood and anxious'.[33] The written claim form satisfied the provisions of section 54 of the SRC Act and also constituted notification of injury pursuant to section 53 of the SRC Act. That was accepted in the primary decision by Comcare to accept liability on 22 March 2024.[34] That same decision relied upon the certificate of 25 January 2024 and a further report of Dr Ho dated 6 February 2024 to identify the injury as an 'Adjustment Disorder' and that both impairment and incapacity for work resulted from this disorder.[35] There was no dispute that Mr Sewell was an employee for the purposes of the SRC Act.
9. The reviewable decision dated 11 July 2024 revoking the liability that had been accepted on 22 March 2024 directed its attention to the fact that Mr Sewell had resigned and concluded that resignation was not employment 'but rather is incidental to your contract of employment' so that there was no contribution to the ailment by employment. Further, the decision‑maker considered that contributory events from employment that could be considered significant constituted reasonable administrative action such that by reason of the definition of injury in section 5A of the SRC Act the injury would be excluded from the field of compensation. It is possible that the information obtained from clinical notes caused Comcare to change its mind in relation to this decision, but if that did occur, the question of liability pursuant to section 14 of the SRC Act is now settled. That issue was the whole of the subject matter of the proceeding, and the sole reason for the Tribunal permitting the summons of documents from the three medical practices. It would have been an abuse of process to permit the issue of summons to acquire documents for Comcare's use in respect of any other purpose such as the potential future claims and requests because such purposes were ulterior and collateral to the proceedings.
10. In Liu and Comcare [2004] AATA 617; (2004) 79 ALD 119 (Liu) it was said: 'A positive determination under s 14 is a determination of the existence of a compensable injury. The nature and amount of the compensation is to be determined under other provisions of the Act.'[36] The Tribunal in that case went on to say:

Compensable injuries may not always result in the payment of compensation. They may give rise to intermittent entitlements to compensation. There may be periods when there is no present entitlement to compensation under any of the sections of the Act relating to the nature and amount of compensation. But during such periods an injury which has been determined to be a compensable injury under s 14 will not cease to be a compensable injury. It will simply be correct to say during some periods that at the present the compensable injury does not give rise to an entitlement to compensation. Such periods may be long. The compensable injury may never give rise to any future entitlement to compensation. But this can not be known or determined in advance. No determination, whether by consent of the parties or not, can preclude the making of a future application for compensation with respect to a compensable injury determined to exist under s 14. This was made clear in Plumb v Comcare [1992] FCA 595; (1992) 39 FCR 236 at 240.

11. Once liability is established, the future decisions to be made do not reconsider the liability to pay compensation pursuant to section 14 of the SRC Act unless, in the rare circumstance, Comcare comes into possession of new information that erodes the basis upon which liability for injury was accepted. That can occur in two contexts:

(a) Comcare may make a reviewable decision of its own motion revoking the primary determination accepting liability. In Liu the Tribunal stated:[37] > > The only time that liability under s 14 can be reconsidered is under s 62. But that is a reconsideration of whether the original determination was correct on its merits and cannot address any issue of cessation of correctly determined liability. A changed determination upon such a reconsideration is a determination that there never was a compensable injury: see Australian Postal Corp v Oudyn [2003] FCA 318; (2003) 73 ALD 659 at 666-7. > > (b) In the course of determining specific compensation entitlements, say under sections 16 and 19 of the SRC Act, a decision-maker may draw conclusions from new evidence to hand that may effectively undercut the necessary factual findings made by the original decision-maker pursuant to section 14 of the SRC Act (see Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253 (Hannaford)).

12. Comcare's submission placed great weight on the decision of the Full Court in Comcare v DSLB [2025] FCAFC 13 (DSLB) which canvassed the scheme of the SRC Act and its decision‑making in the light of cases 'which, in the light of evidence not available to a determining authority at the time of a primary determination or on reconsideration, are persuasive either that a claim should not have been accepted, or should not sound in continued compensation. This is recognised by the power of reconsideration of a determination under, materially, s 14, conferred by s 62 of the SRC Act.'[38] The court recognised that an employee's entitlement to compensation may be reduced or ceased upon reconsideration and referred to the decision in Hannaford where, in determining entitlements for medical treatment and incapacity for work, the decision‑maker came upon new medical material that undercut the essential findings that led to accepting the claim. The claim had originally been accepted in respect of a disease of Ross River fever contracted in the course of employment. The new medical material, a form of diagnostic test, indicated that the employee had never suffered from Ross River fever but some other disorder that could not be associated with employment.
13. It is highly relevant to note the comment in DSLB:[39]

The references to "progressive and evolving decision-making" in Hannaford were primarily concerned with subsequent events or circumstances which necessitate an adjustment or change to an employee's ongoing entitlements to compensation.

14. DSLB was not a case about the Harman Obligation but about whether Comcare was empowered to revoke, vary or substitute of its own motion, pursuant to section 62 of the SRC Act, one of its own reconsideration decisions, and, if it did so, whether it would thereby deny the claimant procedural fairness. A claimant employee had her claim for compensation for a psychological condition denied because while the employment contributed to the ailment, the decision‑maker considered the employment contribution was a reasonable administrative action taken in a reasonable manner and hence excluded the injury from the field of compensation. After the claimant requested reconsideration, Comcare changed its mind, revoked the original determination denying liability and accepted liability to pay compensation. Some two years later, Comcare obtained new evidence that the claimant had been suffering the psychiatric illness for a long time prior to the events leading to the claim for compensation, and, of its own motion, again rejected all liability to pay compensation. The claimant applied to the Tribunal for review of the last decision but on grounds that it was beyond power conferred by section 62 of the SRC Act, it being a second reconsideration decision, and there being prior decisions against reconsideration of an earlier reconsideration decision (in this case, the reviewable decision accepting liability) and the primary determination being now regarded as non-existent once it had become the subject of the reviewable decision revoking it. The claimant evidently benefited from having the first reconsideration decision accepting liability and revoking the denial of liability determination to be beyond the Tribunal's jurisdiction to review.
15. At first instance, the court dealt with the matter under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and the Full Court heard the matter on appeal from the decision of the primary judge. There were proceedings in the former Administrative Appeals Tribunal that were continuing but it was on a question of the nature of the Tribunal's jurisdiction to review the decision that formed the basis of the Federal Court's decision.
16. However, to the extent that DSLB and the authorities referred to have a bearing on the question presently before me, the subsequent review of primary liability under section 14 of the SRC Act is enlivened by subsequent events and circumstances, including new evidence, that necessitate an adjustment or termination of the entitlement to compensation. Those subsequent events and circumstances do not encompass review of the existing information obtained under compulsion in the form of clinical notes. After all, those notes, if they had any relevance to the deliberations of the parties in coming to their agreement pursuant to section 103 of the ART Act, could only have favoured the finding of a section 14 liability for injury. That does not support a release of the parties from the obligations of confidentiality concerning the summonsed materials.
17. It was suggested that there may be present needs of Mr Sewell that require Comcare to be released from its undertaking to determine existing liabilities. Since the decision under review was made pursuant to section 14 of the SRC Act, the Tribunal could not have taken these summonsed notes into consideration to determine the existing but unpaid claims for compensation pursuant to section 16 for medical treatment or section 19 for incapacity leave payments. A denial of liability to pay compensation pursuant to section 14 is sufficient to form a basis for rejecting liability pursuant to sections 16 and 19 of the SRC Act. However, on review, without a decision concerning section 16 or 19 of the SRC Act, the Tribunal cannot decide those further entitlements. Part of Comcare's argument is that such summonsed notes may have a bearing on the liability to pay compensation.
18. I would firstly observe that had Comcare, in rejecting liability pursuant to section 14, also gone on to reject liability pursuant to sections 16 and 19 of the SRC Act, those matters could all have been determined together, and the clinical notes, if relevant, might have been taken into consideration in the proceeding. The Tribunal observed in Liu that an 'An initial determination of entitlement to compensation under the Act will normally incorporate a finding in favour of the claimant both under s 14 and also under one of the other sections of the Act: for example, ss 16, 19 or 24'.[40] A decision to reject could also incorporate findings in relation to the same sections. No delay would then ensure in determining such entitlements. Experience shows that other decision-making authorities, such as the Australian Postal Corporation, which holds a licence to accept liability and manage claims, routinely deals with sections 14, 16 and 19 of the SRC Act in determinations even when rejecting liability. Comcare might have adopted the same approach to decision-making and thereby avoid the claimed 'duplication' or 'unnecessary delay' or 'additional costs in obtaining medical records' in determining such existing claims for specific compensation that might have been made during the period predating the conclusion of the review proceedings.
19. However, in the present case, no decision was made concerning revocation of the acceptance of the costs incurred by Mr Sewell for medical treatment pursuant to section 16 of the SRC Act. The Tribunal documents included copies of notices of determinations accepting liability for particular medical treatment pursuant to that section made on 5 April 2024,[41] 30 April 2024,[42] 4 June 2024[43] and 3 July 2024.[44] No decision was made to revoke the liability to make those payments. Further, no decision had been made prior to the revocation of liability to make payments of weekly compensation pursuant to section 19 for loss of income due to incapacity for work resulting from injury. No submission was made to me regarding whether that entitlement was in issue and whether any of the evidence that might have been in the summonsed notes was relevant to that.
20. No submission identified whether there was any disputation over claims for specific compensation pursuant to sections 16 or 19 or any other section of the Act or the nature of any such dispute so that the essential elements of decision-making in respect of 'special circumstances' justify release of the parties. It is not a matter to be assumed. The duty of Comcare pursuant to paragraph 69(a) of the SRC Act 'to make determinations accurately and quickly in relation to claims and requests made' does not assume disputation that can only be resolved by access to all past medical records held by non-parties that would otherwise remain confidential. While the submissions refer to the familiar considerations raised in the cases dealing with 'special circumstances' justifying departure from the normal rule, there was no emphasis on what the courts have identified as 'the likely contribution of the document to achieving justice in the second proceeding'. In the leading cases, this has been referred to as the 'most important of all' the factors to be taken into consideration and again points to the role to be played in the quelling of disputes.[45]
21. That leaves the future claims for specific compensation to be considered in the light of Comcare's submissions concerning the basis for release. Once again, there cannot yet be any assumption of disputation about claims and requests that are not yet made, and which might never be made, that could weigh in favour of release of the parties from the Harman Obligation by which to assess its contribution to the achievement of justice.
22. Experience shows that the range of disputes that may arise as to whether specific compensation is payable in response to 'claims and requests' do not rely on the evidence confirming the existence of a liability for injury pursuant to section 14. Rather, such disputes raise issues whether facts alleged to support the conclusion that compensable consequences flowed as 'a result of' or were 'in relation to' that accepted injury. If the allegation is that the person has recovered from the injury, it will be the facts and circumstances that are yet to occur that will determine the result in that case. If, on the other hand, the original injury had resulted in a consequential injury, different in nature to the primary compensable injury, it will again be the facts and circumstances that subsequently arise that will determine that issue. Even an extravagant allegation that 'employment no longer contributes to a significant degree' to the compensable injury as a basis for ceasing liability for specific compensation entitlements will not require analysis of the evidence which led to the injury being accepted for compensation in the first place.[46]

1. Comcare's submission referred to the High Court's statement in Esso that the Harman Obligation will yield to 'inconsistent statutory provisions and to the requirements of curial process in other litigation, eg discovery and inspection'.[47] The submission referred to provisions of sections 58, 59 and 69(a), the 'interaction with remittal powers of the ART' as well as section 71 of the SRC Act and section 23 of the ART Act. Section 58 of the SRC Act provides:

58 Power to request the provision of information > > (1) Where a relevant authority has received a claim and is satisfied that the claimant:

(a) has information or a document that is relevant to the claim; or

(b) may obtain such information or a copy of such a document without unreasonable expense or inconvenience;

the relevant authority may, by notice in writing given to the claimant, request the claimant to give that information or a copy of that document to the relevant authority within 28 days after the date of the notice or within such further period (if any) as the relevant authority, on the request of the claimant, allows.

59 Certain documents to be supplied on request > > (1) A relevant authority shall:

(a) on request by a claimant - give to the claimant any document held by the authority that relates to the claimant's claim; or

(b) on request by the Commonwealth in respect of a claim affecting the Commonwealth or a Commonwealth authority - give to the Commonwealth any document held by the relevant authority that relates to the claim; or

(c) on request by a licensed corporation in respect of a claim affecting the corporation - give to the corporation any document held by the relevant authority that relates to the claim.

1. No existing 'request' relevant to sections 58 or 59 of the SRC Act was identified and so it was not a matter that is essential for the disposition of the application before the Tribunal. However, it was given some brief reference in oral submissions, and I did point out that a request by the applicant claimant of Comcare under section 59 or by Comcare of the claimant under section 58 would amount to a breach of the undertaking since both parties are bound by their mutual undertaking to the Tribunal to maintain confidentiality. A substantive legal obligation such as the one under consideration cannot be subverted by subterfuge.
2. Beyond that, the submissions did not go further in relation to possible inconsistent statutory provisions of the SRC Act.
3. Finally, the obligation created by section 23 of the ART Act to provide documents that may be relevant to a future application for review would be to assume a dispute that is not yet in existence and the extent to which that is properly considered an inconsistent statutory provision need not be resolved here. Even if it is such a contrary provision, the medical records in question, being compelled to production by a compulsory Tribunal process, would still be subject to the Harman Obligation in those proceedings.
4. In conclusion, the duty of Comcare to make determinations in respect of claims and requests pursuant to paragraph 69(a) of the SRC Act is not a 'parallel process' with such 'interconnectedness' with the proceedings now completed such that the future use of the medical records summonsed to the Tribunal could be regarded as not collateral or ulterior to those proceedings and thereby avoid the Harman Obligation that binds both parties. Further, there are no 'special circumstances' made out that would justify the release of the parties from the obligation to keep the summonsed medical records or the knowledge obtained from access to those records confidential. The parties' own 'consent' to the release of documents is not relevant to the determination of the question whether 'special circumstances' exist where the documents belong to non-parties who created such documents in circumstances which were intended to remain confidential and were never created with any expectation that they were to become known to strangers or the public at large.
5. Accordingly, the joint application of the parties for release from their obligations of confidentiality, the Harman Obligation, in relation to the three sets of summonsed clinical notes and records is denied.

Respondent: Sarah Wright, instructed by Moray & Agnew Lawyers

[1] The equivalent power is section 74 of the Administrative Review Tribunal Act 2024. On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.

[2] [2004] AATA 800 [42] per Deputy President Forgie.

[3] The claim number with the notation '.../2' indicates that Mr Sewell has another compensable injury for which he has an entitlement to compensation.

[4] [1983] 1 AC 280, 304 per Lord Diplock.

[5] [2008] HCA 36; (2008) 235 CLR 125, 154 at [96] per Hayne, Heydon and Crennan JJ, with whom Gleeson CJ agreed at 131 [3].

[6] (1994) 183 CLR 10, 31 per Mason CJ with whom Dawson and McHugh JJ agreed.

[7] Hearne v Street [2008] HCA 36; (2008) 235 CLR 125, 155 [96], Hayne, Heydon and Crennan JJ citing Eltran Pty Ltd v Westpac Banking Corporation (1990) 25 FCR 322.

[8] Respondent's written submissions, 3 September 2025, [15]-[19].

[9] [1996] 2 VR 567, 572 per Byrne J.

[10] [2021] NSWSC 1049, [21] per Rein J.

[11] Deputy Commissioner of Taxation v Karas [2012] VSC 143 [23] per Forrest J.

[12] [1977] QB 881 at 896.

[13] [2019] NSWSC 667 [92] per Ward CJ in Equity.

[14] (2011) 1 Qd R 145, 150-151 [17]-[21] per McMurdo P with whom Muir agreed.

[15] (2011) 1 Qd R 145, 155-156 [50].

[16] (2011) 1 Qd R 145, 154 [39].

[17] [2012] VSC 143 [26].

[18] [2012] VSC 143 [43].

[19] [2019] NSWSC 667 [2].

[20] [2019] NSWSC 667 [80]-[81].

[21] [2019] NSWSC 667 [91]-[92] per Ward CJ in Equity.

[22] T4, 51-58. References commencing with the letter 'T' are references to Tribunal documents that are lodged with the Tribunal pursuant to a Notice to the Respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act), in operation when the application commenced. They are generally known as 'Tribunal documents', sequentially numbered, with subsequent page references.

[26] Comcare, though established pursuant to section 68 of the SRC Act to make decisions and pay compensation in respect of claims and requests made under the Act, is not the sole 'responsible authority'. The SRC Act also provided to certain Commonwealth statutory authorities and corporations to acquire a licence to receive and determine claims and make payments in respect of their own employees.

[27] [2019] NSWSC 667 [92] per Ward CJ in Equity.

[28] (1992) 38 FCR 217, 225 per Wilcox J.

[29] [2017] VSC 706; (2017) 53 VR 161, 174 [53]-[54] per Judd J.

[30] Respondent's submission at [48](a).

[31] [1999] FCA 753; (1999) 56 ALD 84, 91 [34]-[35] per Wilcox, Branson and Tamberlin JJ.

[32] T7, 69-75. References commencing with the letter 'T' are references to Tribunal documents that are lodged with the Tribunal pursuant to a Notice to the Respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act), in operation when the application commenced. They are generally known as 'Tribunal documents', sequentially numbered, with subsequent page references.

[36] [2004] AATA 617; (2004) 79 ALD 119, 120 [2] per President G Downes J, Deputy President R P Handley and Senior Member

[37] [2004] AATA 617; (2004) 79 ALD 119, 120 [3]

[38] [2025] FCAFC 13, [15] per Logan J.

[39] [2025] FCAFC 13, [12 per Horan J.

[40] [2004] AATA 617; (2004) 79 ALD 119, 120 [1]

[45] Springfield (1992) 38 FCR 217, 225 per Wilcox J; Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3; (2005) 218 ALR 283, 290 [31] per Branson, Sundberg and Allsop JJ.

[46] It is an allegation that is repeated in decisions based on a view that employment must continue to 'contribute' at the time when specific compensation is claimed. I have elsewhere pointed out the faults in such an approach. See Re Kumar and Comcare [2025] 185 ALD 246.

[47] (1994) 183 CLR 10, 33 per Mason CJ.