UJV v Transport Accident Commission (Review and Regulation) [2024] VCAT 1147

1. The principal registrar is directed to arrange for the respondent to access the summonsed records produced by the St Kilda South Medical Clinic ('SSMC Records').
2. Order 7 of the Tribunal's orders dated 28 June 2024 is set aside.

Note: The use which the Commission may make of the SSMC Records is regulated by section 126B of the Transport Accident Act 1986 (Vic).

1. UJV was injured in a transport accident on 26 September 2011 when riding a motorcycle. Since that time, he has been receiving funding from the Transport Accident Commission ('Commission') for treatment by various health practitioners, including for physiotherapy and psychological treatment.
2. The present proceeding (Z250/2024) concerns a decision of the Commission dated 10 November 2023 to cease funding psychological treatment with Dr Boris Goloub (although leaving open the possibility of funding treatment with an alternative provider).

(For completeness, I note that UJV also lodged applications for review of other decisions made by the Commission in 2023, which were resolved between the parties in June 2024.[1])

1. It is common in proceedings for review of decisions under the Transport Accident Act 1986 (Vic) ('TA Act') that the Commission seeks the full medical history of the relevant applicant. Such records may be relevant to the question of causation (i.e. was the applicant injured as a result of a transport accident) and reasonableness (i.e. is the treatment for which funding is sought a reasonable cost for medical or other services received because of the transport accident).[2]
2. It is therefore unsurprising that the Commission requested, and on 3 July 2024 a registrar of the Tribunal issued, summonses for production of UJV's medical records. One summons was issued to Dr Goloub and the other was issued to St Kilda South Medical Clinic ('SSMC'), being the general practice that UJV attends. Both summonses required the documents to be produced by 29 July 2024.
3. Orders were made by a member 'in chambers' on 28 June 2024:
   • addressing the method of provision of the summonsed medical records (i.e. reflecting a preference that they be produced in electronic form);
   • providing for the applicant to make any objection by 22 July 2024; and
   • specifying that '[a]ccess to the documents is restricted to the parties and their legal advisers and may only be used for the purposes of the current proceeding' ('Order 7').
4. Each of those orders is a standard order used within the Review and Regulation List, with the latter order intended to reflect the 'implied undertaking - known as the "Harman undertaking" - that [summonsed documents] be used only for the purposes of the proceeding'.[3]
5. Dr Goloub produced his records concerning UJV electronically. SSMC filed its records in hard copy.
6. UJV objected to the release of the summonsed documents to the Commission and the matter initially came before me for a directions hearing on 21 August 2024. As reflected in orders I made that day, during the hearing, UJV conceded that the following records were relevant to the review:
   • All of the records of Dr Goloub (defined in the orders as the 'Goloub Records'), which were to be provided to the Commission.
   • Any SSMC records 'relating to consultations, tests and reports funded by the respondent' (defined in the orders as the 'Specified Clinic Records').
7. UJV disputed the relevance of the remaining records produced by SSMC (which were defined in the orders as the 'Remaining Clinic Records'). The Commission pressed access to those remaining records.
8. There was a lengthy discussion at the directions hearing as to the process of determining which of the SSMC records fell into each category. It was agreed that UJV would arrange for staff at SSMC to undertake the necessary examination of the documents. As SSMC is not a party to the proceeding, the orders simply provided that UJV send the Commission a scanned copy of the Specified Clinic Record by 11 September 2024, with the status of the Remaining Clinic Records to be determined at a further directions hearing scheduled on 15 October 2024.
9. Unfortunately, the procedure contemplated by those orders did not proceed and, at the directions hearing on 15 October 2024, the Commission again pressed for access to all of the SSMC records and noted, for the first time, the operation of section 126B of the TA Act which provides:[4]

Despite anything to the contrary in any Act (other than the Charter of Human Rights and Responsibilities) or at common law, a document produced or served or information acquired in respect of a proceeding or claim for compensation, damages, indemnity or other payment under, or in accordance with, this Act, whether before, on or after the commencement of section 12 of the Transport Accident and Accident Compensation Legislation Amendment Act 2010, may be used in, and for the purposes of, any other proceeding or claim for compensation, damages, indemnity or other payment under, or in accordance with, this Act.

1. Ms Virginia Patterson, the solicitor representing the Commission, explained that as a result of that provision (introduced in 2010), when summonsed medical records are produced, they are loaded into the Commission's record keeping system and are available to be used in relation to any existing or future claims under the TA Act (i.e. not limited to the present proceeding).
2. While UJV had made some admissions as to the relevance of the records, he maintained an objection to their use by the Commission in what he describes as being an 'unrestricted manner'.
3. As it appears that VCAT has not previously addressed the impact of section 126B of the TA Act on the Harman undertaking, and it is a matter of some importance generally, I made orders providing for each party to file and serve submissions[5] and for a determination to be made on the papers without a hearing.
4. For the reasons which follow, I am satisfied that the SSMC records are 'relevant' to the proceeding and should be made available in their entirety to the Commission.
5. I also accept that, in light of section 126B of the TA Act, Order 7 was either beyond the power of the Tribunal or otherwise inappropriate and should be set aside.

1. The Commission submits that VCAT's 'discretion with respect to the use of [summonsed] records is constrained by [section] 126B' and it therefore 'lacks the power to make an order in the nature of Order 7', which is 'invalid and without lawful effect'.[6] In that regard, the Commission contends:[7]

The provision is unambiguous in overriding the common law principle enunciated in Home Office v Harman [1983] 1 AC 280 and in permitting the TAC to use information such as is contained in the records for purposes unconnected with the proceeding at hand, including for its broader claims management powers and functions found at [sections] 11, 12 and 13 of the TA Act. It also clearly overrides any discretion, explicit or implied, that otherwise vests in the tribunal to constrain the use of the records by the [Commission].

1. The Commission also referred to the Statement of Compatibility for the Transport Accident and Accident Compensation Legislation Amendment Bill ('SoC'), which was tabled by the then Minister for the Commission in the Legislative Assembly on 29 July 2010. That provides:[8]

Generally, the 'Harman Rule' holds that certain documents or information produced under compulsion and received by another party in the course of legal proceedings should not be used for any purpose outside the context of that particular legal proceeding. However, a rigid application of this rule is too narrow in the context of transport accident compensation claims, where it is necessary for the TAC to use such documents or information to carry out its objectives and properly exercise its statutory functions. The TAC often has an ongoing relationship with claimants in relation to the management and funding of their compensation benefits, and during the period of this relationship, certain aspects of a claim may be litigated or reviewed by a court or a Tribunal. The strict operation of the Harman Rule would prevent the TAC from accessing relevant documents or information provided during such proceedings in order to carry out its objectives and functions under the [TA Act]. For example, such documents or information could include, or relate to, medical or financial reports which are necessary for the ongoing management of a compensation claim.

[Section 126B] therefore clarifies that it is appropriate for the TAC to use documents in the specified circumstances. ...

1. The Commission suggested that the Tribunal (but, perhaps more aptly, UJV) may:[9]

take comfort from the fact that the [Commission's] use and disclosure of information such as that contained in the records is in any event subject to the secrecy requirements prescribed in s 131 of the TA Act, and also to the requirements prescribed in other enactments, such as the [Privacy] and Data Protection Act [2014 (Vic)] and the Health Records Act [2001 (Vic)].

1. The Commission submits that the 'only discretion that remains vested in the [T]ribunal before releasing the records to the [Commission] is to determine whether they are relevant', noting that UJV has 'not objected to inspection on the ground of relevance'.[10] Further, the Commission sets out eight reasons as to why the SSMC records are relevant to the current proceeding, including that:[11]
   • a 'full and proper assessment of [UJV's health] cannot be made in isolation' because it is 'multifactorial in nature' and, as such, requires 'details of [his] medical history and treatment provided by [SSMC]'; and
   • the records need to be provided to the independent medical examiner, Dr Nigel Strauss, because they are relevant to 'determining whether and what treatment is reasonably and necessarily required because of the transport accident'.
2. The Commission observed that it had already received copies of SSMC's clinical records relating to UJV for the period between March 2008 and October 2020 (although the Commission states it 'has no knowledge' as to whether those are complete).[12]

1. UJV contends that the Tribunal's orders of 28 June 2024 'clearly outlined the conditions ... [by] which both parties must abide' and, as the Commission did not object or seek amendment of those orders, 'it was assumed that information released would be [used] in accordance with these orders'.[13] He adds that, in seeking to use the medical records in an 'unrestricted manner', the Commission is 'directly undermining' the Tribunal's orders and 'showing no respect for VCAT['s] powers in general'.
2. UJV submits that, if the Commission's 'claims department' requires his medical history for 'any other part of [his other] claim[s], they should request this information via the appropriate channels, and not attempt to take short cuts through an unrelated VCAT matter, being Z250/2024'.[14] He adds that, just as he is 'expected to follow a specific process, then so should [the Commission]'.
3. UJV notes that, in his report of August 2024, Dr Strauss has opined that it 'would be more appropriate in this case if [UJV] had a further six sessions on a monthly basis with Dr Goloub'.[15] Further, in response to the question of whether 'any material maybe required to assist in preparing [the] report', Dr Strauss indicated that he believed he had 'a reasonable understanding of [UJV's] situation'.[16]
4. On this basis, UJV now contends that, apart from his psychological records, his medical records are not relevant to this matter and should not be released to the Commission 'to be used for any other purposes'.[17] He adds the Commission is 'most likely' seeking to use the records 'to restrict or deny any other remaining treatment' he has.

1. In Seachange Management Pty Ltd v Bevnol Constructions & Developments Pty Ltd ('Seachange'),[18] Judge Harbison VP considered the rules in relation to summonsed records in some detail and observed:[19]
   • VCAT 'possesses a general power to regulate the custody and inspection of documents produced to it pursuant to a summons' (even though neither the Victorian Civil and Administrative Tribunal Act 1998 (Vic) ('VCAT Act') nor rules made under that Act specifically address this);
   • 'production to the parties of documents entrusted to the Tribunal in response to a [summons] ... is in no way automatic'; and
   • the Tribunal 'has the power to regulate its procedures so as to prevent interlocutory procedures such as ... the issue of [summonses] being used for inappropriate ends'.
2. A question arises in this case as to the interaction between the Tribunal's general powers (i.e. as recognised in Seachange) and section 126B of the TA Act.
3. Section 159 of the VCAT Act is a provision that is designed to deal with any inconsistencies between the VCAT Act and legislation which confers jurisdiction on the Tribunal (referred to as 'enabling enactments'). It provides that:

if a provision of [the VCAT] Act ... is inconsistent with a provision of an enabling enactment, the provision of the enabling enactment prevails to the extent of the inconsistency.

1. As indicated in Chopra v Department of Education and Training,[20] there is a strong presumption that the legislature did not intend to contradict itself and, as such, section 159 will only apply where the two provisions are in direct conflict, e.g. if it is not possible to obey both provisions or where one provision destroys a right conferred by another.
2. In my view, there is no inconsistency between section 126B of the TA Act and the Tribunal's general power to limit inspection of summonsed documents to those that are relevant. This is because section 126B only addresses how the Commission may use summonsed documents once they have been released to it. It does not operate to restrict the Tribunal's power to limit the production of summonsed documents to a party, noting that such production is not automatic.
3. However, I consider there is a direct conflict between section 126B and any power that VCAT otherwise has to impose or enforce the Harman undertaking to restrict the use which the Commission can make of relevant summonsed material after its release to the Commission.
4. Therefore, I accept that Order 7 is either beyond the power of the Tribunal or otherwise inappropriate and should be set aside.
5. At a general level, it must be accepted that the SSMC records will likely contain a combination of material (i.e. records of consultations, tests and expert reports) that may be:
   • directly relevant to the issues in dispute in this proceeding;
   • completely irrelevant; or
   • of some relevance, not necessarily apparent on the face of the record.
6. The first category would include records of consultations, or information obtained in consultations, that bear directly on UJV's psychological condition at various points in time and any connection between the condition(s) and the transport accident. For instance, if he attended at SSMC to obtain medication for anxiety or depression, the record is likely to include information as to why he felt that way. Any comments he has made to his general practitioners over time about the quality or benefits of the treatment being provided by Dr Goloub may also be directly relevant.
7. In the second category would be appointments for medical conditions completely unrelated to the transport accident or UJV's psychological condition. An example might be a consultation for referral to a specialist regarding a physical condition that is genetic in nature.
8. In the third category will be other information that adds to the context of UJV's condition and helps in the overall assessment of the matters in issue. For example, comments he made to his general practitioners over time as to his sleep might enable an assessment as to his pattern of sleep and its relationship (if any) to his psychological condition.
9. While the Tribunal has the power (or more properly, a discretion) to restrict the production of irrelevant summonsed material, it needs to act on evidence and, as the party taking the objection to the production of the material, it is for UJV to satisfy the Tribunal that it is appropriate to exercise it in the present circumstances.
10. In my view, the SSMC records are highly likely to include at least some directly relevant material and much material of some relevance. It is also noted that:
    • the Commission already has access to a considerable portion of the SSMC records (see [21]) and, if none of the more recent records was produced, this may lead to a distorted assessment of UJV's health;
    • UJV has accepted that the Goloub Records are relevant and the SSMC records may contain information that records UJV's views as to his treatment by Dr Goloub; and
    • UJV has previously conceded that the SSMC records would be relevant to the extent that they related to consultations and tests paid for by the Commission.
11. If UJV had undertaken (or arranged for) the SSMC records to be sorted into the two categories outlined at [8]-[9], this might have gone some way to assisting the resolution of any dispute about the relevance of any particular SSMC records. However, that has not occurred and, in those circumstances, there is no evidentiary basis on which the Tribunal can be satisfied that the production of those documents ought to be limited.
12. It would also be impractical for the Tribunal to seek to undertake that exercise and, in any event, the relevance of some records may not be apparent until the hearing.
13. Dr Strauss' comment that he had sufficient information to form his opinion may be accepted as being an accurate statement of his position at the time. That said, if he was confronted with new material casting doubt on the information he was provided when he met with UJV, he would necessarily need to revisit his opinion.
14. For these reasons, I consider that it is appropriate to direct the principal registrar to make arrangements for the Commission to inspect the summonsed records. As they have been provided by SSMC in hard copy, it is likely that the Commission will need to attend the Tribunal's premises and identify which records it wishes to copy.

1. On 25 November 2024, UJV wrote to VCAT, copying the Commission, indicating that the Commission has advised him that it 'will not consider any requests and recommendations from Dr. Strauss and Dr. Goloub for psychology treatment beyond [November] because the matter is still with VCAT'. He observed that this leaves him 'without much needed and recommended treatment for what seems to be many months to come'. He requested that this be considered in the Tribunal's 'assessment and outcome' and that VCAT might 'perhaps allow for some extension for the unused sessions under the [Commission's] decision under Z250/2024'.
2. While I appreciate UJV's concerns about the cessation of psychological treatment which he believes the Commission is liable to fund under the TA Act, that is the question at the heart of this proceeding and the Tribunal is only empowered to vary or set aside a decision after conducting a review hearing.[21]
3. The only discretion that may be exercised before the final hearing of a review proceeding is to 'invite the decision-maker to reconsider the decision'.[22]
4. If that invitation is issued, the decision-maker may of course affirm its original decision.[23] Given the clear position of the Commission to date, inviting the Commission to reconsider its decision before it has had an opportunity to consider the SSMC records and ask Dr Strauss whether any of that material affects his opinion, is likely to further delay the finalisation of this matter.
5. On that basis, I do not consider it appropriate to issue an invitation to the Commission to reconsider its decision of 10 November 2023.

[1] Order made by Deputy President Proctor dated 27 June 2024.

[3] Pizer's Annotated VCAT Act (E Nekvapil SC, 7th Ed; Thomson Reuters, 2022) [104.80] (referencing Kakoullis v Transport Accident Commission [2006] VCAT 1051 and Garde-Wilson v Legal Services Board [2007] VCAT 1406 [51] and [56]).

[5] The Commission's submissions were filed and served on 15 November 2024 ('ROS') and Mr Koucharev's filed and served his submissions on 22 November 2024 ('AOS').

[8] Hansard (Legislative Assembly), 29 July 2010, 64.

[15] Opinion of Dr Strauss dated 28 August 2024, 11 (response to question 4).

[16] Ibid, 13 (response to question 9).

[18] [2010] VCAT 269.

[20] [2019] VSC 488 [37]-[39]