Warner and Comcare (Compensation) [2017] AATA 2709 (19 December 2017)

Safety, Rehabilitation and Compensation Act 1988, ss 14, 16, 58, 69(a), 70, 72(a)

Chin and Comcare [2017] AATA 634

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

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

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

Otter Gold Mines Ltd v McDonald (1997) 76 FCR 467

Prudential Assurance Co Ltd v Fountain Page Ltd [1991] 1 WLR 756

1. An orthopaedic surgeon wrote a report on a claimant, who suffered from an aggravation of a lumbar spine condition. Some of that report was informed by, or reproduced information from, material that had been produced under summons in proceedings in the Tribunal. The question arises whether an implied undertaking applies to Comcare in relation to that report and, if it does, whether Comcare should be released from that implied undertaking.
2. I answer the interlocutory questions:
   • An implied undertaking applies to Comcare in relation to the material that was produced under summons and the report - to the extent that the report is informed by, or reproduces information from, that material.
   • Comcare requires a release from that implied undertaking before it can use the material or the report in the management of the claimant's other claims for compensation under the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act). That is because those other claims relate to different injuries than the injury that was the subject of the proceedings in the Tribunal. The management of those other claims is collateral or ulterior to the purpose for which the material was produced under summons.
   • Even if Comcare were to obtain a copy of the report from the claimant, using its powers under s 58 of the SRC Act, the implied undertaking would still apply to the copy of the report obtained. Comcare should not be released from that implied undertaking.

1. Mr Donald Warner was employed by the Commonwealth Scientific and Industrial Research Organisation. On 8 November 1996, he made a claim for compensation. He said that, while lifting a bag of cement into a work vehicle, he had aggravated a back injury. Comcare accepted liability under s 14 of the SRC Act for "aggravation of lumbar injury acute disc prolapse".
2. In 1998, Mr Warner started having regular massage treatment for his back condition. It appears that Comcare paid him compensation, under s 16 of the SRC Act, in respect of some or all of this massage treatment. On 4 February 2016, Comcare decided that it would no longer pay for Mr Warner's massage treatment. On 21 March 2016, Mr Warner requested a reconsideration of that determination. On 6 April 2016, Comcare affirmed its determination.
3. On 6 June 2016, Mr Warner applied to the Tribunal, under s 64 of the SRC Act, for review of that decision. On 2 December 2016, Mr Warner saw Dr Mohamad Mourad, a consultant orthopaedic surgeon. On 13 December 2016, Dr Mourad wrote a report. I will call this the report.
4. On 23 January 2017, Mr Warner notified the Tribunal, in accordance with s 42A(1A) of the Administrative Appeals Tribunal Act 1975 (the AAT Act), that he had withdrawn his application for review. Because of s 42A(1B) of the AAT Act, the Tribunal was taken to have dismissed his application.
5. On 13 November 2017, Comcare wrote to the Tribunal and Mr Warner. Comcare referred to material that had been produced under summons in this matter, and was referred to in the report. I will call this the summonsed material. Comcare said that the report and the summonsed material are relevant to the management of two "separate but related" claims for compensation that Mr Warner had made: a claim of occupational overuse of his wrists, arms, shoulders and neck (sustained in 1997), and a claim of osteoarthrosis in his shoulders (sustained in 1998). I will call these the other claims. Comcare requested that it be released from the implied undertaking in respect of the summonsed material so that it can consider the report in managing the other claims.
6. On 29 November 2017, I conducted a hearing in this matter. Mr Warner and Comcare made oral submissions about whether the implied undertaking applies to the report or the summonsed material and, if it does, whether Comcare should be released from it. Mr Warner asked for an opportunity to make written submissions on these issues, which he did. Comcare also made written submissions.

1. The interlocutory issues are these:
   • Does an implied undertaking apply to Comcare in relation to the summonsed material or the report?
   • If so, does Comcare require a release from that implied undertaking before it can use the summonsed material or the report in the management of the other claims?
   • If so, should Comcare be released from that implied undertaking, noting that Comcare has the power, under s 58 of the SRC Act, to require Mr Warner to provide Comcare with a copy of the report?

1. In Chin and Comcare,[1] I considered the nature of the implied undertaking. I noted that a majority of the High Court, in Hearne v Street, had set out the following "background legal principles":

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. The types of material disclosed to which this principle applies include documents inspected after discovery, answers to interrogatories, documents produced on subpoena, documents produced for the purposes of taxation of costs, documents produced pursuant to a direction from an arbitrator, documents seized pursuant to an Anton Piller order, witness statements served pursuant to a judicial direction and affidavits. ...

It is common to speak of the relevant obligation as flowing from an "implied undertaking".[2]

I noted that the Court had explained that the implied undertaking is "a legal obligation which arises by operation of law by virtue of the circumstances under which the relevant person obtained the documents or information".[3] I noted that that obligation applies in the Tribunal.[4] I also noted that the rule about implied undertakings is sometimes called the Harman rule, after the decision of the House of Lords in Harman v Secretary of State for Home Department.[5]

1. Having considered these and other authorities, I concluded in Chin that an implied undertaking applied to Comcare in relation to medical reports,[6] but only to the extent that those reports were informed by, or reproduced information from, documents that had been produced under summons.[7]
2. The situation in Mr Warner's matter is the same. The report and the summonsed material are clearly the sort of material in relation to which an implied undertaking can apply. Comcare received the summonsed material after its production had been compelled. Comcare provided the summonsed material to Dr Mourad, who referred to it in the report. It follows that an implied undertaking applies to Comcare in relation to the summonsed material and the report - to the extent that the report is informed by, or reproduces information from, the summonsed material.

Does Comcare require a release from that implied undertaking?

1. In Chin, I also considered whether the implied undertaking applies in relation to Comcare's use of documents for claims management purposes. I noted that Brennan J had explained, in Esso Australia Resources Ltd v Plowman (Esso), the "underlying principle" where there is an implied undertaking: "a party who obtains the production of documents or the disclosure of information for a particular purpose cannot use the documents or information for a 'collateral or ulterior purpose'".[8] After considering a number of authorities on the meaning of "collateral or ulterior purposes",[9] I concluded that claims management purposes were not collateral to the proceedings in Chin.[10]
2. But, in Chin, Comcare wanted to use the documents in issue in the management of claims relating to the same injuries to which the proceedings related. So, the claims management purposes in Chin were not purposes other than those for which those documents were given.[11] I noted that that would not necessarily be the case where - as here - the claims management purposes, and the proceedings in which the documents were produced, relate to the same person but to different injuries.[12] Mr Warner's application for review related to the 1996 aggravation of his lumbar spine condition. Comcare seeks to use the report to manage the other claims: a claim relating to an injury to his wrists, arms, shoulders and neck (in 1997), and a claim relating to an injury to his shoulders (in 1998).[13] Those claims management purposes are purposes other than those for which the summonsed material was given.
3. It follows that the claims management purposes that Comcare has identified are collateral or ulterior to the purpose for which the summonsed material was compelled to be produced in these proceedings. So, Comcare requires a release from the implied undertaking before it can use the report - to the extent that the report is informed by, or reproduces information from, the summonsed material - in the management of the other claims.

Should Comcare be released from that implied undertaking?

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.

(2) A claimant who has received a notice under subsection (1) shall be taken to have complied with the notice if the claimant gives the relevant authority the information or document specified in the notice within 28 days after the date of notice or within such further period (if any) as the relevant authority has allowed.

(3) Where a claimant refuses or fails, without reasonable excuse, to comply with a notice under subsection (1), the relevant authority may refuse to deal with the claim until the claimant gives the relevant authority the information, or a copy of the document, specified in the notice.

1. Comcare says that the report is relevant to the other claims. Mr Warner was served with a copy of the report during these proceedings. Comcare points out that it can give Mr Warner a notice under s 58(1), requesting that he give Comcare a copy of the report.[14] If he does not comply with that notice, Comcare can refuse to deal with the other claims. If he does comply, Comcare will have obtained a copy of the report in circumstances where (Comcare says) no implied undertaking arises.
2. Comcare says that it should be released from the implied undertaking because s 58 means that Comcare "is able, notwithstanding the implied undertaking, to lawfully obtain and use Dr Mourad's report and the [summonsed material]" in its management of the other claims. "Therefore", Comcare says, "there is no utility for the Tribunal to refuse the release".
3. Comcare quotes Mason CJ who said, in Esso, "[n]o doubt the implied obligation must yield to inconsistent statutory provisions".[15] But I do not think that the operation of s 58 is inconsistent with the continued application of an implied undertaking. Under s 58, Comcare can (effectively) compel a claimant to give Comcare any information or document in the claimant's possession that is relevant to their claim. It does not follow that there can be no restriction on how Comcare can use that information or document once it has been given.
4. Comcare points to its statutory obligation to make determinations about claims "accurately and quickly" and "guided by equity, good conscience and the substantial merits of the case, without regard to technicalities" (ss 69(a) and 72(a) of the SRC Act). Comcare also points to its "power to do all things necessary or convenient to be done for, or in connection with, the performance of its functions" (s 70). Comcare says that, "[w]hen read together, these provisions oblige [Comcare] to exercise its power under s 58 of the SRC Act when it is aware that a claimant has information or a document relevant to a claim." These provisions are general exhortations to Comcare to operate efficiently and ethically. I do not think that these provisions are intended to operate so that an implied undertaking does not continue to apply to information or a document obtained under s 58.
5. In coming to this view, I note the context in which Mason CJ referred, in Esso, to inconsistent statutory provisions. The full paragraph, from which Comcare quoted, reads:

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.[16]

1. In my view, it follows that, if Comcare obtains a copy of the report from Mr Warner under s 58, the implied undertaking will continue to apply to the report to the extent that it is informed by, or reproduces information from, the summonsed material. Comcare has not proposed any reason why it should be released from the implied undertaking, apart from arguing that it does not need to be - that there would be no utility in the Tribunal not releasing Comcare from the undertaking. But, unless Comcare is released from that implied undertaking, Comcare will not be able to use that copy of the report in its management of the other claims. I do not think there is any reason to release Comcare from the implied undertaking in this matter.

1. An implied undertaking applies to Comcare in relation to the summonsed material and the report - to the extent that the report is informed by, or reproduces information from, the summonsed material. Comcare requires a release from that implied undertaking before it can use the summonsed material or the report - to that extent - in the management of the other claims. There is no reason to release Comcare from that implied undertaking.

I certify that the preceding 23 (twenty-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member Popple

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Claims and Liability Management Division, Comcare

[1] [2017] AATA 634.

[2] [2008] HCA 36; (2008) 235 CLR 125 at 154-155 [96]-[97] per Hayne, Heydon and Crennan JJ, footnotes omitted. See [2017] AATA 634 at [16].

[3] [2008] HCA 36; (2008) 235 CLR 125 at 160 [108] per Hayne, Heydon and Crennan JJ, citing Prudential Assurance Co Ltd v Fountain Page Ltd [1991] 1 WLR 756; [1991] 3 All ER 878.

[4] Otter Gold Mines Ltd v McDonald (1997) 76 FCR 467 at 471-473 per Sundberg J.

[5] [1983] 1 AC 280. See [2017] AATA 634 at note 7.

[6] Coincidentally, the medical reports at issue in Chin were also written by Dr Mourad.

[7] [2017] AATA 634 at [21].

[8] Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10 at 36 per Brennan J. See [2017] AATA 634 at [23].

[9] [2017] AATA 634 at [23]-[25].

[10] [2017] AATA 634 at [26]-[27].

[11] Hearne v Street [2008] HCA 36; (2008) 235 CLR 125 at 154 [96] per Hayne, Heydon and Crennan JJ: see [10] above. See also [2017] AATA 634 at [24] and [28].

[12] [2017] AATA 634 at [29].

[13] See [7] above.

[14] Comcare is the "relevant authority" in relation to Mr Warner's claims.

[15] (1995) 183 CLR 10 at 33 per Mason CJ, with whom Dawson J (at 39) and McHugh J (at 48) agreed.

[16] (1995) 183 CLR 10 at 33 per Mason CJ: see [19] above.