Wiechula v Return to Work Corporation of South Australia [2026] SAET 38

SAET|2026-03-18|Before: Magistrate Barnett

By application for directions dated 26 February 2026, the applicant Christopher Noel Wiechula (Mr Wiechula) has sought the following orders:
1. That this application be heard and determined on an ex parte basis.
2. The applicant is released from its obligation to the Court under the principle in Hearne v Street (commonly referred to as the Harman undertaking), to enable the use of the documents for the purposes of proceedings in the Magistrates Court of South Australia, being matter number CIV-25-000029 - Christopher Noel Wiechula v Christy Graff.
In support of the application was an affidavit of Spiros Andrew Piliouras (Mr Piliouras) sworn on 26 February 2026. The affidavit was read and taken into account when considering the submissions received and whether the order sought should be made.

The application for directions identifies the SAET case number as 'ET-25-00029'. The number identified is that of the substantive proceeding currently in the Magistrates Court of South Australia which has been referred to as a proceeding between Mr Wiechula and a Ms Christy Graff. There are no current originating and substantive proceedings involving Mr Wiechula in this Tribunal. He had previously filed an application for expedited decision in 2023, which had been the subject of orders. On 3 July 2024, sealed orders were issued by the Tribunal which contained final orders for a proceeding numbered ET-23-02855. It was a proceeding between Mr Wiechula and the respondent Return to Work Corporation of South Australia (the Corporation). The final orders of 3 July 2024 confirmed a decision of the Corporation dated 19 June 2023 which rejected Mr Wiechula's claim for compensation arising from a right humerus fracture sustained on 23 December 2021. Ordinarily in such circumstances, a subsequent application would be the application for an order to be in its general form, but there is some authority in support of an application in the original proceeding giving rise to the obligation in law. If the correct approach, where there have been final orders, is to make application in the general form, then I would exercise the power conferred by and of the (SA) (SAET Act) and to treat the matter as an irregularity of form capable of correction.

"certain documents contained within the Book of Documents..." In written submissions dated 2 March 2026, solicitors for Mr Wiechula refer specifically to a number of documents.[4] I proceed on the basis they are the documents intended to be the subject of the application. 3. Mr Piliouras did not state in his affidavit whether the documents had been produced in the course of the investigation of the claim by the Corporation, the employer, or another party. In written submissions, Mr Piliouras submitted the documents which are the subject of the application were "produced under the compulsory disclosure regime of this Tribunal per the South Australian Employment Tribunal Rules 2022 (rules 32 and 57 and their sub-rules) and section 28(b) of the South Australian Employment Tribunal Act 2014 (SA)". Rule 57 addressed, at the time, the obligation of disclosure and production of documents between parties to disputed proceedings in the Tribunal. 4. Mr Piliouras deposed in his affidavit that "the release sought does not prejudice or adversely affect the interests of the [Corporation]". The basis of that statement was not explained in the affidavit. The affidavit did not address whether the release from the obligation in law or the modification of that obligation so as to allow the use of the documents in another jurisdiction may adversely affect the interests of another party. One of the documents is the transcript record of an interview with another person. 5. In his affidavit, Mr Piliouras deposed to Mr Wiechula's proceeding in the Magistrates Court of South Australia being a claim for damages for personal injury by reference to the cause of action of negligence and relating to 'a surgical procedure undertaken following the rejected work injury event'. Mr Piliouras has not addressed in his affidavit the detail of how the documents which are the subject of the application to this Tribunal are relevant to the proceedings in the Magistrates Court. It appears the documents are notification summaries, transcript of interview of a witness and documents prepared in relation to the workers compensation claim pursued by Mr Wiechula.[5] It appears the claim in the Magistrates Court is for damages for injury sustained whilst being treated for the claimed work injury. Mr Wiechula, in bringing his application in the Tribunal, accepts the documents that are the subject of the application are required to be discovered and produced as an obligation in the Magistrates Court proceedings. 6. Mr Piliouras deposed in his affidavit to the release of the "implied undertaking" being sought in order to allow the proceedings in the Magistrates Court to proceed. He deposed to the Magistrates Court awaiting the release in order to allow further progression of the claim in that Court. Exhibited to the affidavit was a copy of the order made by Magistrate Barnett at a directions hearing on 26 February 2026. The relevant orders were as follows: 1. The applicant's solicitor is to advise the respondent's solicitor as to the progress of any application to SAET in respect of a release from the Harman undertaking. 2. The matter is adjourned for further directions on 12 March 2026 at 10am. 7. The record of outcome of the Magistrates Court states that there had been no appearance for Mr Wiechula at that directions hearing. The true position is that the Magistrates Court noted there may be application by Mr Wiechula to be released from the "Harman undertaking" and adjourned the proceedings to allow that application to be made. 8. Whilst Mr Wiechula requested his application be heard ex parte, I determined the Corporation should be given the opportunity to be heard. 9. Mr Wiechula had previously sought the consent of the Corporation to his application to be released from the "implied undertaking" to the Tribunal. Mr Piliouras wrote to the solicitor for the Corporation on 11 November 2025. There should have been a response. However, for the reasons set out above, a meaningful response as to the merit of the application may not have been possible. 10. Upon becoming aware of the application to the Tribunal having been filed, the Corporation advanced brief written submissions on 6 March 2026. It properly identified the documents it understands are the subject of the application and did not oppose the obligation to the Tribunal in relation to those documents being modified so as to allow Mr Wiechula to discover and produce those documents to the respondent in the Magistrates Court action.

I recently had occasion to address the legal principles related to the obligation in law addressed by the High Court in Hearne v Street,[6] in Rayan v Return to Work Corporation of South Australia (Murphy Transport Solutions Pty Ltd) (Rayan).[7] In the circumstances, I summarise the relevant principles as follows:
1. The common reference to a "Harman undertaking" is a reference to Harman v Secretary of State of the Home Department.[8] Their Lordships referred to the relevant obligation as flowing from an "implied undertaking".[9]
2. Where a party to litigation is compelled, either by reason of a rule of court, a specific order of the court, or otherwise, to disclose documents or information, another party obtaining the disclosure cannot, without leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence.[10]
3. In Australia, it has been observed the term "implied undertaking" may be misleading unless it is understood as an obligation of law arising from the circumstances in which the material was generated and received.[11]
4. The obligation of law has been held to apply to documents inspected after discovery.[12]
5. The existence of the obligation both facilitates and protects the process of discovery and, as a result, encourages parties to comply with their obligation as to the disclosure of documents. The obligation also strikes a balance between privacy that would ordinarily exist and the disclosure of such documents through the compulsory nature of the Court's processes whilst also preventing an abuse of the Court's processes for an ulterior purpose.[13]
6. The obligation extends to any person who, knowing that the material was generated in legal proceedings, uses it for purposes other than those of the proceedings. In the absence of being released from the obligation, such a party may commit a contempt of court.[14]
7. The obligation of law may be released or modified by the court but that power will only be exercised where special circumstances appear.[15]
8. The requirement of "special circumstances" will be satisfied if there is some circumstance that warrants relief from the obligation of law.[16]
9. The obligation of law must yield to inconsistent statutory provisions and to the requirements of curial process in other litigation.[17]
10. In exercising the discretion as to whether to release or modify the obligation of law, the court will have regard to 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, the nature of the information in the document, the circumstances in which the document came into the hands of the applicant for leave, and the likely contribution of the document to achieving justice in the second proceeding.[18]
11. Where there are proceedings in a Court or Tribunal other than the Court or Tribunal to which the legal obligation is owed, either Court or Tribunal may modify the legal obligation so as to allow a party to comply with a statutory or curial obligation elsewhere but only the Court or Tribunal to which the legal obligation is owed may relieve the party from the obligation altogether.[19]
12. Where two Courts or Tribunals may be the subject of an application to modify the legal obligation, the Court in which the application is brought will need to consider the most appropriate forum.

The application of the legal principles in this case

There have been a number of procedural irregularities in this case. An Application for Directions is to set out the orders sought from the Tribunal. The text of the orders are required to be in a form that are able to be clearly understood and thereby complied with. That is especially important in this area of the law where a contravention of the obligation of law may constitute a contempt of court. As noted earlier in these reasons, the order sought, as set out in the Application for Directions, refers only generally to "the documents".
The affidavit of Mr Piliouras read in support of the application, contains conclusory statements without establishing the underlying factual basis. An illustration is paragraph 7 which only relevantly states:

The release sought does not prejudice or adversely affect the interests of the Respondent.

Much of the factual detail relating to the application is only set out in the written submissions.
A procedural irregularity, of lesser significance, was identified in Rayan. There, s 80 of the South Australian Employment Tribunal Act 2014 (SA) (SAET Act) was utilised to cure the irregularity.[20] Whilst I will utilise s 80 of the SAET Act to cure the multiple irregularities in this case, that should not become routine. Legal practitioners should familiarise themselves with the relevant practises and procedures of the Tribunal and consider the legal principles to be applied, when preparing documents.
I am satisfied that the documents that are the subject of the application to this Tribunal, as ultimately identified by both parties, were exchanged between parties under compulsion following orders and directions of the Tribunal. The obligation in law to then use the documents solely for the purpose of the proceedings in this Tribunal has thereby arisen. There is no evidence that any of the relevant documents were received in evidence in the earlier proceeding in this Tribunal.
As I understand the application, notwithstanding the reference to Mr Wiechula being "released", is not for the applicant to be relieved of the obligation in law, it is for the obligation to be modified so as to allow the documents to be discovered and produced to the respondent in the Adelaide Magistrates Court proceedings, where there would be an obligation to do so in accordance with its Rules of Court. In such a case it is vital that the documents be clearly identified in the application as to the order sought.
Whilst Mr Piliouras should have provided more detail as to how the documents are directly relevant to an issue to be tried in the Magistrates Court, I am prepared to rely upon his assurance, as an officer of this and the Magistrates Court, that the documents are relevant and that there is an obligation of disclosure and production in the Magistrates Court.
In the circumstances, I find special reasons exist to modify the obligation in law to this Tribunal so as to allow the documents specified in the submissions of the applicant to be discovered and produced in Magistrates Court action number CIV-25-000029. Put another way, I am persuaded the obligation in law to this Tribunal must yield to the legal obligation upon the applicant to disclose and produce to the respondent in the Magistrates Court action documents that are directly relevant to that action.
Mr Wiechula is to prepare orders of the Tribunal which conform with these reasons and which identify clearly the documents that are the subject of the order.

[1] Holpitt Pty Ltd v Varimu Pty Ltd (1991) FCR 576, 577 (Burchett J); Crest Homes Plc v Marks [1987] AC 829, 854.

[2] Lohmann v Return to Work Corporation of South Australia [2019] SAET 213 [93]-[94].

[5] None of the documents that are the subject of the application were produced to the Tribunal.

[10] Hearne v Street supra [96]. The evidence in this case did not establish that any of the relevant documents had been received in evidence.

[13] Partridge v Utilities Management Pty Ltd [2024] SAET 82, [20]; Hearne v Street supra [109], [111] (Hayne, Heydon and Crennan JJ).

[14] Hearne v Street supra [103], [109].

[16] Helicopter Aerial Surveys Pty Ltd v Gary Robertson [2015] NSWSC 2104.

[17] Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10, 33.

[18] Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217.

[19] Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd (No 2) [2023] WASCA 108.

Australian Employment Tribunal Rules 2022

Australian Employment Tribunal Act 2014

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (21 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (3)