Federal Court of Australia

Comcare v Administrative Review Tribunal [2026] FCA 1481

ORDERS

THE COURT ORDERS THAT:

1.    The originating application dated 1 December 2025 is dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

HILL J:

introduction

1    The Applicant (Comcare) is seeking judicial review under s 39B of the Judiciary Act 1903 (Cth) of a decision of the Administrative Review Tribunal: Sewell and Comcare (Practice and procedure) [2025] ARTA 2326 (ART). The Tribunal refused a joint application by Comcare and the Second Respondent (Mr Sewell) to be released from their duty of confidentiality in respect of summonsed medical records obtained for the purposes of the Tribunal proceedings.

2    Comcare contends that the Tribunal committed two jurisdictional errors:

    First, Comcare contends that the usual implied duty of confidentiality applicable to summonsed documents is inconsistent with the performance of Comcare’s functions under the Safety Rehabilitation and Compensation Act 1988 (Cth) (SRC Act).

    Second, Comcare contends that Comcare’s use of the summonsed records for the future management of claims made by Mr Sewell would be so interconnected with the Tribunal proceeding that the proposed use is not “collateral” for the purposes of the implied duty of confidentiality.

3    For the following reasons, there is no jurisdictional error in the Tribunal’s decision and Comcare’s application is dismissed.

4    Evidence: Comcare relies on an affidavit of Ms Rachel Cubela, solicitor, sworn on 17 February 2026, which sets out the procedural background and annexes relevant documents.

background

5    Application for compensation (Jan 2024): On 30 January 2024, Mr Sewell made a claim for compensation under the SRC Act (ART [77]).

6    Primary decision accepted liability (Mar 2024): On 22 March 2024, an officer in Comcare determined to accept liability pursuant to s 14 of the SRC Act (ART [60]).

7    Determination accepting liability revoked (Jul 2024): The Commonwealth, acting through the Department of Defence as the employing agency, requested reconsideration of this decision on 14 June 2024. On 11 July 2024, Comcare reviewed the decision and revoked the s 14 determination and thereby denied liability for the claimed injury (ART [61]). This was the reviewable decision before the Tribunal.

8    AAT application (Aug 2024): On 14 August 2024, Mr Sewell applied to the former Administrative Appeals Tribunal (AAT) for review of the reviewable decision (ART [62]).

9    Summons to produce (Nov 2024, Feb 2025): On applications by Comcare, the Tribunal on 18 November 2024 issued a summons to produce to Ramsay Psychology Cairns and Southbank Medical Clinic, and on 5 February 2025 issued a summons to produce to Associate Professor Terrence Bartholomew. During the course of the Tribunal proceedings, Ramsay Psychology Cairns, Southbank Medical Clinic and Associate Professor Bartholomew produced documents to the Tribunal. The Tribunal granted Comcare and Mr Sewell access to these documents.

10    Summonsed documents: The documents obtained by the summons (the summonsed documents) were notes of medical practices made to aid the diagnosis and treatment of Mr Sewell’s medical conditions (ART [5]). The documents from Southbank Medical Clinic were a selection of notes of attendance from 18 September 2023 to 14 November 2024, consisting of 12 pages. The records of Ramsay Psychology consist of about 9 pages of consultation notes from 8 May to 28 August 2024. The documents of Associate Professor Bartholemew are handwritten notes from the period 26 February to 8 April 2024 (ART [6]-[7]).

11    Joint application for consent decision and release from implied duty (Aug 2025): On 7 August 2025, Comcare and Mr Sewell reached agreement to resolve the Tribunal proceedings. On that day, Comcare’s lawyers emailed the Tribunal a signed agreement seeking a consent decision under s 103 of the ART Act, and a joint application by the parties seeking an order from the Tribunal releasing the parties from the implied duty of confidentiality in relation to the summonsed documents. The latter order would permit the use of the documents for the sole purpose of managing Mr Sewell’s claim for compensation under the SRC Act.

12    Tribunal makes consent decision (Aug 2025): On 29 August 2025, the Tribunal made a consent decision under s 103 of the ART Act, which set aside the reviewable decision and decided that Comcare was liable to pay compensation to Mr Sewell pursuant to s 14 of the SRC Act, in respect of an “adjustment disorder” injury.

13    Tribunal refuses joint application (Oct 2025): After conducting an oral hearing on 4 September 2025, the Tribunal decided on 31 October 2025 to dismiss the joint application to be released from the implied duty of confidentiality in respect of the summonsed documents.

14    Implied duty of confidentiality: The Tribunal discussed the implied duty of confidentiality (explained in Harman v Secretary of State for Home Department [1983] 1 AC 280 and Hearne v Street [2008] HCA 36; (2008) 235 CLR 125) at ART [5]-[18].

    The duty of confidentiality (sometimes called the Harman obligation) arises when a document or information is provided to a court or tribunal pursuant to lawful compulsory process. The party obtaining disclosure cannot, without leave of the court or tribunal, use the document or information for any purpose other than that for which it was given, unless the document or information is received into evidence (or is otherwise in the public domain) (ART [13]-[16]).

    This obligation extends to documents obtained from a non-party to the litigation by way of summons or subpoena (ART [17]).

15    The parties made four arguments why they should be released from the Harman obligation to permit the summonsed documents to be used for the proposed purpose of managing Mr Sewell’s claim for compensation under the SRC Act.

16    Waiver of confidentiality? First, the parties submitted that confidentiality in documents can be waived by an affected party. The Tribunal found that the relevant documents, although they were medical records relating to Mr Sewell, were owned by the doctor that created them (ART [33]). Mr Sewell could not waive rights of confidentiality of a third party (ART [31]). That reasoning is not challenged in these proceedings.

17    Not a “collateral” purpose; special circumstances? Second, the parties submitted that the proposed use of the summonsed documents (to assist with making future decisions in relation to Mr Sewell’s claim for compensation under the SRC Act) was not “collateral” to the purpose for which those documents were acquired by the Tribunal. Third and alternatively, it was submitted that there were sufficient “special circumstances” to justify releasing the parties from their duty of confidentiality.

18    The first aspect of this argument relied on decisions including Gavan v FSS Trustee Corporation [2019] NSWSC 667 for the proposition that the Harman obligation did not prevent the use of documents acquired compulsorily for one process in a parallel, interconnected process (see ART [36]). The Tribunal noted that, on this approach, the Harman obligation did not apply (meaning that it was not necessary to obtain leave for this interconnected use) (ART [46]).

19    The Tribunal found that the future management of Mr Sewell’s claims for compensation under the SRC Act was not a parallel or interconnected process to the issue in the Tribunal proceedings; and found that there were not any “special circumstances” that would justify releasing the parties from the Harman obligation.

(a)    The issue in the Tribunal proceeding was whether Comcare was liable to pay compensation under s 14 of the SRC Act. That process concluded with the order made under s 103 of the ART Act finding that Comcare was liable (ART [63], [69]).

(b)    The Tribunal was prepared to accept that information provided to the Tribunal by compulsory processes could be used by Comcare to reconsider the underlying determination of liability, under s 62 of the SRC Act (ART [66]-[68]).

(c)    However, the use of summonsed documents for any other purpose, such as potential future claims and requests, was ulterior and collateral to the review proceedings (ART [78]). Once liability is established, the future decisions to be made do not reconsider the liability to pay compensation, unless Comcare comes into possession of new information that erodes the basis on which liability for injury was accepted (ART [80]). Cases such as Comcare v DSLB [2025] FCAFC 13; (2025) 307 FCR 565 dealt with Comcare’s power to revoke, vary or substitute a decision on its own motion under s 62 of the SRC Act (ART [83]). But any subsequent review of liability under s 14 would be enlivened by subsequent evidence and circumstances (including new evidence), not review of existing information contained in the summonsed documents (ART [85]).

(d)    The Tribunal rejected an argument that the summonsed documents could be relevant to determine existing but unpaid claims for compensation under s 16 for medical treatment, or s 19 for incapacity payments. There was no evidence of any actual dispute over claims under s 16 or s 19, and this was not a matter to be assumed (ART [88]-[89]). Nor could any assumption be made about future claims for specific compensation. Experience showed that the disputes about whether specific compensation is payable in response to claims and requests do not rely on the evidence confirming liability under s 14, but rather on evidence going to other issues such as whether the employee has recovered from the injury or has suffered a consequential injury (ART [91]).

20    Inconsistent statutory provisions? Finally, the parties submitted that the Harman obligation was inconsistent with the SRC Act, particularly ss 58, 59, 69(a) and 71, and s 23 of the ART Act. The Tribunal rejected that argument.

(a)    The duty of Comcare to make determinations in respect of claims and requests under s 69(a) of the SRC Act was not a parallel process with sufficient interconnectedness with the review proceedings that the proposed use of the summonsed documents would not be a “collateral” purpose (ART [97]).

(b)    The Tribunal observed that no request for information or documents had been made under ss 58 and 59 of the SRC Act. The Tribunal stated further that a request by Mr Sewell of Comcare under s 59, or by Comcare of Mr Sewell under s 58, would breach the parties’ Harman obligation, which was a substantive legal obligation, and could not be subverted by subterfuge (ART [94]).

(c)    Section 23 of the ART Act applies when there is an application to review a decision, and requires the decision-maker to give to the Tribunal documents that are relevant to that review. The Tribunal stated that this obligation would only be engaged by a future application for review that is not yet in existence, and that the summonsed documents would still be subject to the Harman obligation in that situation (ART [96]).

21    Application for judicial review (Dec 2025): On 1 December 2025, Comcare lodged an application for judicial review of the Tribunal’s decision. That application contains two grounds of review:

    The first ground contends that the Tribunal fell into jurisdictional error by failing to find that the application of the Harman obligation is inconsistent with Comcare’s statutory powers and obligations in ss 69(a), 70 and 72(a) of the SRC Act.

    The second ground contends that the Tribunal fell into jurisdictional error in failing to find that Comcare’s future management of claims for compensation under the SRC Act was a purpose so interconnected with the Tribunal proceeding that it was not a “collateral purpose” for the purpose of the Harman obligation.

22    Comcare was granted leave at the hearing to amend the relief it sought, consequent on these grounds.

23    Hearing (Sep 2026): This application was heard on 22 September 2026. There was no contradictor to this application, because the parties in the Tribunal made a joint application to be released from the implied duty of confidentiality, and the Tribunal, as is appropriate, has filed a submitting appearance in this Court. The Court has appointed an amicus curiae, who has acted as contradictor.

24    The day after the hearing, Comcare’s lawyers sent my chambers an email stating that Mr Sewell would like the Court to be aware that he no longer consented to Comcare’s application to be released from the Harman obligation.

analysis

Is the Harman obligation inconsistent with the SRC Act?

25    Comcare’s first ground of review contends that the Harman obligation is inconsistent with, and gives way to, Comcare’s statutory functions and powers under the SRC Act, particularly ss 69(a), 70 and 72(a).

26    Harman obligation: In Hearne v Street at [96], Hayne, Heydon and Crennan JJ described the Harman obligation as follows (footnotes omitted):

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.

27    Their Honours stated that this obligation applies (among other things) to documents produced on a subpoena: Hearne v Street at [96], citing Eltran Pty Ltd v Westpac Banking Corporation [1990] FCA 354; (1990) 25 FCR 322. Implicit in this statement is that the Harman obligation can extend to documents produced by a non-party, as here: see Drivetime Radio Australia Pty Ltd v Pivotal Creative Solutions Pty Ltd [2010] NSWSC 1103 at [12] (Palmer J); Re Addstone [1998] FCA 1680; (1998) 30 ACSR 156 at 160 (Mansfield J). It is also common ground that the Harman obligation applies to documents produced in tribunal proceedings pursuant to compulsory process: see Otter Mines Ltd v McDonald [1997] FCA 694; (1997) 76 FCR 467 at 472 (Sundberg J).

28    The plurality in Hearne v Street held that the Harman obligation is a substantive legal obligation that arises by operation of the law (as opposed to its earlier description as an implied undertaking): Hearne v Street at [106], [108].

29    The Harman obligation is, however, subject to inconsistent statutory provisions: Esso Australia Resources Ltd v Plowman [1995] HCA 19; (1995) 183 CLR 10 at 33 (Mason CJ); Deputy Commissioner of Taxation v Rennie Produce (Aust) Pty Ltd (in liq) [2018] FCAFC 38; (2018) 260 FCR 272 at [29] (the Court). In assessing whether there is an inconsistency, the real issue is the content or scope of the Harman obligation, and describing the obligation as a “substantive common law right” distracts attention from that issue: Rennie Produce at [40].

30    SRC Act: Comcare submits that the Harman obligation is inconsistent with its statutory functions and powers under the SRC Act, and refers to the following provisions in particular:

    By s 69(a), Comcare’s functions include “to make determinations accurately and quickly in relation to claims and requests made to Comcare under [the SRC] Act”.

    By s 70, Comcare has power “to do all things necessary or convenient to be done for, or in connection with, the performance of its functions.”

    By s 72, in performing the function referred to in s 69(a), Comcare:

(a)     shall be guided by equity, good conscience and the substantial merits of the case, without regard to technicalities;

(b)     is not required to conduct a hearing; and

(c)     is not bound by the rules of evidence. (emphasis added)

31    Comcare’s arguments (inconsistency with SRC Act): Comcare submits that, where a regulator has a duty to make a decision and possesses information relevant to that decision to which the Harman obligation attaches then, depending on the statutory scheme, the Harman obligation may not prevent the regulator from having regard to the information for the purposes of making the decision. Comcare refers to the following examples.

32    In La Mancha Africa SARL v Commissioner of Taxation [2021] FCA 1564; (2021) 398 ALR 1, Davies J held that the Harman undertaking does not prevent the Commissioner of Taxation from using information in his or her possession when determining a taxpayer’s tax liability.

33    Section 166 of the Income Tax Assessment Act 1936 (Cth) (ITAA 1936) provides that the Commissioner must make an assessment of the amount of taxable income and the amount of tax payable thereon “[f]rom the returns, and from any other information in the Commissioner’s possession”. Section 166 not only permits but requires the Commissioner to act on information in his or her possession, regardless of how he or she came to have it. Accordingly, the application of the Harman obligation in this setting would “fetter what is the Commissioner’s obligation and statutory duty under the taxation laws”: La Mancha at [8].

34    To similar effect, Rennie Produce at [56] held that the Harman obligation is not a reason for a person not to comply with a valid notice issued under s 353-10 of Sch 1 to the Taxation Administration Act 1953 (Cth).

35    In Pedrana v Pedrana (No 2) [2012] FamCA 348; (2012) 48 Fam LR 89, Watts J held that the Harman obligation does not prevent the Child Support Registrar from using information provided by a mother in an application for a determination to depart from an administrative assessment of child support.

    Section 98H(1)(a) of the Child Support Assessment Act 1989 (Cth) (CSAA) provided that, in making a decision in relation to an application, the Registrar “may act on the basis of” the application and the documents accompanying it. That provision conferred a discretion on the Registrar to use or not use documents provided with an application: Pedrana (No 2) at [56]. Watts J held that there was no reason to read into s 98H(1) the qualification that the Registrar is not able to exercise this discretion in relation to documents that are subject to the Harman obligation: Pedrana (No 2) at [74].

    This conclusion was supported by a consideration of the practical consequences of the alternative interpretations. The Registrar would receive significant assistance in many cases from the type of information provided by the mother in that case, and this information would increase the timeliness and accuracy in making determinations to depart from child support assessments. Conversely, the efficient administration of the CSAA would be undermined by a potentially significant and inefficient process of applying to a court for leave to use this type of information: Pedrana (No 2) at [147].

36    Flexible beneficial scheme: Comcare accepts that the SRC Act does not contain any express provision comparable to s 166 of the ITAA 1936 or s 98H(1) of the CSAA. However, Comcare submits that the SRC Act allows for “progressive and evolving decision-making” under s 14 (liability to pay compensation), s 16 (compensation in respect of medical expenses), s 19 (compensation for injuries resulting in incapacity for work), and s 24 (compensation for injuries resulting in permanent impairment), citing Telstra Corporation v Hannaford [2006] FCAFC 87: (2006) 151 FCR 253 at [57] (Conti J, with Heerey J agreeing on this point at [10]). Comcare submits that findings of fact made for the purposes of a decision under s 14 may be revisited for decisions under the other provisions identified above. Comcare submits further that the SRC Act is a flexible, beneficial scheme which allows progressively for ongoing relief, and is designed to accommodate changing circumstances, citing Hannaford at [11] (Heerey J), [58] (Conti J).

37    SRC Act ss 69(a), 70: Comcare submits that, if the Harman obligation required Comcare to disregard relevant information in its possession, it would undermine the important statutory command in s 69(a) that Comcare make determinations accurately and quickly, referring to Wuth v Comcare [2022] FCAFC 42; (2022) 289 FCR 464 at [123] (Wheelahan J).

38    Comcare submits that it is implicit in the SRC Act that, in making a determination, Comcare may have regard to the claimant’s notice under s 53(1); the written claim provided under s 54(2); information obtained from requiring the employee to undergo a medical examination required under s 57; and information obtained from a claimant under s 58. It is then said that s 70 (the power to do all things necessary and convenient) allows Comcare to do things that are conducive to the more effective administration of Comcare’s functions, citing Northern Land Council v Quall [2020] HCA 33; (2020) 271 CLR 394 at [64] (Kiefel CJ, Gageler and Keane JJ). Comcare submits that s 70 contemplates that Comcare may use information beyond the sources of information arising from the specific provisions identified above.

39    SRC Act s 72(a): Comcare submits that s 72(a) of the SRC Act is designed to free a decision-maker of “constraints” (citing Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at [49] (Gleeson CJ and McHugh J)), meaning (it is said) constraints that might otherwise apply to the manner in which it determines a claim. Comcare submits that, although the Harman obligation is a substantive obligation imposed by law, it operates in a way that is procedural. It is said that the Harman obligation could require Comcare to disregard information going to the “substantial merits of the case”, which is said to be inconsistent with s 72(a) of the SRC Act.

40    Three further matters: Comcare refers to three further matters that are said to favour the view that the Harman obligation is inconsistent with the functions and powers conferred on Comcare under the SRC Act.

    First, Comcare notes that the Harman obligation would prevent the derivative use of information, as well as its direct use, citing Deputy Commissioner of Taxation v Shi [2021] HCA 22; (2021) 273 CLR 235 at [47] (Gordon J). Comcare submits that it would be an arbitrary result if documents that may be relevant to its determination of claims were permanently removed from its consideration.

    Second, Comcare refers to s 59 of the SRC Act, which provides that Comcare must give (on request of a claimant, the Commonwealth or a licensed corporation) “any document held by [Comcare] relating to the claim”. This obligation extends to documents subject to the Harman obligation: Cadbury Schweppes Pty Ltd v Amcor Limited [2008] FCA 398 at [13] (Gordon J). Comcare submits that it would be decidedly odd if Comcare were obliged to deliver documents to a claimant or a Commonwealth authority if it could not have regard to those documents. Section 59 is therefore said to be a contextual indication that Comcare may have regard to any document in its possession that relates to the claimant’s claim when performing its function of determining claims “accurately and quickly”.

    Third, Comcare notes that s 23 of the ART Act requires Comcare to give the Tribunal a copy of every document in its possession or control that is relevant to the Tribunal’s review of the decision. These would include documents obtained by Comcare through compulsory process. Comcare submits that it would be anomalous if it were prohibited from considering documents that, if the matter proceeded to review in the Tribunal, might be taken into account by the Tribunal “standing in the shoes” of Comcare.

41    Analysis (inconsistency with SRC Act): The key issue raised by this first ground is what is meant by the Harman obligation being “inconsistent” with a statutory scheme.

    Comcare correctly accepts that this is not a case like La Mancha or Pedrana (No 2), when the relevant statute conferred clear authority to use documents even if those documents were subject to the Harman obligation.

    Nor is this a case like Rennie Produce at [36] or Cadbury Schweppes at [13], when the relevant statute imposed a clear obligation to produce documents, even if those documents were subject to the Harman obligation.

42    Instead, the inconsistency contended for by Comcare is more in the nature that the application of the Harman obligation would detract from the performance of its function of determining claims under s 69(a); either by denying Comcare of information that is said to be relevant, or by requiring Comcare to apply for leave from the Tribunal (or a court) before it can use relevant information. (I note that, if Comcare’s argument is correct, then the SRC Act excludes the Harman obligation in relation to all information obtained compulsorily, whether by order of a court or of the Tribunal: the arguments set out above would not be limited to information produced under compulsion in Tribunal proceedings.)

43    Is Comcare deprived of relevant information? On the first matter (the Harman obligation deprives the Tribunal of relevant information), it might be noted that the Tribunal considered that the summonsed documents were not relevant to any later decisions to be made by Comcare in dealing with any claims made by Mr Sewell under the SRC Act.

    The summonsed documents went to whether Comcare had a liability under s 14 of the SRC Act. That liability could be reconsidered under s 62, and the Tribunal indicated that the summonsed documents could be used for the purposes of this reconsideration, potentially even without requiring the leave of the Tribunal (see ART [69], referring to the interconnected nature of this reconsideration).

    However, the Tribunal considered that the summonsed documents would not be relevant to any future decisions made under Pt II of the SRC Act (under provisions such as ss 16, 19 and 24). The Tribunal accepted that the SRC Act contemplated an evolving decision-making process, and that new evidence may come to light that undercuts the original finding of liability (ART [73]). However, in that situation, the reconsideration of the original finding would occur by reference to new evidence about subsequent events and circumstances, post-dating the original decision. The Tribunal considered that the summonsed material (going to the circumstances at the time of the initial finding of liability) would not be relevant for those purposes (ART [85]).

44    The connection between the summonsed material and future determinations by Comcare made under Pt II of the SRC Act is considered further below, in determining whether the proposed use of the summonsed documents was “collateral” to the purpose for which the summonsed documents were obtained. But if the summonsed material is not relevant to future decision-making (as found by the Tribunal), then the application of the Harman obligation does not deprive Comcare of relevant information. And if the summonsed material is relevant to future decision-making (contrary to the Tribunal’s reasons), then the two processes are connected and there would be a strong case for obtaining leave from the Tribunal for that use, as discussed below. In this case, the Tribunal refused to release the parties from the Harman obligation because it took the view that the summonsed documents were not relevant to any future decisions to be made by Comcare. Either way, the Harman obligation would not deprive Comcare of relevant information and there is no inconsistency in this regard between the Harman obligation and the SRC Act.

45    Comcare submits, however, that the Harman obligation does deprive it of relevant information, because the Harman obligation prohibits not only direct but also derivative use, which means (it is said) that Comcare cannot consider the summonsed documents even for the purpose of deciding whether to apply for leave to be released from the Harman obligation. It is true that the Harman obligation prevents derivative use of compulsorily acquired documents or information: see Deputy Commissioner of Taxation v Shi [2021] HCA 22; (2021) 273 CLR 235 at [47]-[48] (Gordon J). However, considering compulsorily acquired material for the purposes of deciding whether to apply for leave to be released from the Harman obligation would not amount to a “use” of that material prohibited by the Harman obligation, given that the cases expressly recognise that a party may apply for leave to be released from that obligation: see Hearne v Street at [107]. That said, if leave were refused, officers who had seen the summonsed documents for the purposes of applying for leave could not put that knowledge out of their minds, and therefore should not be making any decisions on the claim.

46    This reasoning covers the arguments based on ss 69(a), 70 and 72(a) of the SRC Act. The first and third of the further matters in [37] above also turn on the proposition that applying the Harman obligation to documents in the possession of Comcare would deprive it of relevant information when making determinations under s 69(a), which cannot be accepted for the same reason. The remaining matter (that Comcare is required by s 59(1)(a) to provide a claimant with any document in its possession that relates to the claimant’s claim on request) does not establish any anomaly: it is entirely neutral that Comcare may have documents in its possession that are relevant to one part of a person’s claim (liability under s 14) but not another.

47    Burden on Comcare’s functions? The second argument is that the Harman obligation burdens the exercise of Comcare’s functions under s 69(a) of the SRC Act, by requiring Comcare to obtain leave from the Tribunal (or a court) before it can use relevant information in its possession. (Again, Comcare’s arguments, if correct, would apply equally to documents produced under compulsion in court proceedings, as well as Tribunal proceedings.)

48    As noted, s 69(a) of the SRC Act provides that Comcare is to make determinations on claims “quickly and accurately”. Comcare submits that this general obligation is given content by s 61(1A) and s 62(6). However, those latter provisions do not advance the argument.

    Section 61(1A) provides that the determining authority “must consider and determine each claim for compensation under section 14 within the period prescribed by the regulations”. However, this requirement is limited in its terms to the initial decision under s 14. The extrinsic materials confirm that the reference in s 61(1A) to a claim under s 14 means “a claim that relates to initial liability”: see Explanatory Memorandum to the Safety, Rehabilitation and Compensation and Other Legislation Amendment Bill 2011 (Cth), p 4. Accordingly, s 61(1A) is not relevant when considering the use that can be made of documents produced compulsorily in proceedings to review a s 14 decision.

    Section 62(6) provides that any reconsideration of a determination must be decided within the period prescribed by the regulations (that is, 30 days from the day the determining authority receives the request: Safety, Rehabilitation and Compensation Regulations 2019 (Cth) reg 11A(2)). A “determination” is defined in s 60(1) to include determinations under provisions including ss 16, 19, 24 and 27 of the SRC Act. However, s 62(6) only applies to a reconsideration of a determination; not the original determination by Comcare. The legislative expectation seems to be that the factual material is more settled at the stage of reconsideration, and that these decisions can be made within a fixed time limit. In any event, the SRC Act and the Regulations do not provide any consequence if the reconsideration decision is not made within the prescribed period.

49    Comcare accepts that s 69(a) is in the nature of an exhortation: Wuth at [124] (Wheelahan J). The same is true of s 72(a): see Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [96] (Gageler J), discussing a similarly expressed provision in the Migration Act 1958 (Cth). An erroneous application of exhortatory provisions does not undermine the validity of an administrative decision, although “neglect” of those provisions may: Li at [97], citing R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott [1933] HCA 30; (1933) 50 CLR 228 at 243-244 (Rich, Dixon and McTiernan JJ). That is, neither ss 69(a) nor 72(a) imposes any absolute requirement that Comcare act with maximum possible speed and without constraint, meaning that the Harman obligation is not inconsistent with the SRC Act merely because its application may to some extent detract from the speed of Comcare’s decision, or impose a (legal) constraint on its process. Nothing in the material before the Court would suggest that applying the Harman obligation would amount to “neglecting” either of ss 69(a) or 72(a).

50    Comcare submits that it is notorious that Comcare has been criticised for taking too long to make decisions (see Wuth at [3]-[4] (Griffiths J)), and that the Tribunal is overworked. Even if I could be satisfied of these matters without evidence, neither of those matters rises to the level of “legislative fact” (or statutory fact) that would properly inform the interpretation of the SRC Act: as to which, see Gerhardy v Brown [1985] HCA 11; (1985) 159 CLR 70 at 142-143 (Brennan J); Thomas v Mowbray [2007] HCA 33; (2007) 233 CLR 307 at [614], [634] (Heydon J). For similar reasons, I do not think the question of interpretation can be guided by possible practical considerations about the risk that medical records will not be retained (by either the Tribunal or the medical practitioner) at the later point at which Comcare realises that summonsed documents produced at the s 14 stage are relevant to determining a claim under s 69(a).

51    It is true that, in Pedrana (No 2), Watts J held that the efficient administration of the CSAA would be undermined by a potentially significant and inefficient process of applying to a court for leave to use information contained in an application for a determination to depart from an administrative assessment of child support: Pedrana (No 2) at [147]. However, this practical consequence only confirmed an interpretation that followed from the terms of the CSAA itself. Implicit in this reasoning is that the type of information provided by the mother with her application in that case (financial information obtained in proceedings under the Family Law Act 1975 (Cth)) was of a type that is likely to be commonly provided, and to be of significant assistance. In that context, it was unlikely that Parliament intended the Registrar to obtain leave from a court or tribunal on a case-by-case basis to use information that was likely to be of significant assistance. Here, as discussed further below, Comcare’s argument is that information provided at the s 14 stage can be relevant when making determinations under other provisions in Pt II, depending on the circumstances. This potential relevance is not sufficient to establish that the SRC Act excludes the Harman obligation in its application to documents produced for the purposes of s 14 determinations.

52    Conclusion on inconsistency: For these reasons, ss 69(a), 70 and 72 of the SRC Act (whether alone or in combination) do not establish a statutory inconsistency that would prevent the Harman obligation from applying to documents produced on a summons in Tribunal proceedings to determine liability under s 14 of the SRC Act. The other matters referred to by Comcare (summarised in [40] above) do not take the argument any further. It may not be necessary to establish the same level of legislative certainty as required by the principle of legality (Rennie Produce at [39]-[40]), but the provisions relied on by Comcare are much too equivocal to exclude the Harman obligation, which is a substantive obligation, breach of which could amount to an offence against s 120(2) of the ART Act (when, as here, the documents are produced compulsorily in Tribunal proceedings).

53    The real issue is whether the proposed use is “collateral” to the purpose for which the summonsed documents were obtained, because this type of analysis will inform whether the Tribunal can or will grant leave for Comcare to use compulsorily acquired documents for the purposes of administering a claimant’s claims to compensation under s 69(a) of the SRC Act. That issue is considered next.

Is the proposed use of the summonsed documents a “collateral purpose”?

54    Comcare’s second ground of review contends that the proposed use of the summonsed documents (to assist Comcare’s future management of Mr Sewell’s claims for compensation under the SRC Act) is not a “collateral purpose” for the purposes of the Harman obligation.

55    Scope of Harman obligation: As noted, Hearne v Street at [96] stated that a document or information obtained under compulsory process cannot be used “for any purpose other than that for which it was given”. Subsequent cases indicate that the Harman obligation does not prevent a document or information that was obtained compulsorily for one purpose being used for another purpose that is sufficiently connected with the original purpose.

(a)    In Northbuild Construction Pty Ltd v Discovery Beach Project Pty Ltd (No 4) [2009] QCA 345; [2011] 1 Qd R 145 at [50], McPherson JA stated in obiter dicta that a better understanding of the scope of the Harman obligation is 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” (emphasis added). In that case, that meant that documents produced in an application for a freezing order could be used for the purposes of an expert determination in an arbitration, because the two proceedings (the freezing order application, and the arbitration proceedings) were closely related, and it was reasonably necessary for the conduct of the proceedings between the parties that the produced documents be used for the expert determination: Northbuild (No 4) at [46], [51].

(b)    In Deputy Commissioner of Taxation v Karas [2012] VSC 143 at [43], J Forrest J held that the above reasoning of Chesterman JA was persuasive and should be followed. In that case, the Harman obligation did not prevent the Deputy Commissioner of Taxation from using affidavits that had been produced in an application for a freezing order in enforcing a judgment debt obtained in a separate Supreme Court proceeding, or in any appeal or review of the taxation assessments that gave rise to the judgment debt. The freezing order was “intimately bound up with” the enforcement of the recovery proceedings in the Supreme Court, and was ancillary to the wider dispute between the Deputy Commissioner and Mr Karas in relation to his tax liabilities between June 2003 and June 2010: Karas at [43].

(c)    In Gavan, Ms Gavan brought proceedings against MetLife, contending that it had constructively failed to determine her application for Total Permanent Disablement (TPD) benefits: Gavan at [15]. She sought to be excused from producing documents to MetLife, contending that MetLife intended to use those documents for the collateral purpose of determining her claim for TPD benefits: see Gavan at [60]. Ward CJ in Eq held that MetLife would not breach the Harman obligation by using the documents produced to consider and make a determination of Ms Gavan’s TPD claim, because that use would not be “for a purpose unconnected with the litigation in the course of which the documents have been required to be produced”: Gavan at [91]. There were parallel but connected processes, and the documents sought “w[ould] inform and be relevant to the same primary issue”. The administrative process of determining the claim was not divorced from the claim to be determined by the court in that case; indeed, the potential for dispute down the track (about whether MetLife had improperly used information obtained through that court’s compulsory processes to determine the TPD claim) highlighted the connection between the two processes: Gavan at [92].

56    These principles were considered by the Full Court in Marsh Ltd v Greensill Bank AG [2025] FCAFC 186; (2025) 313 FCR 463. In that case, the Marsh entities relied on documents discovered in proceedings in this Court to bring an anti-suit application in an English court: see Marsh v Greensill at [15], [22]. The Full Court held that this use of the discovered documents did not breach the Harman obligation.

    The Full Court stated that there are, broadly speaking, three categories of cases in which courts have found that the purpose of production has extended beyond use in the proceeding in which the documents have been produced; including (relevantly) where there is a related administrative process for assessing an insurance claim. In each of these cases, it could readily be inferred that the “purpose” for which documents were produced necessarily contemplated use in a second proceeding or forum: Marsh v Greensill at [41].

    After summarising cases including Northbuild (No 4), Karas, Gavan and Hazell-Wright v 32 Domain Pty Ltd [2020] VSCA 129, the Full Court held that the relevant test is “directed at a purpose that is ‘connected with’ or ‘related to the determination of’ a ‘dispute’ between parties, rather than at a purpose that is confined to the use of the disclosed documents or information in the specific proceeding in which it was disclosed”: Marsh v Greensill at [57].

    In Marsh v Greensill, there was no substantive difference between the Marsh entities relying on the discovered documents to bring a stay application in this Court (which it was accepted was permissible), and using those documents to bring an anti-suit injunction in an English Court. Both purposes were directed at “the conduct of” the proceedings in this Court: Marsh v Greensill at [61].

57    Marsh v Greensill indicates that a sufficiently close connection between two proceedings or processes can mean that use in one proceeding or process of documents obtained compulsorily in the other proceeding does not attract the Harman obligation at all: the Full Court held that it was not necessary to determine whether the primary judge had erred in not granting release from the Harman obligation, because there was no breach of that obligation: Marsh v Greensill at [67].

58    Comcare’s arguments (collateral purpose): Comcare submits that the proposed use of the summonsed documents for the future management of Mr Sewell’s entitlements under the SRC Act is not collateral to the purpose of the Tribunal proceedings (which was to determine whether there was a liability under s 14 of the SRC Act).

(a)    Comcare observes that its liability to pay compensation under s 14(1) of the SRC Act is subject to Pt II of that Act, and is “in accordance with [the SRC Act]”, referring to Lees v Comcare [1999] FCA 753; (1999) 29 AAR 350 at [27] (the Court). Comcare submits that the content, duration and means of satisfying the liability to pay compensation is worked out by determinations made under other sections of the SRC Act, citing Australian Postal Corporation v Oudyn [2003] FCA 318; (2003) 73 ALD 659 at [31] (Cooper J). In this way, it is said, decisions under provisions such as ss 14, 16 and 19 concern closely related and interlocking issues, directed to providing compensation to eligible injured employees.

(b)    Comcare also observes that it and the Tribunal perform the same functions under the SRC Act, subject to the same constraints (such as mandatory and irrelevant considerations), citing Frugtniet v Australian Securities and Investments Commission [2019] HCA 16; (2019) 266 CLR 250 at [51]-[53] (Bell, Gageler, Gordon and Edelman JJ). And as noted, on an application for review, Comcare must provide the Tribunal with all relevant documents within its possession (ART Act, s 23). Again, Comcare submits that s 23 would permit the Tribunal to take into account on a review application documents in Comcare’s possession that were subject to the Harman obligation, and it would be anomalous if Comcare were prevented from taking those same documents into account.

(c)    Comcare submits that the Tribunal took too narrow a view in considering that the relevant “dispute” was limited to a determination of liability under s 14 of the SRC Act and any reconsideration of that liability by Comcare under s 62 of the SRC Act (see ART [67]-[68]). Comcare submits that the payment of compensation to a person under the SRC Act is the relevant “dispute” or matter for the purposes of the Harman obligation, and the determination of liability under s 14 of the SRC Act is merely part of the ongoing process to manage the person’s claim for compensation in respect of an injury or injuries. Comcare submits in reply submissions that there is no requirement for an extant “dispute”, and that it could not be the case that the Harman obligation would require Comcare to wait until there was a dispute with Mr Sewell before approaching the Tribunal for leave to use the summonsed documents.

(d)    Comcare submits that it is not to the point whether the summonsed documents might not be (or were unlikely to be) relevant to any future determinations by Comcare in respect of claims made by Mr Sewell (cf ART [76], [91]). Comcare submits that, if it were to have regard to irrelevant information when making a future decision, its decision could be corrected, either in the Tribunal (or if needs be this Court).

59    Analysis (collateral purpose): As noted, Comcare contends that the proposed use of the summonsed documents is so closely connected with the purpose for which they were obtained that the Harman obligation is not engaged at all (as in Gavan and Marsh v Greensill).

60    Requirement for a “dispute”: The first issue is whether Gavan and Marsh v Greensill require there to be a “dispute” between the parties before the extended uses of compulsorily obtained documents referred to in those cases is permitted. Comcare submits that there is no such requirement.

61    Comcare’s argument runs counter to the decision of Kunc J in Price v ClearView Life Nominees Pty Limited [2024] NSWSC 706. In that case, Mr Price made a claim under a life insurance policy issued by the second defendant (ClearView) for a total and permanent disablement (TPD) benefit. Various reports, affidavits and documents were produced in the course of the court proceedings in relation to the TPD Policy. Mr Price had a separate income protection policy with ClearView. ClearView wished to use the compulsorily obtained material in assessing Mr Price’s ongoing entitlement to benefits under the income protection policy: Price at [2]-[5]. Kunc J refused that application.

62    Relevantly, Kunc J held in Price that, as there was currently no dispute, and no proceedings, between Mr Price and Clearview in relation to the income protection policy, using the documents for claims under that policy was “plainly ulterior or collateral” to the purposes for which the material was produced. The identity of the parties and some overlap of issues did not detract from that conclusion: Price at [48]. However, the identity of the parties to the TPD policy and income protection policy, when coupled with some overlap in the issues that ClearView had to consider under each of those policies, constituted “special circumstances” that engaged and informed the discretion to release ClearView from the Harman obligation: Price at [49]. Kunc J declined to permit the proposed use, for three reasons:

    First, there was no dispute or legal proceedings on foot between ClearView and Mr Price in relation to the income protection policy. In the absence of other proceedings, the public interest in the integrity of existing proceedings and the importance of the Harman obligation in promoting complete evidence, disclosure and compliance with subpoenas was paramount, and militated strongly against release of the Harman obligation: Price at [50](1).

    Second, ClearView’s arguments in support of the proposed use were that the proceedings had given it an opportunity for access to the material, and that it would be convenient for it to be able to use the material in considering Mr Price’s entitlements under the income protection policy. However, opportunity and convenience were not sufficient to justify the release of the Harman obligation in the absence of consent of the litigant whose confidential information was contained in the documents: Price at [50](2).

    Third, it would work an injustice on Mr Price for the happenstance of those proceedings to give ClearView an opportunity to have access to materials to which it would not be entitled under the income protection policy: Price at [50](3).

63    This requirement for a “dispute” follows from general principle: the Harman obligation is attracted when information or documents are produced under compulsion, and the purpose of this obligation is to ensure that the invasion of privacy and confidentiality is not harsher or more oppressive than is strictly required for the purpose of ensuring that justice is done: Hearne v Street at [107]. That is, the Harman obligation arises when a document or information is produced under compulsion for the purpose of resolving a dispute, and requires that this document or information can only be used for the purpose of resolving that dispute (unless the document or information is made public or permission is granted for use for another purpose). The resolution of the dispute need not involve court proceedings: part of the dispute might be referred to arbitration (see Northbuild (No 4) at [49]-[50]), or the parallel administrative process and the court proceedings might be “part and parcel of the one piece of litigation” (see Price at [55], discussing Gavan). But the proposed use of compulsorily acquired material must be for resolving the same dispute for which the material was produced.

64    Accordingly, Mr Sewell’s application for compensation under the SRC Act cannot be treated as the relevant “dispute” for the purposes of cases such as Gavan and Marsh v Greensill, so as to prevent the Harman obligation from arising at all. Instead, applying Price, the issue would be whether any future determinations under s 69(a) of the SRC Act are sufficiently closely connected to the initial determination of liability under s 14 that there are “special circumstances” that might be reason to release the parties from the Harman obligation.

65    In considering that issue, it is necessary to distinguish between two matters: (1) the connection under the SRC Act between the issues determined in a s 14 decision, and issues raised in administering a person’s claims to compensation under Pt II; and (2) the possible or likely connection on the facts of this case between the matters dealt with in the summonsed documents and future issues or disputes that might arise in determining Mr Sewell’s claims for compensation.

66    The first matter is a question of law, arising from the construction of the SRC Act. Any misunderstanding by the Tribunal of the connection between a s 14 determination and later determinations under s 69(a) would be an error of law and (if material) a basis for setting aside its decision. By contrast, the second matter is a conclusion about the individual circumstances of this case. Comcare has not sought to challenge the Tribunal’s conclusions that there were not sufficient special circumstances in this case for granting leave to Comcare and Mr Sewell to use the summonsed documents for the purpose of determining any future claims by Mr Sewell.

67    Connection between s 14 decision and determinations under s 69(a): Comcare contends that the Tribunal erred in considering that any materials provided to the Tribunal for the purposes of a s 14 finding would not be relevant to future decisions made by Comcare under s 69(a) of the SRC Act (considering claims under provisions such as ss 16, 19, 24 and 27): cf ART [85], [91].

68    As noted, the initial decision under s 14 of the SRC Act determines whether Comcare is liable to pay compensation to a claimant under the SRC Act. In Lees v Comcare at [34], the Full Court stated that a determination under s 14 cannot amount to more than a determination that Comcare “is liable to pay compensation in accordance with [the SRC] Act” in respect of an injury. The amount of compensation, the person(s) to whom compensation is payable, and the time(s) at which compensation is payable are determined under other provisions of the SRC Act. A determination under s 14 involves findings on the following matters: Lees v Comcare at [35]:

(1)    an appropriate notice of injury has been given to the relevant authority as required by s 53 of the SRC Act;

(2)    a claim for compensation has been made as required by s 54 of the Act;

(3)    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);

(4)    the employee suffered an injury (s 4); and

(5)    the injury has resulted in death, incapacity for work or impairment.

69    In Oudyn at [31], Cooper J stated that determinations under other sections of the SRC Act (such as ss 16, 19 and 24) give substance to the liability to pay compensation under s 14, but that the s 14 determination stands until it is discharged in accordance with the SRC Act (including reconsideration under s 62 of the Act). His Honour stated that a decision-maker may determine that compensation is no longer payable under a particular provision, but that determination only operates in respect of the claim in existence for compensation under that provision. That determination does not bar future claims in respect of that injury if the circumstances under the section can be made out again in the future, or if the circumstances can be brought within another applicable provision of the SRC Act: Oudyn at [33].

70    At the same time, later decisions made under the particular provisions in Pt II may result in findings of fact that are inconsistent with the findings that underpin the finding of liability in s 14. For example, in Hannaford, Telstra had initially accepted that Mr Hannaford had suffered from Ross River fever (based on a diagnosis from his general practitioner), but later received a blood test that showed that he had never had Ross River fever. Telstra did not seek to revoke the s 14 determination, but rather made a decision under ss 16 and 19 that it was no longer liable to pay compensation under those sections. Telstra also refused an application for compensation under ss 24 and 27. The AAT affirmed those decisions: Hannaford at [2]-[5]. The Full Court held that there was no error in the AAT’s decision. Conti J (with Heerey J agreeing on this point) held that the “progressive and evolving decision-making” permitted by the SRC Act meant that decisions made about a claimant’s compensation, under ss 16 and 19, or ss 21 and 27, may result in findings of fact that are inconsistent with the initial determination of liability under s 14: Hannaford at [57]. His Honour held (Hannaford at [59]) that the previous AAT was empowered:

(i)    to make findings of fact that effectively undercut the necessary findings of fact made in the initial or original decision of Telstra under s 14 of the SRC Act to accept liability in respect of Mr Hannaford’s claim for compensation; and

(ii)    to do so in circumstances where the AAT was undertaking its review of whether any compensation should be payable or further payable, for instance under ss 16 and 19 of the SRC Act, and/or under ss 21 and 27 of the SRC Act; and

(iii)    to do so in the circumstances further where Telstra’s s 14 decision remained in force to the extent that it had not been actually reversed, and had not been the subject of any adverse review per se by the AAT.

71    This reasoning has been confirmed in DSLB at [122], and applied in considering cognate legislation in Commonwealth v Snell [2019] FCAFC 57; (2019) 269 FCR 18 at [63] (the Court) (holding that the AAT was entitled to make decisions that were factually inconsistent with its earlier decisions under the Seafarers Rehabilitation and Compensation Act 1992 (Cth)).

72    Requirement of an “injury” requires causal connection with employment: Comcare submits that there is a clear overlap between the subject-matter of a s 14 finding (particularly a finding that there is an “injury”) and later decisions under Pt II of the SRC Act.

    It is a requirement of each of the specific compensation provisions that the employee has suffered an “injury” (see ss 16(1), 19(1), 24(1) and 27(1)).

    Injury is defined in s 5A and (relevantly to this case) includes a disease suffered by an employee (s 5A(1)(a)). “Disease” is defined in s 5B(1) as an ailment suffered by an employee, or an aggravation of such an ailment “that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee”.

    By s 5B(2), in determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:

(a)     the duration of the employment;

(b)     the nature of, and particular tasks involved in, the employment;

(c)     any predisposition of the employee to the ailment or aggravation;

(d)     any activities of the employee not related to the employment;

(e)     any other matters affecting the employee’s health.

73    Comcare submits that a necessary element in any decision to pay compensation under a provision such as ss 16, 19, 24 or 27 is that the decision-maker is satisfied that the relevant disease was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee. If that causal connection no longer exists, then compensation is no longer payable. For example, in Woodhouse v Comcare [2021] FCAFC 95; (2021) 285 FCR 14, Comcare determined in June 2004 that Ms Woodhouse had certain compensable conditions, and she received compensation under ss 16 and 19 of the SRC Act. However, in August 2017, Comcare decided that Ms Woodhouse’s current condition was due to a pre-existing psychological condition, and that her previous employment was no longer a material contributing factor to her incapacity. The AAT affirmed that decision: Woodhouse at [27], [31]-[32]. Derrington J (with Collier and Rangiah JJ agreeing) dismissed an appeal on questions of law from the AAT. His Honour held, among other things, that in order for an ailment to remain one in respect of which Comcare is liable, it must retain the characteristic that it was contributed to in the necessary degree by the relevant employment. If the ailment ceases to have that character, it will cease to be an “injury” for which compensation is payable under s 14 of the SRC Act, which in turn means that no compensation is payable in respect of that ailment under s 19: Woodhouse at [85], [104].

74    Comcare submits further that evidence about a claimant’s ailment at the s 14 stage can be relevant in assessing whether the necessary causal connection with the employment still exists. The relevant factors in assessing this causal connection include any predisposition of the employee to the ailment or aggravation (s 5B(2)(c)), and any other matters affecting the employee’s health (s 5B(2)(e)). Comcare referred to a number of cases where medical evidence about a person’s condition at the s 14 stage (and earlier) was considered in merits review proceedings in deciding whether the necessary causal connection with employment existed: see, for example, Power v Comcare [1998] FCA 1783; (1998) 89 FCR 514 at 519 (Sackville J) (where the AAT examined Mr Power’s medical history, particularly between 1977 and 1981); Prain v Comcare [2017] FCAFC 143; (2017) 256 FCR 65 at [20] (the Court) (where the AAT referred to Ms Prain’s evidence about her mental condition in 2011). And in Hannaford, the AAT considered the basis of the original determination of liability (a diagnosis by a general practitioner, without a blood test) in determining that later medical evidence established that Mr Hannaford had never suffered from Ross River fever: see Hannaford at [28].

75    However, the cases referred to by Comcare only establish that in some cases there can be a connection between the material provided to the Tribunal at the s 14 stage and later decisions made under s 69(a) in dealing with claims under Pt II. It is true that the necessary causal connection between an injury (here, a disease) and the employment must always exist before a payment of compensation can be made, but Comcare does not suggest that there is an issue about this causal connection in every case, or that medical evidence about the position at the s 14 stage is always relevant to determine whether the necessary causal connection still exists when that is an issue. And in this case, Comcare does not submit that the summonsed documents in this case will be relevant to determining future claims under s 69(a) in respect of Mr Sewell’s compensation, but only that these documents may be relevant.

76    Mere potential for relevance is not enough: The potential relevance of documents obtained in the Tribunal at the s 14 stage (including summonsed documents) to future decisions to be made under s 69(a) of the SRC Act is not enough to say that the original s 14 determination and the later decisions made under s 69(a) are part of the same “dispute”, as discussed in Gavan and Marsh v Greensill. As already indicated, I consider that the principle in those cases is confined to resolving a “dispute”, properly so called. But even if that is not correct, the approach in those cases (by which the Harman obligation is not engaged at all) requires a closer connection between two processes than a mere potential for relevance.

77    Instead, this potential for documents obtained at a s 14 stage to be relevant to determining a later claim under s 69(a) may provide a reason for seeking leave from the Tribunal to be released from the Harman obligation, on the grounds of special circumstances, once the relevance of particular documents is apparent. The identity of the parties (Comcare and the claimant) and the overlap of issues provide a strong basis for contending that there are special circumstances engaging the discretion to grant leave: see Price at [49]. If this claim is made at the point when the relevance of these s 14 documents to the later claim is apparent, there will be a much stronger basis for leave to be granted: cf Price at [50](1). When release from the Harman obligation is sought, it is necessary for the proposed additional use of the information or documents to be clearly identified: Price at [22]; Villawood Management Pty Ltd v Marlton Group Pty Ltd [2026] FCA 1429 at [16] (O’Callaghan J). In this case, the Tribunal was not satisfied that Comcare had established that “special circumstances” existed, when the future relevance of the summonsed documents and the particular proposed use was unknown.

78    Comcare submits that it would be unworkable to have to obtain leave for every decision, given that the issue of causation could arise on a number of occasions and could affect multiple payments of compensation. In principle, however, it should be possible to address this issue by identifying the purpose for which leave is sought to be excused from the Harman obligation at the correct level of generality; for example, it may become apparent from the circumstances of a case that original medical reports obtained at the s 14 stage are relevant in determining whether an ailment or injury was contributed to, in a significant degree, by the claimant’s employment. The basis of that relevance is likely to depend on the individual circumstances: see, for example, the different circumstances of Power, Prain and Hannaford, summarised in [74] above. That purpose would seem to be sufficiently specific to explain why leave is sought, but it is not confined to a particular payment of compensation (nor to payment of compensation under a particular provision of the SRC Act). These general comments are not intended to foreclose the Tribunal considering in an individual case whether special circumstances exist that warrant granting leave to release Comcare and the claimant from the Harman obligation in respect of certain documents.

conclusion

79    For these reasons, Comcare has not established any jurisdictional error in the decision of the Tribunal. There is no inconsistency between the SRC Act (particularly ss 69(a) and 72(a)) and the application of the Harman obligation to summonsed documents in Comcare’s possession, obtained in the course of proceedings to determine liability under s 14 of the SRC Act. And the determination of liability under s 14 does not form a single “dispute” with the future determination of claims under s 69(a) of the SRC Act, so as to exclude the Harman obligation arising (as occurred in Gavan and Marsh v Greensill). Instead, the relevant issue is whether there are “special circumstances” that might justify releasing Comcare from the Harman obligation in respect of certain documents for an identified purpose(s), at the point where the purpose and relevance can be identified. I mention that there are some statements in the Tribunal’s reasons in this case that I might not accept, at least in unqualified form (particularly any suggestion that evidence produced at the s 14 stage would not be relevant to later determinations under s 69(a): see ART [85], [91]), but those statements do not affect the conclusions just set out. It follows that Comcare’s application for review must be dismissed.

Associate:

Dated:    8 October 2026