Judgment date: 6 August 2009
El-Helou v Smith  NSW SC 741
Supreme Court of NSW1
- Section 208 of the Social Security (Administration) Act (Cth) 1999 permits the disclosure of Centrelink records where the recipient of Centrelink benefits provides an authority.
- In court proceedings, s 56 of the Civil Procedure Act 2005 places a duty on all parties to assist the Court to further the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in the proceedings.
- Section 56 of the Civil Procedure Act 2005 empowers the Court to make an order that the plaintiff provide an authority for the release of his or her Centrelink records where the contents are relevant to the issues in dispute and promote the fair resolution of the proceedings.
- However, Centrelink records remain protected in CARS proceedings given paragraph 16.13.1 of the MAA Claims Assessment Guidelines which specifically prohibits a CARS Assessor from directing a claimant to provide a Centrelink authority.
In this matter, the defendant sought an order compelling the plaintiff to provide an authority releasing her Centrelink records to the defendant.
The plaintiff was injured in a motor accident and sought personal injury damages. There was evidence, however, that the plaintiff had made a number of applications to Centrelink from time to time, including for a carer's allowance for both her husband and her daughter.
This defendant had requested provision of a Centrelink authority on a number of occasions. However, the plaintiff refused.
The defendant argued that the contents of the plaintiff's Centrelink file were relevant to the issues in dispute, particularly given that the plaintiff made a claim for domestic assistance even though she received a carer's allowance from Centrelink for the care of her husband.
The defendant also argued that the pre-accident and post-accident histories contained in the Centrelink files were relevant to the assessment of all heads of damage.
The defendant conceded that Centrelink was not amenable to a subpoena for production. However, the defendant argued that s 56 of the Civil Procedure Act 2005 was more than "sufficient authority and support for the making of the orders sought, in the interests of justice".
Specifically, s 56(3) of the Civil Procedure Act 2005 places a duty on all parties to assist the Court to further the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in the proceedings.
Supreme Court Decision
The defendant's application came before Harrison J for determination.
Justice Harrison noted, at paragraph 15, that s 208 of the Social Security (Administration) Act 1999 specifically authorises Centrelink to disclose information "to a person who is expressly or impliedly authorised by the person to whom the information relates to obtain it".
At paragraph 21, his Honour agreed with the defendant that the documents contained in the plaintiff's Centrelink file were clearly relevant to the issues in dispute in the proceedings. Justice Harrison held that disclosure of the plaintiff's Centrelink file would promote the fair resolution of the proceedings.
At paragraph 23, his Honour reasoned as follows:
"23 Having commenced these proceedings, the plaintiff fell under and remains bound by an obligation as far as reasonably possible to assist the Court to arrive at a fair conclusion. In the absence of even the hint of some proper reason, (for example but without attempting to be exhaustive) whether founded upon a statutory prohibition or an allegation of prejudice or the demonstration of some legitimate forensic disadvantage or claim of confidentiality or the assertion of privilege, it is difficult to discern any reason why it is not in the interests of the just, quick and cheap disposition of the proceedings to make an order in the terms sought by the defendant. It is also appropriate to bear in mind that despite the plaintiff's attitude to the provision of the requested authority, it is not out of the question that the material that is sought by the defendant may turn out to be wholly supportive of the plaintiff's claims in these proceedings. Such an outcome would have potential beneficial consequences for the just, quick and cheap resolution of this case."
Accordingly, his Honour made an order that the plaintiff provide the defendant with an executed authority to enable her to obtain any information from Centrelink held or maintained by Centrelink in relation to the plaintiff within 14 days. Further, the plaintiff was to pay the defendant's costs of the motion.
Scope of Decision
The decision in El-Helou v Smith provides some assistance in obtaining Centrelink records.
However, there are two important qualifications which must be highlighted.
Firstly, the principles only apply to Court proceedings given that the power to make the direction originated from s 56 of the Civil Procedure Act 1956.
A CARS Assessment is regulated, not by the Civil Procedure Act 1956, but by the MAA Claims Assessment Guidelines.
Importantly, paragraph 16.13.1 of the Guidelines specifically prohibits a CARS Assessor from directing a claimant to provide an authority addressed to any Federal Government agency which is not required to produce documents under subpoena, such as the ATO and Centrelink.
Accordingly, the decision in El-Helou provides no direct assistance in CARS proceedings. An indirect argument is discussed below.
Secondly, the reasons given by Harrison J indicate that part of the reason why his Honour was persuaded to direct that a Centrelink authority be provided to the defendant was because the plaintiff advanced no compelling reasons why such an order should not be made.
The plaintiff gave no particulars of confidentiality, privilege, prejudice or forensic disadvantage either in correspondence with the defendant or in argument before the Court. Query, therefore, whether Harrison J would have made the same order if some compelling grounds for non-disclosure where advanced.
Benefit of Decision
Notwithstanding these qualifications, the decision in El-Helou discloses an important philosophical position which assists insurers to obtain Centrelink records both in Court and CARS proceedings.
Section 56 of the Civil Procedure Act 1956 places a duty on all parties to assist the court to further the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in proceedings.
Paragraph 1.14.1 of the MAA Claims Assessment Guidelines provides that one of the Objects of the CARS system is to:
"provide a timely, fair and cost-effective system for the assessment of claims...that is accessible, transparent, independent and professional."
Paragraph 1.14.2 adds that another Object of CARS is to:
"Assess claims and disputes fairly and according to the substantial merits or the application..."
Whilst there is an emphasis on the speedy resolution of claims, it is clear that one of the principle Objects of the CARS system is to promote a "fair" result. The assessment should accord with the "substantial merits" of the claim.
The Objects set out in paragraph 1.14 of the Guidelines are closely aligned to the overriding purpose set out in s 56 of the Civil Procedure Act 1956.
As Harrison J stated in paragraph 23 of his Judgment:
"Having commenced these proceedings, the plaintiff fell under and remains bound by an obligation as far as reasonably possible to assist the Court to arrive at a fair conclusion."
In the circumstances of El-Helou, that obligation was found to extend to providing the defendant with an authority allowing the disclosure of her Centrelink file.
Whilst paragraph 16.13.1 of the MAA Claims Assessment Guidelines precludes an Assessor from directing the Claimant to provide a Centrelink authority to the Insurer, it is arguable that the Claimant's obligation to assist CARS to "arrive at a fair conclusion" extends to being required to obtain his or her Centrelink file before the claim is assessed on a final basis.
Whilst an Assessor can not direct the Claimant to provide a Centrelink authority, an Assessor can decline to assess the claim until the Claimant goes away and obtains his or her Centrelink file so that the information in the file may be placed before the Assessor.
1 Harrison J
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.