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- Unreported Judgment
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Mortimer v G James Extrusion Co Pty Ltd & Others  QIRC 139
G James Extrusion Co Pty Ltd
Objection to Notice of non-party disclosure
18 September 2019
18 September 2019
The non-party is to provide to the respondents' solicitor by 4.00 pm on Friday 20 September 2019 the complete clinical file for Nicole Mortimer relating to any treatment received by her for a non-physical (psychological) complaint or injury, or for a physical complaint or injury with a contributing cause that is non‑physical in origin, for the period 1 January 2014 to the present, including the following:
INDUSTRIAL LAW – OBJECTION TO NOTICE OF NON-PARTY DISCLOSURE – where objection to the notice to produce clinical records – where alleged psychiatric injury as a result of sexual harassment and victimisation – where obligations of nominated party.
Industrial Relations Act 2016, s 531
Industrial Relations (Tribunals) Rules 2011, r 64B
Goldsmith v Sandilands
Mr P. Flintoft, Think Legal for the Complainant.
Ms S. Moody, Counsel instructed by Mr D. Miller, Ai Group Workplace Lawyers for the Respondents.
Ms L. Ropolo, Psychologist for the non-party.
Reasons for Decision
- On 2 September 2019 G James Extrusion Co Pty Ltd (the first respondent) and Mr Paul Fletcher (the second respondent) requested a Notice of non-party disclosure to be issued by the Industrial Registrar. The Notice outlined the matter in issue in the proceedings about which the documents sought are directly relevant as follows:
The complainant claims she suffered a psychiatric injury in or around 2017 (and alleged to be ongoing as at today's date) as a result of sexual harassment and victimisation by the First and/or Second Respondents between 2014 and November 2017.
On a date or dates unknown to the respondents, but likely from in or around 2014 onwards, the complainant has attended Accoras Psychology Services (believed to be formerly YourTime Psychology), and in particular psychologist Liria Ropolo.
Records held by Accoras Psychology Services about the complainant during the period 2014 to the present date are relevant to material facts in issue in the proceedings, namely, whether the complainant in fact suffered a psychiatric injury as the result of events alleged to have occurred in her workplace between 2014 and November 2017; treatment she has received since that time; and also the question of special damages.
Further, that the following documents must be produced:
The complete clinical file for Nicole Mortimer … relating to any treatment received by her for a non-physical (psychological) complaint or injury, or for a physical complaint or injury with a contributing cause that is non-physical in origin, for the period 1 January 2014 to the present, including the following:
- (a)all clinical notes relating to Ms Mortimer taken by Ms Liria Ropolo or any other psychologist;
- (b)all letters of referral relating to Ms Mortimer; and
- (c)all reports relating to Ms Mortimer.
- The Notice was served on the nominated party, The Proper Officer, Brisbane South Division Limited trading as Accoras Psychology Services and received by them via courier on 5 September 2019.
- The Form 29 - Notice of non-party disclosure version 5 contained the following information regarding the obligations and rights in respect of a nominated party and an affected person:
- Obligations of nominated party
1. The nominated party is required to produce to the requesting party the documents mentioned or described in the schedule of documents above.
2. The nominated party is required to produce the documents between 7 and 14 days after being served with this notice.
- The nominated party is required to produce the documents -
- (a)at the nominated party’s or a lawyer's/agent's place of business during normal business hours; or
- (b)as may be agreed between the nominated party and the requesting party.
4. The requesting party may take copies of the documents produced pursuant to this notice.
- A failure by the nominated party to comply with the Commission-imposed obligations may result in the requesting party obtaining compliance orders and such orders as the Commission may consider appropriate.
The nominated party is entitled to the reasonable costs and expenses of producing documents. The nominated party must give notice of its costs and expenses within one month of compliance with this notice and the requesting party can pay those costs or cause the costs and expenses claimed to be assessed.
B. Nominated party's rights
- The nominated party is only obliged to produce documents if -
- (a)the documents relate to a matter in question between the parties to the proceeding;
- (b)the document is in the possession or control of the nominated party;
- (c)the document is capable of being required to be produced at trial;
- (d)there is no other reasonably simple, inexpensive way for the requesting party to prove what the documents show.
2. The nominated party is only obliged to produce documents if the requesting party has served a copy of this notice on-
- (a)a person, other than a party to this proceeding named in the title, about whom information is sought; and
- (b)the owner of the document if it is other than the nominated party. (If the owner of the document cannot be found after reasonable inquiry compliance with this sub-rule is excused.)
- The nominated party may object to production provided that such objection is given within 7 days of service of this notice or such other time as the Commission may allow.
- The nominated party's objection must -
- (a)be written;
- (b)served on the requesting party; and
- (c)clearly state the reasons for objection.
Grounds for objection are contained in Rule 64E of the Industrial Relations (Tribunals) Rules 2011.
- Service of an objection is a stay of this notice and the objections may be challenged under Rule 64G of the Industrial Relations (Tribunals) Rules 2011 by the requesting party.
C. Affected party's rights
- The affected party (if any) may object to production provided that such objection is given within 7 days of service of this notice or such other time as the Commission may allow.
2. The affected party's objection must-
- (a)be written;
- (b)be served on the requesting party or their lawyer/agent; and
- (c)clearly state the reasons for objection.
Grounds for objection are contained in Rule 64E Industrial Relations (Tribunals) Rules 2011.
- Service of an objection is a stay of this notice and the objections may be challenged under Rule 64G Industrial Relations (Tribunals) Rules 2011 by the requesting party.
- This notice must be served on all affected parties before service on the nominated party.
- On 10 September 2019 Ms L Ropolo, Psychologist, Accoras Psychology Services, Yeerongpilly wrote to the Industrial Registry objecting in the strongest possible terms to the production of the clinical records of Ms N. Mortimer, the complainant.
- Ms Ropolo outlined specifically the reasons for the objection:
- the confidential nature of the documents and their contents; and
- the effect production would have on the complainant.
- Further, Ms Ropolo stated that:
Nicole attended psychological therapy on the understanding that what was discussed would be confidential. Psychological therapy cannot be effective without a client opening up and sharing their most private thoughts and feelings. It is very important that what occurs between a psychologist and their client is kept confidential from other people in the client's life, or the safety of the therapeutic space ceases to exist. It is particularly important the therapeutic space is kept safe from people who are potentially hostile to the client.
It would be highly prejudicial to my client's wellbeing to have her sensitive and confidential therapy records released to the organisation and the person who are accused of harassing her. That they have directly requested the production of her sensitive and highly confidential therapy records could be viewed as both an intimidation tactic and an abuse of power.
I am asking the Tribunal to please, for the wellbeing of my client, set aside this Notice.
- A hearing was convened for the purpose of affording the parties to the proceedings and the non-party, the opportunity to make submissions in relation to the non-party's objection to produce the documentation sought in the Notice of non-party disclosure.
- The non-party withdrew their blanket opposition to the production of the documents sought subject to a set of limitations that included:
- documents would be disclosed to the legal representative of the two respondents but were to be withheld from both respondents;
- the legal representative would be able to provide the documents to medical specialists for the purposes of seeking their opinion; and
- the legal representative would be required to formally agree to the limitations proffered by the non-party.
- The complainant supported the position advanced by the non-party and was of the view that in the circumstances it was a reasonable approach to the notice to produce.
- The respondents opposed the documentation being provided subject to the limitations arguing that the complainant was seeking an amount of $309,000.00 from the respondents for reasons that included a psychiatric injury and therefore the material sought was directly relevant to the case having to be met by the respondents.
- Similar notices were served on a psychiatrist and the complainant's general practitioner and had been complied with pursuant to the notice of non-party disclosure without the suggestion of any limitation.
- The respondents pointed out the difficulties in terms of their use of the documents sought if the limitations proposed by the non-party were to be accepted by the Commission.
- There was no question with regard to the issuing of the Notice of non-party disclosure by the respondents that for all intents and purposes met the requirements of Rule 64B of the Industrial Relations (Tribunals) Rules 2011.
Notice requiring non-party production
- (1)A party to a proceeding may, by notice of non-party production, require a person who is not party to the proceeding (the non-party) to produce to the party, within 14 days after service of the notice on the non-party, a document -
- (a)directly relevant to a matter in issue in the proceeding; and
- (b)in the possession or under the control of the non-party; and
- (c)that is a document the non-party could be required to produce at the hearing for the proceeding.
- (2)The party may not require production of a document if there is available to the party another reasonably simple and inexpensive way of proving the matter sought to be proved by the document.
- (3)The non-party must comply with the notice but not before the end of 7 days after service of the notice on the non-party.
- (4)The requirement, under this rule, for a non-party to produce a document is not an ongoing duty.
- The documentation being sought were medical records of the complainant for the period 1 January 2014 to the present held by the non-party and were required by the respondent to defend an action seeking the following outcome:
Interest on non-financial loss
Past economic loss
Past Medical & rehabilitation expenses
Interest on past economic loss
Past loss of superannuation
Future economic loss
Future medical expenses
Future loss of superannuation
- A reasonable examination of the claim identifies that there are components of the claim that directly relate to medical issues relevant to the complainant to the extent that grounds have been established to warrant the production of the documentation being sought for reasons of relevance. In the matter of Goldsmith v Sandilands, McHugh J found:
. . . evidence is generally admissible only if it tends to prove a fact in issue or a fact relevant to a fact in issue. A fact is relevant to another fact when it is so related to that fact that, according to the ordinary course of events, either by itself or in connection with other facts, it proves or makes probable the past, present, or future existence or non-existence of the other fact. Whether a fact is a fact in issue depends upon the pleadings and particulars of each party's case. The facts in issue reflect the material facts that constitute the claimant's cause of action - which may be defined as the set of facts to which the law attaches the legal consequences that the claimant asserts.
- The objection of the non-party to have the Notice of non-party disclosure set aside is refused.
- The non-party is to provide to the respondents' solicitor by 4.00 pm on Friday 20 September 2019 the following documentation:
The complete clinical file for Nicole Mortimer relating to any treatment received by her for a non-physical (psychological) complaint or injury, or for a physical complaint or injury with a contributing cause that is non-physical in origin, for the period 1 January 2014 to the present, including the following:
- (d)all clinical notes relating to Ms Mortimer taken by Ms Liria Ropolo or any other psychologist;
- (e)all letters of referral relating to Ms Mortimer; and
- (f)all reports relating to Ms Mortimer.
 Goldsmith v Sandilands  HCA 31, .
- Published Case Name:
Nicole Mortimer v G James Extrusion Co Pty Ltd and Paul Fletcher
- Shortened Case Name:
Mortimer v G James Extrusion Co Pty Ltd
 QIRC 139
18 Sep 2019