DISTRICT COURT OF QUEENSLAND

The background to the application

1. [1]
   The respondent alleges that he sustained injury to his left knee in the course of his employment with N B Hayward Pty Ltd as a boilermaker on 12 June 2013. On 19 February 2014 the respondent completed a notice of claim for damages which was given to the applicant pursuant to s 275 of the Workers' Compensation and Rehabilitation Act 2003 (Qld) (“WCRA”). 

2. [2]
   In the notice of claim the respondent disclosed that he had been incarcerated for, or during, the period from 1993 to 2010. The disclosure was made in the section of the notice of claim, which is an approved form under the Act^[1], which required the claimant to provide details of employment and income for the period of three years before the event resulting in the injury, and the period since.

3. [3]
   As required by s 275(7) the notice of claim was accompanied by the respondent’s written authority allowing the insurer to obtain information, including copies of documents relevant to the claim in the possession of various entities.  Those entities included, in accordance with s 275(7)(f), “a department, agency or instrumentality of the Commonwealth or the State”. 

4. [4]
   On 18 March 2014 BT Lawyers wrote to the respondent’s solicitors. The letter, amongst other things, sought “further disclosure” relating to the respondent’s disclosed incarceration. It sought to have the respondent provide certain information pursuant to s 279 WCRA.  It also enclosed an authority for the respondent to execute and return.  That authority was to facilitate the obtaining of information and documents from the Queensland Police Service, the Department of Corrections and the Department of Community Safety.  The authority was not executed by the respondent.

5. [5]
   BT Lawyers again sought its execution and return by letter dated 12 May 2014. On 16 May 2014 the respondent’s solicitors indicated that the respondent was prepared to provide an authority limited to certain of the categories of information and documents. On 19 May 2014 BT Lawyers rejected the offer of a more limited authority, stating it was unacceptable to their client, and requiring the execution and return of the originally provided authority. On 27 May 2014 BT Lawyers wrote foreshadowing this application if the executed authority was not forthcoming.

6. [6]
   On 29 May 2014, the respondent offered to provide a further authority which extended to more categories of information and documents which had been sought, provided that in respect of those further categories the information was limited to a period of three years prior to the date of injury. That offer was rejected by BT Lawyers on 30 May 2014. The offer was reiterated by the respondent’s solicitors on 3 June 2014 when they also informed that they had sought some information and documents from the Queensland Police Service and Department of Corrections.

The true identity of “the applicant”

7. [7]
   At the outset, it is necessary to establish the true identity of the person or entity by whom this application is brought. That necessity stems from the application having been brought pursuant to s 287 WCRA.  Section 287 permits the court to order a party to comply with the provision of Chapter 5, including by making consequential or ancillary orders, if the party has failed to comply with the provision.  This requires identification of “the party” and the requirement of a provision with which it is alleged that the party has failed to comply. 

8. [8]
   In this matter, the requirement identified by the applicant is that of cooperation by the giving of information imposed by s 279(1)(b).  The requirement of cooperation under s 279(1) is imposed, in terms, upon “the parties”.  In respect of the giving of information, it requires the provision of such information reasonably requested by “each other party” about certain prescribed matters.  Section 279 itself does not identify who the parties are.  Potentially, that nomenclature could include the claimant, the employer, the insurer and any contributor.^[2]  In my view, properly construed, however, it does not include an employer.

9. [9]
   Section 279 is headed “Parties to cooperate”.^[3]  As originally enacted^[4], the heading to s 279 was “Claimant and insurer to cooperate”.  The obligation to cooperate was imposed not on “the parties”, but upon “a claimant and an insurer”.  The reference to “each other” in the requirement to give documents imposed by s 279(1)(a) was thus a reference to each of the claimant and the insurer.  Similarly, the reference to “each other” in the requirement to give information imposed by s 279(1)(b) was a reference to the claimant and the insurer.

10. [10]
    The language of s 279(1), and the heading, were changed from “claimant and insurer” to “parties” with the enactment of the Workers' Compensation and Others Acts Amendment Act 2004 (Qld).^[5]  The changes reflected the amendments made to the WCRA which permitted the addition of contributors by the insurer.  The amendments to s 279 were made to extend the obligations imposed by that provision to a contributor as well as a claimant and an insurer.^[6]  The amendments did not extend the obligation to an employer.  Likewise, they did not extend to an employer the right to request information under s 279(1)(b).

11. [11]
    Section 279(1)(b) does not now, and never has, permitted an employer to make such a request for information from a claimant.

12. [12]
    The employer’s obligation to cooperate is, and has always been, imposed by s 280 WCRA.  It is an obligation to cooperate fully with and give WorkCover all information and access to documents in relation to the claim that WorkCover reasonably requires.

13. [13]
    The significance of all of this in the present proceeding is that the applicant is said to be the employer, N B Hayward Pty Ltd, not the insurer, WorkCover Queensland.

14. [14]
    In an affidavit of Kerrie Lee Jackson filed on 5 June 2014 in support of the originating application^[7], Ms Jackson identifies herself as a solicitor employed by “BT Lawyers, solicitors for the applicant”.^[8]  The applicant is identified as the employer of the respondent at the relevant time.^[9] 

15. [15]
    If these matters deposed to by Ms Jackson are accurate, then the applicant has no standing and the application is entirely misconceived. This is an originating application seeking compliance with pre-court procedures. It is not a proceeding for damages which by s 300(1) and (5) is required to be brought against the employer, but which is entitled to be conducted by WorkCover.

16. [16]
    In his submissions, Mr O'Driscoll of counsel, who appeared for the applicant, said that the request which had been made by the applicant under s 279(1)(b) had been necessary because certain entities, the Queensland Police Service and the Department of Corrections, would not provide information in response to an authority provided by a claimant pursuant to s 275(7).  Of course, as s 275(7) and the approved form make clear, it is the insurer who is authorised to obtain the information, not the employer.  Again, if the applicant here is truly the employer, then there is nothing in s 275 which requires the claimant to authorise the applicant to obtain information.  There is nothing to suggest that the employer was a self‑insurer. 

17. [17]
    The authority which BT Lawyers had originally sought to have the respondent execute was not exhibited to Ms Jackson’s affidavit.  When I inquired about it in the course of hearing the application it was tendered by consent.  It is instructive.  If executed, it would authorise and direct the release of certain information and documents “to WorkCover Queensland care of its solicitors, Messrs BT Lawyers”.^[10]

18. [18]
    In their letter of 18 March 2014 BT Lawyers stated, amongst other things, that their “client” required the respondent to be examined by a knee surgeon but not, at that stage, by a psychiatrist. The right to request a claimant to undergo a medical examination is conferred by s 282 WCRA upon an insurer or a contributor.  It does not extend to an employer.

19. [19]
    In that letter of 18 March 2014 BT Lawyers also say that “WorkCover is committed to rehabilitating injured workers”.

20. [20]
    Throughout the hearing Mr O'Driscoll referred to his client as “the defendant”.  There is, at this stage, no defendant. However, he referred to the purpose of the request for the information, the duty of the parties to cooperate, and the making of the application, as being to facilitate the making of a meaningful offer to resolve the claim and the participation of his client, in a meaningful way, in a compulsory conference.  Again, the parties upon whom the obligation to resolve the claim is imposed by s 281 WCRA are the insurer, the claimant and any contributor.  It does not extend to the employer.^[11]

21. [21]
    Given all of these matters it seems tolerably clear that notwithstanding the application having been said to be brought by the employer as applicant, and BT Lawyers having unfortunately and unhelpfully identified themselves as the solicitors for the applicant who was described as the employer, the true position is that the application has been brought by the insurer, WorkCover Queensland. Because s 275(7), s 279 and s 281 apply to WorkCover Queensland, it has standing to make the application.

22. [22]
    In the circumstances, and given that the respondent took no issue with the standing of the applicant to bring the application,^[12] the appropriate course appears to me to be to direct, pursuant to r 375(3) UCPR, that the misnomer in the originating application filed on 5 June 2014 be corrected by changing the name of the applicant from “N B Hayward Pty Ltd” to “WorkCover Queensland”.

23. [23]
    If I am wrong, and the applicant truly is the employer then, for the reasons I have discussed, it lacks standing and the application should be dismissed.

Is the relief sought permissible?

24. [24]
    Mr Myers of counsel who appeared for the respondent took issue with the form of relief sought in the application.  He described it as a form of mandatory injunction because it would require the respondent to execute and return the authority sought by the applicant under cover of the letter of 18 March 2014. 

25. [25]
    In my view, granting relief in the form sought by the applicant is, in an appropriate case, authorised by the WCRA.

26. [26]
    In Suncorp Metway Insurance Ltd v Brown^[13] the Queensland Court of Appeal considered an application similar to this brought under the Motor Accident Insurance Act 1994 (Qld) (“MAIA”). 

27. [27]
    Section 37 of that Act, like s 275 WCRA, required a notice of claim to be given to the insurer before commencing an action in a court for damages.  Section 37(1)(b) MAIA and r 19 of the Motor Accident Insurance Regulation 1994 (Qld), like s 275(7) WCRA, required the notice of claim to authorise the insurer to have access to, and to make copies of, records about the claimant relevant to the claim of a department, agency or instrumentality of the Commonwealth, the State or another State administering certain laws.

28. [28]
    Section 45 MAIA, like s 279 WCRA, imposed a duty on a claimant to cooperate with an insurer including, like s 279(1)(b) WCRA, by giving information reasonably requested by the insurer about certain matters.

29. [29]
    Section 50 MAIA, like s 287 WCRA, permitted the court to order compliance by persons with the obligations imposed upon them under the Act, including by the making of consequential and ancillary orders. 

30. [30]
    Like the Queensland Police Service and the Department of Corrections in this case, Centrelink had in that case refused to recognise the authority provided under s 37 MAIA.  The insurer had requested, pursuant to s 45 MAIA, that the claimant execute a further authority directed to Centrelink enabling the insurer to obtain the relevant information.  The respondent refused to cooperate by signing the authority.  He contended that by signing the notice of claim including the authority within it as required by s 37 of the Act, he had done all that was required of him.

31. [31]
    In allowing the insurer’s application for an order directing the claimant to execute the authority, Williams JA, with whom the other members of the court agreed, said at [14]:

“When regard is had to the objects of the legislation set out in s 3, and in particular the object ‘to encourage the speedy resolution of personal injury claims resulting from motor vehicle accidents’, the intent of the legislature, in my view, was to impose a broad general duty on a claimant to cooperate with the insurer. To that end the claimant is obliged by s 37 and s 45, amongst others, to provide very detailed information to the insurer at an early stage. There is, albeit impliedly, a clear obligation on the claimant to do all things necessary to provide the insurer with the information referred to in those two sections.”

32. [32]
    The object in s 3 MAIA referred to by his Honour is, in my view, analogous to the object of Chapter 5, Part 5 of the WCRA set out in s 273: to facilitate the just and expeditious resolution of the real issues in a claim for damages at a minimum of expense. 

33. [33]
    In my opinion, the legislative schemes in the MAIA and Chapter 5, Part 5 of the WCRA are sufficiently analogous to support the conclusion that relief in the nature of that found to be available under s 50(1) of the MAIA to enforce the obligation of cooperation would also be available under s 287 of the WCRA to enforce the like obligation imposed by s 269(1)(b) of that Act.

34. [34]
    An order in the form sought by the applicant is permissible. It facilitates the obligation upon the claimant to provide the insurer with the information.

Should the relief be granted in this case?

35. [35]
    The authority sought by the applicant from the respondent was directed to the Queensland Police Service, the Department of Corrections and the Department of Community Safety. It authorised and directed release of “all information and documents” held by those entities in relation to the respondent. The authority identified nine categories of information and documents which were to be included amongst that provided. However, the use of the expression “including” in identifying those particular categories means that the information and documents to be provided were not to be restricted to those categories. The use of the expression ‘all’ confirms that.

36. [36]
    In my view, an unrestricted authority is not supported by s 279 WCRA.  The obligation to co-operate by the giving of information under s 279(1)(b) is restricted to information reasonably requested about five described categories of information.  An order which extended to information beyond those categories would not be authorised under s 287 because it would require more than compliance with s 279.

37. [37]
    The particular categories set out in the authority were as follows:

38. [38]
    Of the nine particular categories of information set out in the authority, the alternative authority most recently offered by the respondent would provide all that was sought in categories 1, 2, 3 and 5. It would also provide that sought in respect of each of the five other categories; but restricted to a period of three years prior to the event when the injuries were alleged to have been sustained.

39. [39]
    In offering to provide authority for that information to be given for a period of three years, the solicitors for the respondent referred to the decision of Suncorp Metway Insurance Limited v Brown.  Williams JA had observed at [17]:

“As evidenced by the rules relating to provision of particulars of loss or damage, a period of three years prior to the accident is generally regarded as a reasonable period within which information relevant to quantum of damages should be supplied.”

40. [40]
    In rejecting that offer as being unacceptable to the applicant, its lawyers emphasised that his Honour had gone on to observe:

“Of course in a particular case it may be obvious that the duty to co operate would require steps being taken outside of those parameters.”

41. [41]
    The applicant contends that this is such a case.

42. [42]
    In its written submissions, the applicant contends that the nature and type of convictions are relevant to both an assessment of the respondent’s credit and his employability. It identifies the respondent’s lengthy period of incarceration and the matters for which the respondent was incarcerated as matters “that go to the assessment of the claim for global disadvantage of economic loss”. It says that those matters set the context within which the issues of how the respondent’s earning capacity has been diminished, and/or how he will suffer economic loss, will be determined. It also submits that it may be that the matters for which the respondent was incarcerated involved fraud which would have a collateral effect upon his credit, particularly with respect to contested claims about his capacity for work.

43. [43]
    Assuming for the moment that those submissions are correct, all of the information identified as relevant would be provided under categories 1, 2 and 3; all of which were offered by the respondent but rejected as unacceptable by the applicant. File notes, correspondence, memoranda and medical treatment notes and reports do not illuminate the issues of the periods, of, or reasons for, incarceration.

44. [44]
    In my view, apart from providing precedent for the ability to make an order requiring a claimant to execute an authority directed to a particular agency or department, Suncorp Metway Insurance Limited v Brown provides little support for the applicant’s case.  In that case the authority was to be directed only to Centrelink.  Centrelink was clearly a department, agency or instrumentality of the Commonwealth administering welfare laws within the meaning of the Act and Regulation.  In his notice of claim the claimant had disclosed that he had previously made a claim for social security benefits with respect to a significant disability which “may be relevant to the extent of the injury suffered by the injured person in the accident.”

45. [45]
    Even then, Williams JA was clearly concerned that the information sought be restricted to only that which could be relevant to the claim. At [17] his Honour observed:

“The concern I have with the order … initially sought here, is that the reference is to the claimant’s Centrelink file.  Centrelink may have opened a file on a claimant many, many years before the incident giving rise to the claim for damages, and the file may contain highly sensitive material about the claimant entirely irrelevant to the claim for damages.”

46. [46]
    Williams JA also observed that:

“information obtained pursuant to an initial request may provide a basis for the insurer making a second, and wider, request for information.  But, importantly in my view, it would rarely be appropriate for the insurer to demand production of the whole of a Centrelink file on the claimant in the first instance.”

47. [47]
    It was in that context that his Honour made his observations about the limits which would ordinarily be imposed upon the period of disclosure.

48. [48]
    In that regard, it is to be borne in mind that the disclosure made by the respondent of his 17 year incarceration was in response to a question which only required disclosure for the period of three years before the date of injury. Almost all of the incarceration would have been outside of that period. Only a few months could fall within it. That candid disclosure by the respondent should not now be used to assert a necessity to obtain file notes, correspondence and memoranda concerning everything that occurred in relation to every aspect of his incarceration. Much occurs over a 17 year period in any claimant’s life. Section 275(7) of WCRA has the effect of making some aspects of those life experiences, so far as they are relevant to a claim for damages, available for scrutiny and consideration. In my view, the fact that for one person those life experiences occur in a prison should not broaden the extent to which those experiences are open to scrutiny beyond that which would be the case for any other claimant. The mere fact that records of the kind sought will have been created by prison authorities, does not warrant access being provided to them.

49. [49]
    In his oral submissions Mr O'Driscoll further contended that the information and documents sought would be necessary for the cross-examination of the respondent at trial. That may be so, but it is not the purpose of pre-court procedures under Chapter 5, Part 5 of the WCRA. There are other means by which documents may be obtained for the purposes of trial.

50. [50]
    For those reasons I would refuse the obligation.

A further issue

51. [51]
    On the day prior to the hearing the respondent provided instructions to his solicitors that his incarceration had been in New South Wales, not Queensland.  It appears that the applicant, in seeking to obtain information from Queensland entities, had assumed the incarceration to have been in this State.  Mr O'Driscoll sought to amend the application to have the authority which the respondent would be ordered to sign directed to commensurate entities in New South Wales.  Mr Myers opposed the amendment.

52. [52]
    Because I would refuse the application in any event it is unnecessary for me to decide whether s 275 and s 279 would support an order being directed to, for example, the prison authorities of a State other than Queensland.  Suffice to say that I have some reservations about whether it would.  Section 275(7)(f) refers to obtaining information from “a department, agency or instrumentality of the Commonwealth or the State.”  By contrast, s 275(7)(b) refers to obtaining information from “the ambulance service of the State or another State.”  The distinction of language is obvious.  If s 275(7)(f) was to be construed to allow information to be obtained from the departments etc. of other States, then there would be no work to be done by the words “or another State” in s 275(7)(b).

Disposition

53. [53]
    I dismiss the application with costs.