Healy v Logan City Council[2016] QDC 15

DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an application under the Workers’ Compensation and Rehabilitation Act2003 (“the Act”) s 287 for the defendant to comply with its obligation under s 279 to provide information.  A very detailed request for information was made by the solicitors for the plaintiff to the solicitors for the defendant on 26 October 2015.  The plaintiff says that the information has never been provided, and seeks the information.  Eighteen questions were referred to in the Scott Schedule handed up at the hearing, but questions 1 and 17 were not pressed.  The application is resisted.  The first issue is as to the scope of the obligation on a party under s 279(1) of the Act.

2. [2]
   Section 279 provides as follows:

3. [3]
   The plaintiff’s argument was in essence that subsection (1) provides a broad general duty to cooperate which is not confined by the terms of the specific paragraphs set out. Counsel for the plaintiff appeared to concede that in substance his argument involved reading the introductory words of the subsection as if the words “in particular” meant “including”. The respondent resisted this interpretation, and submitted that relevantly the obligation to provide information was that specified in paragraph (b), just as the obligation to provide documents was that specified in paragraph (a), bearing in mind the terms of subsections (2), (3C) and (6). Counsel for the plaintiff referred to s 273, which indicates the object of Part 5 is to facilitate the just and expeditious resolution of the real issues in a claim for damages with a minimum of expense, and s 274, which provides in subsection (1) that the part is to be applied by the parties to avoid undue delay, expense and technicality and to facilitate the object.

Interpretation of s 279(1)

4. [4]
   Counsel for the plaintiff relied on the decision of P Lyons J in McGuire v Woolworths Limited(S9924/2009, 25/9/09, P Lyons J, unreported).  That was an application under s 287 to enforce s 279 of the Act, but in circumstances somewhat different from that in the present case: the applicant alleged that he had suffered injury over a period of time while lifting cartons of meat in the course of his employment with the respondent, and engaged an expert to provide evidence as to potential negligence in the system of work used by the respondent.  There was an arrangement made for the expert to visit the worksite, which occurred, but the inspection took place on a day when there was no delivery of meat, which affected the amount of work required to be done there.  It had already been established that the respondent did not keep delivery records for any great length of time, and did not have those relating to the period when the applicant alleged he suffered his injury, but the applicant’s solicitors sought information about deliveries in the period 14 days before and after the date of the inspection.  His Honour was persuaded to make an order in respect of documents around the time of the inspection, but suggested that a more appropriate order would be to provide for a date and time for another inspection, with the provision of relevant documentation for the period 14 days before and 14 days after that date. 

5. [5]
   For present purposes what matters is that his Honour said at p 3 of the transcript:

“The application is based on s 279 of [the Act].  It imposes a duty on each party to cooperate in relation to the claim.  Some particular aspects of the duty are identified but the duty is not limited by those particulars: see Suncorp Metway Insurance Limited v Brown [2004] QCA 325 at paras 12-14 where, in respect of similarly worded legislation, Williams JA expressed the view that that legislation imposed a broad, general duty, in that case on a claimant, to cooperate with an insurer.  The other members of the court agreed with his Honour.  Empowering the court to make consequential orders is found in s 287 of the Act.”

6. [6]
   Counsel for the plaintiff, who also appeared in that matter, told me that initially his Honour was reluctant to make the order, but was persuaded to do so by reference to the decision of the Court of Appeal in Suncorp Metway Insurance Limited v Brown [2005] 1 Qd R 204, to which his Honour referred.  That was a case under the Motor Accident Insurance Act 1994 (“the MAIA”), and the issue was whether s 45 of that Act imposed an obligation on a claimant to allow an insurer to obtain from Centrelink certain documents held by Centrelink in relation to the claimant, by executing the form of request for such documents required by Centrelink.  At first instance the application had been refused because paragraph (a) of subsection (1) referred expressly to copies of reports and other documentary material “in the claimant’s possession” and documents in the possession of Centrelink did not meet that description.  On appeal however, that was characterised as a narrow interpretation of s 45, and it was held that the obligation imposed by s 45 extended to an obligation to execute an authority directed to Centrelink requesting the release to the solicitors for the insurer of documents on the Centrelink file relating to payments by it to the claimant during the period of three years immediately preceding the date of the accident, and subsequently. 

7. [7]
   Williams JA, with whose reasons the other members of the Court agreed, said in the paragraphs referred to by P Lyons J:

8. [8]
   It is apparent when paragraph [14] is read that his Honour approached the matter on the basis that the statute imposed expressly in subsection (1)(b)(iv) an obligation to provide certain information to the insurer, and therefore to do all things necessary to provide that information. This point was also referred to expressly by McPherson J who, after agreeing with the reasons of Williams JA, added brief comments at [1] which concluded with the following about the obligation imposed on the claimant:

“Restricted in the way proposed by Williams JA, it falls fairly within the duty of cooperation mandated by s 45(1)(b)(iv).”

9. [9]
   These reasons, as well as the reasons of Williams JA, were expressly agreed with by the present Chief Justice: [21]. Accordingly, in my opinion it is clear that the Court of Appeal put the matter specifically on the basis that the obligation sought to be enforced was one contained within the express terms of paragraph (b)(iv). It was not put on the basis that the introductory words to the subsection imposed a wider obligation on a claimant in relation to the provision of documents or information than that specified in paragraphs (a) and (b). The case was about the interpretation of the particular obligations expressed in the subsection, rather than one which in some way relied on the existence of a broad general obligation imposed by the subsection in addition to the particular obligations expressed in it. It is therefore no authority for the existence of a broad general obligation in addition to the particular obligations; it is simply authority for the proposition that those particular obligations should not be interpreted narrowly, but that the terms of the subsection, when interpreted with regard to the object of the legislation in s 3, had the effect of imposing a broad general duty on a claimant to cooperate with the insurer.

10. [10]
    This is consistent with the comments of the Court of Appeal in Gitsham v Suncorp Metway Insurance Limited[2003] 2 Qd R 251 at [66] that:

“A fair reading of s 45(1)(b)(i)-(iv) of the Act compels the conclusion that it intends to cover the whole field of what an insurer who may have become a defendant would want to know about the claim.”

Again, the court is not saying there that the introductory words of s 45(1) provide a broad general duty to cooperate which is wider than the express terms of the following paragraphs, but rather that the express terms of paragraph (b) about the provision of information cover all the information that an insurer needs to know, so are wide enough. 

11. [11]
    The other point made by P Lyons J in McGuirewas that the approach in Brownwas applicable because of the similarity in the wording of the two sections.  Counsel for the plaintiff relied on the fact that both s 279(1) of the Act and s 45(1) of the MAIA use the expression “in particular”, an expression which is not present in the equivalent provision in the Personal Injuries Proceedings Act2002 (“PIPA”), s 22, which relevantly provides:

“A claimant must give a respondent – (a) copies of the following in the claimant’s possession … (b) information reasonably requested by the respondent about any of the following … .”

It is true that there is no scope for an argument in relation to s 22 that the wording carries an obligation on a claimant which is wider than that specified in the two lettered paragraphs, but if one compares the introductory words of s 45(1) with the introductory words of s 279(1) it is apparent that there is a difference. 

12. [12]
    The introductory words of s 45(1) say:

“A claimant must cooperate with the insurer and, in particular must provide [certain documents] and must give [certain information].”

The introductory words of s 279 are that:

“The parties must cooperate in relation to a claim, in particular by giving each other copies of relevant documents … and giving information reasonably requested by each other party about [certain matters].”

The word ‘and’ in s 45(1) could be the basis of a finding that that subsection imposes separate obligations, a broad general obligation to cooperate, and separate specific obligations to provide the insurer with certain documents and certain information.

13. [13]
    Given that it has been held that paragraph (b) covers all the information an insurer would want to know about a claim, it is difficult to see how such a broad duty to cooperate could extend to the provision of some further information, but the wording is open to an interpretation on this basis that there is a duty to cooperate which is broader and which operates in addition to the particular duties about the provision of documents and information. But that argument does not apply to s 279, because of the absence of the word “and”.

14. [14]
    The enacting phrase in s 279(1) is that “the parties must cooperate … in particular by”. That in my opinion does not impose a broader duty than that which it goes on to particularise. The ordinary purpose of particulars in a legal context is to operate in a confining fashion, by specifying with greater precision something which has previously been stated in more general terms, on the basis that the governing provision then becomes the specific rather than the general statement. That in my opinion is the meaning of the expression “in particular” in this section; it does not seem to me to be consistent with ordinary usage for it to be interpreted as “including”. There is also the consideration that there would be little point in the legislature specifying particular obligations in relation to the provision of documents and information if the introductory words contained a broad general obligation to provide documents and information which was wider than the specific provisions then stated.

15. [15]
    It was submitted for the plaintiff that, if “in particular” is not read as “including”, it is effectively given no meaning and function at all; but if it is read in those terms, as contemplating the existence of a broader obligation in relation to information (and presumably documents), such an interpretation would in substance deprive paragraphs (a) and (b) of any meaning, because they would not operate as the effective delineations of the obligations to provide information and documents. When asked how the obligation to cooperate was otherwise to be limited, counsel for the plaintiff submitted that it was limited simply by what was reasonable; but the limitation of reasonableness is imposed expressly in s 279(1)(b), while paragraph (a) provides a limitation in relation to the provision of copies of documents by reference to documents identified as relevant in subsection (6). In my opinion, the correct approach to the interpretation of a provision of this nature is that, where the legislature has specified with particularity the extent of the obligation on the parties to provide information, that provision excludes the existence of some wider general obligation in relation to the provision of information.^[1]

16. [16]
    It may be noted that there are limitations on both the documents to be provided within the terms of paragraph (a), and the information to be provided within the terms of paragraph (b). The term “relevant documents” is defined in paragraph (6), and subsection (2) makes it clear that there is no general obligation under paragraph (a) to obtain documents from a third party in order to provide copies to the other party. This does not mean however that such an obligation might not be implied as a consequence of the obligation to provide information reasonably required in paragraph (b), along the lines of the actual decision in Brown(supra).

17. [17]
    There is also the consideration that the obligations are defined by reference to “the circumstances of the event resulting in the injury”, and the term “event” is itself defined in the Act, by s 31:

18. [18]
    I should mention the term “latent onset injury” is itself defined, in Schedule 6, as meaning “an insidious disease”. Hence for example if because of exposure to dust at the workplace a worker develops lung disease, the exposure to the dust would be an event for the purpose of s 31, and the circumstances of the exposure to the dust would be within s 279(1) of the Act. Section 31 defines “event” by reference to the cause of the injury suffered by the worker, suggesting that the phrase should be interpreted as it was in Doupain v JBS Australia Pty Ltd (Townsville D361/2012, 14/12/12, Baulch DCJ, unreported) at p 2.^[2]It would not cover, for example, the circumstances of an injury to another worker.^[3]

19. [19]
    In the circumstances therefore, if P Lyons J interpreted s 279 as imposing a broad general duty to cooperate which was wider than that specified in paragraphs (a) and (b), with respect I do not agree with that interpretation. I note that the decision was given ex tempore, and appears with respect to flow from some misunderstanding as to the interpretation given to s 45(1) in Brown(supra).  I do not consider that Brown is authority for interpreting s 45(1) as imposing a duty to cooperate which is wider than the obligations specified in (a) and (b), though it is authority for the proposition that those paragraphs should be broadly interpreted.  In particular, I do not consider that it is authority for the proposition that there is a general obligation to provide information which is broader than the specific obligation to provide information expressed in paragraph (b) of s 279(1).

20. [20]
    I do not consider that ss 273 and 274 require a different approach; they emphasise the expeditious resolution of the real issues in claims at a minimum of expense, and it is difficult to see that the approach being adopted by the plaintiff in the present application is consistent with that objective. What the plaintiff is doing in substance is delivering the equivalent of wide ranging interrogatories as to circumstances which might justify a claim for damages against the defendant. Interrogatories were once a common part of litigation including in personal injury actions, but in 1994 the Rules of the Supreme Court were amended and a requirement was introduced that leave be granted before interrogatories could be delivered, a requirement included in the Uniform Civil Procedure Rulesin 1999. ^[4]This was welcomed at the time as it was widely felt that in practice large numbers of interrogatories were being delivered, and answered, which were essentially a waste of time and money, because nobody ever referred to the answers again.^[5]

21. [21]
    The introduction of a requirement for leave, with a view to greatly reducing the use of interrogatories in litigation, was seen as a means of reducing the cost, and hopefully expediting the progress of, litigation. It has certainly made the use of interrogatories very rare. In these circumstances, interpreting s 279 as in substance allowing wide ranging interrogatories in relation to the circumstances of the event resulting in the injury could be seen as inconsistent with the requirements of ss 273 and 274. A capacity for requiring wide-ranging information to be provided, even if limited by a general requirement that the request be reasonable, could easily be used to slow down the resolution of a claim and increase the cost of dealing with it. Broad general requests for information apparently advanced merely on the basis that they may turn up something which will be of assistance in relation to a claim for damages, do not seem to be consistent with the desire for a focus on the real issues in the claim.

22. [22]
    In my opinion on its correct interpretation the obligation to cooperate by giving information is that specified in s 279(1)(b) of the Act; there is no broader duty to cooperate which can support an obligation to provide information not covered by that paragraph.  To the extent that McGuiredecided to the contrary I respectfully disagree with that interpretation, and decline to follow it.

23. [23]
    Council for the plaintiff referred to a number of other single judge decisions in the Supreme Court^[6], and in this Court^[7], but all of those decisions have in substance either simply followed the decision in McGuire, or not addressed the point.  They do not, it seems to me, raise any additional considerations which I need to discuss.  They are not binding on me, and are relevant only for two reasons: first, whether considerations of judicial comity would make it appropriate to follow such a course.  If in relation to a question of statutory interpretation either of two interpretations of a statute is fairly open, and other single judge decisions favour a particular interpretation, considerations of judicial comity would support a decision favouring that interpretation.  In addition, if a particular point of statutory interpretation had been decided in a particular way in an earlier case and the point was not reargued before me, it would ordinarily be appropriate for me to follow the earlier decision on the basis of judicial comity.  But I do not consider that judicial comity requires me to apply an interpretation of a statute which I consider to be wrong, just because other judges have done so. 

24. [24]
    The other consideration is whether there have been so many decisions following the analysis in McGuirethat the doctrine of communis error facit jus applies, so that I should accept the decisions as establishing a settled interpretation of s 279, even if I disagree with it.  The decision dates only from 2009, and there is no decision of the Court of Appeal which touches on the point.  There is also the consideration that matters of this nature are dealt with in the applications list and frequently by ex temporejudgments, which often do not find their way onto the court’s website,^[8]so there may well be other decisions to the contrary which have just not come to the notice of counsel in this matter.  I note that in RSL (Qld) War Veterans Homes Ltd v Palma [2010] QSC 222, M Wilson J, without referring to cases, applied s 279 in what I regard as the correct way.^[9]In all the circumstances I am not prepared to treat the point as being so clearly settled that it would be appropriate for me to fail to give effect to my own opinion as to the correct interpretation of the statute.

25. [25]
    The requests for information by the plaintiff will therefore have to be justified by reference to the terms of paragraph (b); that is to say the information requested must be about one of the matters referred to in subparagraphs (i)-(v), and the information must have been reasonably requested. I should mention two other matters. Counsel for the plaintiff sought to rely on the WorkCover Common Law Disclosure Policy as justifying the requests, on the basis that the information requested was consistent with that policy. In my opinion, the policy is not a relevant consideration. On an application under s 287, the question as to the scope of the obligation imposed by s 279 is a question for the Court to determine, bearing in mind the circumstances of a particular claim, and the court’s opinion as to what is reasonable. It is not relevant to consider WorkCover’s opinion as to the scope of s 279, or the question of what is reasonable, for that purpose.

26. [26]
    Counsel for the plaintiff also referred me to the various provisions of the Statement of Claim, which was filed with the Claim on 14 January 2016, with a view to showing that all of the requests for information were relevant to the matters in issue in the proceeding, or at least were relevant to matters raised as particulars of negligence in the Statement of Claim. Section 279 however is in Part 5 concerned with pre-court procedures, and its scope of operation is plainly not limited to, or affected by, the scope of the allegations of negligence in a Statement of Claim.^[10]The section operates by reference to a claim, and it is apparent from it that it is intended to operate after a claimant has given a notice of claim under s 275.  Insofar as it is relevant for a claimant’s claim to be defined for the purpose of s 279, therefore, one would look to the Notice of Claim, not to court proceedings.  Section 279 must have been intended to operate by reference to the claim as set out in the Notice of Claim by the claimant.

27. [27]
    Having arrived at this conclusion it occurred to me that the submissions received on behalf of the plaintiff did not include submissions directed to supporting the requests for information in issue on the basis of the section interpreted as I have now concluded it should be interpreted. Indeed, apart from setting out the various requests in a Scott Schedule, nothing was said specifically about the detail of each request. I therefore invited further submissions on that matter and ultimately they were received. The defendant had already addressed the detail of the requests, and put in submissions in writing in reply.

Analysis of the requests

28. [28]
    In the present case the plaintiff served a Notice of Claim under the Act dated 2 October 2014.^[11]In that notice the plaintiff identified the event resulting in the injury as happening at 9.45 pm on 9 June 2013 at Grandstand 1 at the Logan Metro Sports Centre at a particular address.  Her description of the details of the event resulting in injury was as follows:

“I had been directed to clean the retractable grandstand.  We had been directed to stand on the benches and sweep rubbish to the side.  The stands were heavily contaminated with both wet and dry rubbish.  I was walking to ask a question to my supervisor Matt McKee when my left foot slipped on the benchtop causing me to fall face down onto the row of seating below me.”

The notice claimed that the plaintiff had suffered a subscapularis partial tendon tear in the left shoulder.  The defendant has denied liability.^[12]

29. [29]
    Under cover of a letter dated 26 October 2015 the solicitors for the plaintiff sent the relevant requests to the solicitors for the defendant.^[13]Request 1 was not pressed in argument.  Request 2 was in the following terms:

“Prior to or during the claimant’s employment with the respondent, was the claimant provided any induction and/or training in regard to the work activities that she was performing at the time of injury?  If yes then detail:

1. (a)
   what induction and/or training was the claimant given;

2. (b)
   when on each occasion the claimant was given induction and/or training;

3. (c)
   who provided the induction and/or training;

4. (d)
   if the induction and/or training was reduced to writing provide a copy of  same.”

30. [30]
    The objection advanced to providing this information was that this was an exercise in delivering a series of fishing interrogatories in circumstances where the plaintiff would not be granted leave to deliver interrogatories had an application been made to do so in the proceeding. The question of whether the defendant is obliged to provide this information depends on whether what is sought is information about the circumstances of the event resulting in the injury to the plaintiff, and whether the information was reasonably requested. As to the former point, it is significant that “event” is defined as anything that results in injury, so that anything which could be said to be a cause of the injury is part of the event. In the immediate sense the cause of the injury was the fall of the plaintiff, but it can also be said to be relevant to consider, in the context of liability for the injury, the cause of that fall. The proposition that an injury at work was caused by inadequate or defective training is by no means novel, and in the present case the plaintiff in the Notice of Claim specifically asserted that she had been directed to stand on the benches.

31. [31]
    Although I do not accept the interpretation of the decision in Brown(supra)contended for on behalf of the plaintiff, I accept that that decision proceeded on the basis that statutory provisions such as s 279 should be given a broad interpretation, to enable a proper exchange of information so as to maximise the prospects of the real issues in relation to the claim being resolved quickly and efficiently.  That would be consistent with the adoption of a broad interpretation of the concept of causation for the purposes of “event”, so that that term can be seen as embracing anything which can be characterised as a cause of the injury, even in an indirect sense.  That in my opinion extends to the content of training, at least so far as that training relates to the performance of the task the plaintiff was performing at the time leading up to this injury.  That limitation was present in the request for information, which was confined to induction or a training “in regard to the work activities that she was performing at the time of injury”.  In context that means induction or training specifically about cleaning this grandstand, and so confined it does appear to me to be a request for information about the circumstances of the event, within the meaning of s 279(1)(b)(i). 

32. [32]
    The other question is whether the information was requested reasonably. The question of whether this sort of request for information could be the subject of a successful application for leave to deliver interrogatory under the UCPRis not in my opinion the test of what is reasonable for this purpose.  Apart from anything else, there are decisions of the Court of Appeal where that question has been said not to be relevant.^[14]Nevertheless, the fact that interrogatories have been largely consigned to legal history because they tended to be generally no more than an ineffectual exercise in running up legal costs, suggests that, where a request for information has about it the flavour of old fashioned interrogatories, they need to be scrutinised with some care to ensure that they are reasonable, and not simply an exercise in running up costs.

33. [33]
    In my opinion the question of reasonableness is something which should be tested by reference to the terms of ss 273 and 274, which suggests that the focus should be on the achievement of justice, the avoidance of undue delay and expense, and the resolution of the real issues in a claim. The approach in Brownsupports the early provision of information relevant to the claim, but the requirement of reasonableness does suggest some limitations.  I expect that ordinarily a request for information which the requesting party already has, even if not necessarily in the precise form of answers to the request as formulated, would be unreasonable, as tending to unnecessary delay and expense,^[15]as would a request for information which did not appear to be related to a real issue in relation to a claim for damages.  This is something which will ordinarily have to be decided on a case by case basis.

34. [34]
    With regard to this particular request, given the terms of the Notice of Claim I consider that there is some real issue as to the instruction given to the plaintiff in relation to the cleaning of this grandstand, and in those circumstances, this request for information, so limited, was on the face of it reasonable. There was however information provided to the plaintiff already about induction and training already, in the statement of Mr McKee, a copy of which was provided to the solicitors for the plaintiff on 25 May 2015.^[16]The section is concerned with the provision of information, and to the extent that information has already been in substance provided, in my opinion a request that it be provided again is unreasonable.^[17]Accordingly, in my opinion the request as it was made was unreasonable, but it would be reasonable if modified to refer to induction or training other than as disclosed in the statement of Mr McKee dated 20 May 2015.

35. [35]
    Request 3 sought details of any risk assessment undertaken by the defendant about the work activities the claimant was performing at the time of the injury. I find it difficult to relate this to the concept of circumstances of the event as I have identified it, even accepting that it should be given a broad interpretation. The mere undertaking, or not undertaking, a risk assessment in itself does not cause anything. The way in which the work was required to be carried out might produce a risk of injury, but that depends not on the risk being identified but on how the work was carried out. In some circumstances undertaking a risk assessment can be relevant to whether or not a particular system of work was negligent, but that is different from whether the system of work was a cause of the plaintiff’s injury. In my opinion seeking information about a risk assessment is not seeking information about the circumstances of the event resulting in the injury, even giving that expression a broad interpretation, and accordingly request 3 was not a proper request for information.

36. [36]
    Request 4 asked about an operating manual or work procedure for the relevant task, cleaning the grandstand. That does seem to be directed to the question of what the system of work was within which the plaintiff was operating at the time, and accordingly would be something within the scope of the circumstances of the event. Whether the defendant has such a thing would be within the knowledge of the defendant, so it was reasonable to request that information. If there was such a thing, obtaining a copy of it would also fall within the scope of paragraph (a)(i).

37. [37]
    Request 5 was in the following terms:

“In the period of the claimant’s employment with the respondent, did the respondent hold any pre-start meetings, toolbox meetings or similar meetings relevant to the work activities the claimant was performing at the time of injury?  If yes then detail the date of each of the pre-start meeting, toolbox meetings or similar meetings held.  If discussions held in such meetings were reduced to writing, provide copies of same.”

In relation to this request, it occurs to me that it is possible that at such a meeting, if they had been held, some instruction relevant to what the plaintiff was doing at the time of the accident might have been given, so I suppose it is possible, at least in principle, that something might have been said at such a meeting, if there were any, which might have been relevant to the system of work within which the plaintiff was operating at the time, and in that way related to a cause of her injury.  On the question of whether the information is reasonably requested, however, it does seem to me that the request in the present case is so remote from the actual fall as to be unreasonably broad, and therefore not reasonably requested.  It also strikes me as speculative.  It is one thing to say that it is reasonable to ask whether the plaintiff was ever told that she was to walk, or not to walk, on the benchtops when moving around while cleaning the grandstand; it is another to ask whether there was any occasion on which any such instruction might have been given.  That I consider is too remote from the real issues in relation to the claim to be reasonably requested.

38. [38]
    Request 6 asked about a task description for the work activity the plaintiff was performing at the time of the injury. I take it that this would be some document identifying the scope of the work which she was supposed to be carrying out, and as such could well be relevant to identifying the system of work in place, which may have been a cause of the injury. On the other hand, assuming a written task description existed, what would matter would be the one provided to the plaintiff most recently before the injury. Accordingly it is unnecessary to identify or provide copies of any earlier task description. So confined however in my opinion request 6 was a request for information about the circumstances of the event and was reasonably requested.

39. [39]
    Request 7 sought whether the plaintiff was supervised and if so by whom. In theory this could be a matter relevant to the cause of the plaintiff’s injury, and hence within the “circumstances of the event” for the purposes of paragraph (b)(i); it seems however it was not information reasonably requested, because it is information already known. The Notice of Claim identified the supervisor as a Mr McKee, and a copy of the statement by Mr McKee dated 20 May 2015 which was disclosed to the plaintiff’s former solicitors by the solicitors for the defendant was exhibited to the request.^[18]The statement does not expressly state that he was her supervisor but does not dispute that proposition, refers to having employed her, and describes himself in terms which suggest that he was in charge of the venue at the time this cleaning was being undertaken.  In those circumstances, it seems clear there is no real issue as to who was the supervisor and the information was not reasonably requested.

40. [40]
    Request 8 directed attention to the statement in the Notice of Claim about the details of the event resulting in injury, and enquired about her assertion that she was directed to stand on the benches and sweep rubbish to the side, and then asked whether that was true. That is something relating to circumstances of the event, but it is obviously within her knowledge and accordingly it was not something reasonably requested of the defendant. The statement of Mr McKee referred to earlier contains a denial that he gave any such direction. He also states there was no direction given specifically as to cleaning this grandstand, which indicates that there was no direction given to the plaintiff to clean in any other particular manner. It seems to me that all of the matters sought in request 8 are either matters necessarily within the knowledge of the plaintiff, or are information which in substance has already been provided. In those circumstances, the request for information was not reasonable.

41. [41]
    Request 9 invited attention to a copy of a document exhibited to the request, and asked who completed it, when it was completed, and who signed it. The document is on its face an accident report form concerning the occasion when the plaintiff suffered the injury the subject of the claim. Obviously the plaintiff already has a copy of the document.^[19]The document largely speaks for itself, but if any clarification on these matters was required it was provided in the statement of Mr McKee.  In these circumstances, the information requested has in substance already been provided to the plaintiff, and for that reason alone the request was not reasonable.

42. [42]
    There is however a further reason why this request was not reasonable: the function of s 279 is to provide information for the attainment of the object referred to in s 273 of the Act, in the way provided by s 274(1) of the Act. This request appears to be directed, not to the just and expeditious resolution of the real issues in the claim, but to proof of the document at a trial. The whole point of this part of the legislation is to attempt to resolve these matters without a trial, so as to render such proof unnecessary. If there were a trial there are other more convenient mechanisms for proving such a document.^[20]At the time this request was made, there had not been a compulsory conference and proceedings had not commenced.  In my opinion in this context the information in request 9 was not reasonably requested.

43. [43]
    Request 10 in substance sought details of any direction to the plaintiff not to walk on the benchtops, or other steps taken to prevent her from doing so. In a context where the plaintiff claims to have slipped and fallen while walking on the benchtop, that request is directed to a matter within the concept of the circumstances of the event resulting in the injury. This does not appear to be a matter covered in the statement of Mr McKee. On the other hand, a statement by a senior cleaner, also employed by the defendant, said she gave some on the job training to the plaintiff, and was to the effect that she told the plaintiff not to stand on the benches.^[21]In substance therefore this information has already been provided to the plaintiff, and in those circumstances this request for information was not reasonable.

44. [44]
    Request 11 simply sought confirmation that a proposition stated in the report form, that the floor was wet and messy at the time of the incident, was correct. The document stands at the moment as an admission by the defendant to that effect, and in those circumstances to seek some further confirmation of that proposition strikes me as a complete waste of time and effort, just running up legal costs unnecessarily rather than seeking to facilitate the just and expeditious resolution of the real issues in the claim with a minimum of expense.

45. [45]
    Request 12 invited the defendant to look at a document which was an unsigned statement by a former cleaner, and asked whether there was a practice of the staff of the respondent when there were big events to stand on the benches to sweep, and if not, why was the claimant cleaning in this manner on the date of injury. The latter question is plainly not a proper request for information; apart from the fact that it assumes something, which may be contentious, that the plaintiff was cleaning in that fashion at the time, the reason for her doing so is necessarily a matter known to her, and probably only to her. However as to whether there was a practice of cleaning in this way, that is directed to the system of work which was in operation at the time, which as I have indicated in my opinion is something within the concept of the circumstances of the event. It was an unhelpful distraction to dress up the question by reference to the unsigned statement, but a request as to whether, as at the date of the plaintiff’s injury, the defendant was aware of any practice of the cleaning staff of standing on the benches to sweep when cleaning rubbish from the grandstand, is a proper and reasonable request for information, and in that form and to that extent it should be answered.

46. [46]
    Request 13, when stripped of the unnecessary distraction of another reference to the unsigned statement, in substance asked exactly the same question as the first question in request 12. It is not necessary for it to be answered twice.

47. [47]
    Request 14 asked whether the defendant, prior to the date of injury, had been advised by any servant or agent that there was inadequate equipment, in that the brooms were too wide to use in the isles, and if so by whom and when was this advice.^[22]There is nothing I have seen in the Notice of Claim, or in the other material, to suggest that a broom played any part in the plaintiff’s fall, or indeed that she even had a broom on that night; for what it is worth, the accident report form said that at the time of the incident she was carrying a squeegee.  In those circumstances, it seems to me that questions about brooms are necessarily not directed to the resolution of the real issues in relation to the claim.  It is not apparent on the material currently available that the width of any brooms had anything to do with the circumstances of the event, and so it was not a proper request.  The same applies to request 15, which also asked about brooms. 

48. [48]
    Request 16 sought confirmation initially of the proposition that the plaintiff was walking on the top of the bench. That request was manifestly unnecessary, since both the Notice of Claim by the plaintiff and Mr McKee’s statement assert that the plaintiff, immediately before she fell, was walking on the top of the bench. This is simply not an issue, let alone a real issue, in relation to the claim. The request then sought details of what steps, measures or precautions the respondent took to ensure the claimant did not walk on the top of the bench, including when they were taken and by whom. If the plaintiff fell while she was walking on top of the benches, presumably if she had not been walking on top of the bench she would not have fallen, at least not in the way that she did, and in those circumstances the question of what caused her to fall is within the concept of the circumstances of the event, which would make relevant consideration of whether there was a failure on the part of the defendant to take steps to prevent her from walking on the top of the bench.

49. [49]
    The information sought is therefore on the face of it within paragraph (b)(i), and would have been reasonably requested were it not for the fact that the information has already been provided, in the statement of Ms Dittrich.^[23]There is nothing in Mr McKee’s statement to indicate that he did anything to prevent or discourage the plaintiff from walking on benches prior to this incident.  There is nothing in the material that I have seen that suggests that any other person might have been involved in taking any relevant action.  In those circumstances the relevant information has already been provided to the plaintiff, and this request was therefore unreasonable.

50. [50]
    Request 17 was not pressed. Request 18 sought group certificates of three comparative workers for the financial years ending 30 June 2013, 30 June 2014 and 30 June 2015. Presumably what was desired was the group certificates of three comparableworkers, that is to say three persons whose earnings might provide some indication of what earnings the plaintiff would have achieved had she continued in her former employment with the defendant.  That could be seen to be information about the financial loss resulting from the plaintiff’s injury, otherwise simply providing group certificates of three other workers would appear to have nothing to do with the plaintiff’s claim.  The difficulty however is that the defendant’s solicitor has sworn that he has been advised that the defendant had during the three years in question no workers comparable to the plaintiff, in the sense of persons whose earnings would have provided a reasonable indication of those that would have been earned by the plaintiff had she remained in that employment.^[24]This was explained on the basis that the plaintiff was working on a casual basis, and there was a difference in the hours worked by different individual casual cleaners.

51. [51]
    That on its face strikes me as a plausible proposition. There is nothing in the plaintiff’s material which provides an answer to it, and in those circumstances, assuming that the information was reasonably requested, it would not be appropriate to order the defendant to provide it. It occurs to me that there are other ways of finding out the relevant information, such as by eliciting details of changes in the hourly rate of payment to casual cleaners since the time when the plaintiff stopped doing such work.

52. [52]
    Overall therefore of 18 requests for information only one of them was I consider information reasonably requested about a matter in s 279(1)(b) which the defendant ought to answer, though the defendant ought to answer three others in a modified form. Most of these requests however strike me as entirely unnecessary, and just an exercise in running up legal costs. That is not consistent with s 273, and I regard it as an approach to the efficient resolution of claims by injured workers which ought not to be encouraged. My distinct impression is that the defendant in this matter was being frank and forthright about disclosing its position, and I doubt very much whether anything very useful will be forthcoming even in response to the requests that I am prepared to order should be answered.

53. [53]
    In those circumstances, I order that the defendant provide the plaintiff with the following information, from the requests forming part of Exhibit CJP7 to the affidavit of Patino filed 20 January 2016:

1. (a)
   Request 2, except to the extent that the information requested has already been provided in or attached to the Statement of Matthew McKee dated 20 May 2015.

2. (b)
   Request 4.

3. (c)
   Request 6, but if there were more than one task description document, limited to the task description document provided to the plaintiff last before the date of injury.

4. (d)
   Request 12, so far as it asks whether, as at the date of injury, the defendant was aware of any practice of the cleaning staff of standing on the benches to sweep when cleaning rubbish from the grandstand where the plaintiff fell.

The application is otherwise dismissed.