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Goulevitch v Workers' Compensation Regulator[2019] QIRC 47

Goulevitch v Workers' Compensation Regulator[2019] QIRC 47

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Goulevitch v Workers' Compensation Regulator [2019] QIRC 047

PARTIES:

Goulevitch, Bruce Murray

(Appellant)

v

Workers' Compensation Regulator

(Respondent)

CASE NO:

WC/2018/180

PROCEEDING:

Objection to Notice to Produce

DELIVERED ON:

15 March 2019

HEARING DATES:

15 November 2018

22 January 2019

6 February 2019 (Appellant's Submissions)

12 February 2019 (Department's Submissions)

19 February 2019 (Anderson's Submissions)

MEMBER:

HEARD AT:

Thompson IC

Brisbane

ORDERS:

  1. Orders to set aside Notice in part.
  1. Orders for disclosure as identified within 21 days of this decision.

CATCHWORDS:

WORKERS' COMPENSATION APPEAL AGAINST DECISION INDUSTRIAL LAW – Psychiatric or psychological injury – Notice of Non-Party Disclosure – Objection – Requisite standard of proof – Alteration to Notice of Non-Party Disclosure.

LEGISLATION:

Workers' Compensation and Rehabilitation Act 2003, s 32, s 552A

Industrial Relations (Tribunals) Rules 2011, rr 64B, 64C, 64E, 64G

APPEARANCES:

Mr B. Goulevitch, Appellant.

Ms S. Young of the Workers' Compensation Regulator, Respondent.

Mr R. Swain of the State of Queensland (Department of Environment and Science).

Mr J. Anderson.

Reasons for Decision

Background

  1. [1]
    On 3 September 2018 the Workers' Compensation Regulator (the Regulator) advised Bruce Goulevitch (Appellant) that his application for review received on 29 June 2018 in relation to a decision by WorkCover Queensland (WorkCover) to reject his application for compensation had been determined, whereby it had been found:

I have confirmed the decision of WorkCover to reject your application for compensation, in accordance with s 32(5) of the Workers' Compensation and Rehabilitation Act 2003 (the Act).

  1. [2]
    On 2 October 2018 the appellant lodged with the Queensland Industrial Relations Commission (Commission) a Notice of Appeal.
  1. [3]
    The appellant on 6 November 2018 had lodged with the Commission a Form 29 - Notice of Non-Party Disclosure which named:
  • the Department of Environment and Science (Department) as the "nominated party"; and
  • Jeremy Anderson (Anderson) as the "affected party".
  1. [4]
    On 14 November 2018 the Department forwarded correspondence to the Commission seeking leave to object at a later date to a Notice of Non-Party Disclosure for a number of identified reasons.
  1. [5]
    The Commission (as constituted) held a conference pursuant to s 552A of the Workers' Compensation and Rehabilitation Act 2003 (the Act) on 15 November 2018.
  1. [6]
    A further conference was held on 22 January 2019 which dealt solely with the issue of nonparty disclosure which resulted in Further Directions being issued on 22 January 2019 as follows:
  1. That the Appellant supply to the Department of Environment and Science and Mr Jeremy Anderson (via the Department of Environment and Science) and file in the Industrial Registry by 4.00 pm on 5 February 2019, submissions with regards to the objections to the Notice of Non-party Disclosure.
  1. That the Department of Environment and Science and Mr Jeremy Anderson supply to the Appellant and file in the Industrial Registry by 4.00 pm on 19 February 2019, response submissions in reply (if any).
  1. That the matter will be dealt with on the papers.
  1. [7]
    Note:  Prior to the issue of Further Directions on 22 January 2019 both the Department and Anderson had filed with the Commission objections relating to the Notice of NonParty Disclosures.

Industrial Relations (Tribunals) Rules 2011

  1. [8]
    Rule 64B provides that a party to a proceeding may, by notice of a non-party production, require that documents be produced that were directly relevant to a matter in issue in the proceedings.  A notice is served pursuant to r 64C in which it must state the matter in issue in the proceeding about which the document sought is directly relevant.
  1. [9]
    An objection can be made regarding the production of the documents sought in accordance with r 64E(4) for reasons that may include:

  1. (b)
    the lack of relevance to the proceeding of the documents mentioned in the notice;
  1. (c)
    the lack of particularity with which the documents are described;
  1. (d)
    a claim of privilege;
  1. (e)
    the confidential nature of the documents or their contents;
  1. (f)
    the effect production would have on any person…
  1. [10]
    The Commission may make any Order it considers appropriate in accordance with r 64G, that includes:
  1. (a)
    lifting the stay; or
  1. (b)
    varying the notice; or
  1. (c)
    setting aside the notice.

Notice of Non-Party Disclosure

  1. [11]
    The appellant attached the following schedule to the Form 29 - Notice of Non-Party Disclosure which identified the documents sought in terms of the Notice:

No.

Date

Description

1

Various

All performance and development agreements signed by Bruce Murray Goulevitch and Jeremy Robert Anderson between 1 January 2012 and 21 March 2017

2

Various

All performance and development agreements signed by Bruce Murray Goulevitch and his various managers between 1 January 2012 and 21 March 2017

3

Various

All timesheet entries of Bruce Murray Goulevitch, including day start, lunch start, lunch end, day end, project codes and comments, between 1 January 2012 and 21 March 2017

4

Various

All timesheet entries of Jeremy Robert Anderson, including day start, lunch start, lunch end, day end, project codes and comments, between 1 January 2012 and 21 March 2018

5

Various

A list of all Department of Science, Information Technology and Innovation (DSITI) mandatory training completed by Bruce Murray Goulevitch between 1 January 2012 and 21 March 2017

6

Various

A list of all DSITI mandatory training completed by Jeremy Robert Anderson between 1 January 2012 and 21 March 2017

7

Various

All examples of workplace bullying in the DSITI mandatory training packages available to staff between 1 January 2012 and 21 March 2017

8

Various

All examples of timesheet fraud in the DSITI mandatory training packages available to staff between 1 January 2012 and 21 March 2017

9

Various

All documents used by SDITI, between 1 January 2012 and 21 March 2017, to manage and investigate workplace bullying including but not limited to - work procedures, fact sheets, guidelines and policy documents.

10

Various

All documents used by DSITI, between 1 January 2012 and 21 March 2017, to manage and investigate timesheet fraud including, but not limited to - work procedures, fact sheets, guidelines and policy documents.

Note:  Item 4 references 21 March 2018 which is an error with the correct date being 21 March 2017.

Item 1 - performance and development agreements signed by Bruce Murray Goulevitch and Jeremy Robert Anderson between 1 January 2012 and 21 March 2017

Objections

  1. [12]
    Affected Party - Rule 64E(4)(b) - the objection cited the lack of relevance to the proceedings as these documents were not contentious and one of the many tools to itemise some personal and team objectives, activities and reviewed success indicators.
  1. [13]
    Rule 64E(4)(f) release of the documents may have an adverse effect on him as they would become a public document.

Item 2 - no objections

Item 3 - All timesheet entries of Bruce Murray Goulevitch, including day start, lunch start, lunch end, day end, project codes and comments, between 1 January 2012 and 21 March 2017

Objections

  1. [14]
    Nominated Party - Rule 64E(4)(b) - irrelevant to the legal and factual issues raised by the appellant in his notice of appeal.  The appellant's timesheets are irrelevant to the nature of the relationship with Anderson or any injury allegedly suffered.
  1. [15]
    Voluminous and time consuming to provide as it covers a five-year period.

Item 4 - All timesheet entries of Jeremy Anderson including day start, lunch start, lunch end, day end, project codes and comments, between 1 January 2012 and 21 March 2018 [2017]

Objections

  1. [16]
    Affected Party - Rule 64E(b) - lack of relevance in the proceedings for the documents mentioned:
  • appellant had cast his request far too broadly;
  • after March 2017 timesheets prepared by Anderson were not submitted to the appellant for approval; and
  • for over a decade the appellant had primarily approved the timesheets.  The records were not contentious.
  1. [17]
    Rule 64E(4)(e) release of documents may have an adverse effect on him as they would become public documents.
  1. [18]
    Nominated Party - Rule 64E(4)(b) irrelevant to legal and factual issues raised by the appellant.  The Commission is not required to make findings about Anderson's timesheets in the proceedings.
  1. [19]
    Voluminous and time consuming to provide as it covers a six-year period.
  1. [20]
    Note:  The objection on the grounds of voluminous and time consuming was withdrawn in the response document.

Item 5 - A list of all Department of Science, Information Technology and Innovation (DSITI) mandatory training completed by Bruce Murray Goulevitch between 1 January 2012 and 21 March 2017

Objections

  1. [21]
    Nominated Party - Rule 64E(4)(b) objection on the grounds that the documents identified are irrelevant to the legal and factual issues raised in the notice of appeal.  The appellant's training record is irrelevant to the nature of his relationship with Anderson.
  1. [22]
    Note:  The objection was not pursued on the basis of reasons contained in the response document.

Item 6 - A list of all DSITI mandatory training completed by Jeremy Robert Anderson between 1 January 2012 and 21 March 2017

Objections

  1. [23]
    Affected Party - Rule 64E(4)(b) lack of relevance to the proceedings of the documents mentioned.
  1. [24]
    The appellant had case the request too wide and it is unlikely the training records were relevant to the appeal.
  1. [25]
    Nominated Party - Rule 64E(4)(b) - the documents identified were irrelevant to the legal and factual issues raised in the notice of appeal.  Anderson's training record is irrelevant to the nature of his relationship with the appellant or any injury allegedly suffered.
  1. [26]
    The training that the appellant received about workplace bullying or timesheet fraud does not disclose anything about the relationship with the appellant or prove any alleged conduct.

Item 7 - All examples of workplace bullying in the DSITI training packages available to staff between 1 January 2012 and 21 March 2017

Objections

  1. [27]
    Nominated Party - Rule 64E(4)(b) - objection on grounds that documents are irrelevant to the legal and factual issues raised in the notice of appeal.  The training is irrelevant to the relationship between the appellant and Anderson and the material would not assist to prove or disprove the appellant's allegations.

Item 8 - All examples of timesheet fraud in the DSITI mandatory training packages available to staff between 1 January 2012 and 21 March 2017

Objections

  1. [28]
    Nominated Party - Rule 64E(4)(b) objection on the grounds that the documents are irrelevant to the legal and factual issues raised in the notice of appeal.  The training is irrelevant to the nature of the relationship between the appellant and Anderson or any injury allegedly suffered.

Item 9 - All documents used by the DSITI between 1 January 2017 and 21 March 2017 to manage and investigate workplace bullying including but not limited to work procedures, fact sheets, guidelines and policy documents

Objections

  1. [29]
    Nominated Party - Rule 64E(4)(b) objection on grounds that the documents were irrelevant to the legal and factual issues raised by the appellant in the notice of appeal.  They were irrelevant to the nature of the relationship with Anderson and any injury he allegedly suffered.

Item 10 - All documents used by DSITI between 1 January 2012 and 21 March 2017, to manage and investigate timesheet fraud including, but not limited to, work procedures, fact sheets, guidelines and policy documents

Objections

  1. [30]
    Nominated Party - Rule 64E(4)(b) objection on the grounds that the documents were irrelevant to the legal and factual issues raised in the notice of appeal.  They were irrelevant to the relationship between the appellant and Anderson or any injury allegedly suffered.

Appellant

  1. [31]
    The appellant strongly supported the proposition that without the provision of the documents identified in items 2 to 10 (inclusive) in the Notice of Non-Party Disclosure, the Commission may be in a position where it is denied access to important evidence that is factually relevant to the issues in the proceedings.  Further, provision of the documentation increases the chances of the parties being able to appropriately test the veracity of evidence and decreases the chances of the Commission having false evidence placed before it which is uncontested.
  1. [32]
    The appellant provided argument in support of the application that included but was not limited to:
  • Item 2 - issues with agreements having not been completed or signed off correctly.  Note:  objection to this item was withdrawn;
  • Item 3 - documentation provided by the Nominated Party had fully satisfied his request;
  • Item 4 - there had been an error in the dates identified by the appellant in particular the reference to 21 March 2018 which should have read 21 March 2017.  The argument presented by the Nominated Party with regards to the time-consuming nature of the request was challenged on the basis of a previous disclosure which had taken a 23-minute time period. 

Note:  the Nominated Party withdrew the opposition based on the time component;

  • Items 3 to 10 - the appellant challenged the objections that had been made based upon a range of "legal issues" relied upon by the Nominated Party on the basis that the argument had lacked particulars.  In particular to documentation sought in respect of mandatory training he argued that ought to be provided on the basis of the alleged bullying occurring despite the training being provided to the Affected Party;
  • Affected Party - documentation sought regarding the Affected Party having not met his obligations to comply with reasonable management directions to undertake work and failed to inform the appellant when time sensitive work on key projects had been completed; and
  • Appellant and Affected Party's relationship - the objection to providing documentation was based on being irrelevant in respect of the relationship between the two and any injury allegedly suffered by the appellant, was rejected on the basis that it would be necessary for the Commission to have access to this material to be able to determine the facts in issue at the proceedings.

Conclusion

  1. [33]
    On consideration of the material available, I have determined in accordance with the requisite standard of proof that the Notice of Non-Party Disclosure not be approved in its original form but be the subject of some alteration by way of certain exclusions and an amendment on the basis of the relevance or otherwise of the documentation sought.
  1. [34]
    The appellant had requested the production of documentation that related to the employment circumstances of Anderson (Affected Party) that, on the face, was highly unlikely to be of assistance in the proceedings going forward (Item 4).  Similarly, the request for production of documentation in respect of incidents that had no direct relationship to the appellant was also highly unlikely to be of assistance in the proceedings forward (Items 9 and 10).
  1. [35]
    I have in certain circumstances accepted the arguments advanced by the objectors to the Notice of Non-Party Disclosure in preference to the appellant, due to insufficient grounds that established such disclosure was warranted.  Notwithstanding, the Notice of NonParty Disclosure had sought documentation to which the appellant had demonstrated an entitlement to access for the purposes of prosecuting the appeal.

Orders

  1. [36]
    The Notice of Non-Party Disclosure filed on 6 November 2018 by the appellant be set aside in respect of the disclosure sought in Items 4, 8, 9 and 10.
  1. [37]
    The Nominated Party is directed to disclose in full to the appellant within 21 days of the release of this decision, the following:

No.

Date

Description

1

Various

All performance and development agreements signed by Bruce Murray Goulevitch and Jeremy Robert Anderson between 1 January 2012 and 21 March 2017

2

Various

All performance and development agreements signed by Bruce Murray Goulevitch and his various managers between 1 January 2012 and 21 March 2017

3

Various

All timesheet entries of Bruce Murray Goulevitch, including day start, lunch start, lunch end, day end, project codes and comments, between 1 January 2012 and 21 March 2017

5

Various

A list of all Department of Science, Information Technology and Innovation (DSITI) mandatory training completed by Bruce Murray Goulevitch between 1 January 2012 and 21 March 2017

7

Various

All examples of workplace bullying in the DSITI mandatory training packages available to staff between 1 January 2012 and 21 March 2017

Note:  The appellant had conceded that the documentation previously provided by the Nominated Party in respect of Item 3 had fully satisfied his request.

  1. [38]
    In terms of Item 6 the Nominated Party is to disclose a list of all mandatory training completed by Anderson (Affected Party), limited to workplace bullying.
  1. [39]
    I so order.
Close

Editorial Notes

  • Published Case Name:

    Goulevitch v Workers' Compensation Regulator

  • Shortened Case Name:

    Goulevitch v Workers' Compensation Regulator

  • MNC:

    [2019] QIRC 47

  • Court:

    QIRC

  • Judge(s):

    Thompson IC

  • Date:

    15 Mar 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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