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Mullins v Workers' Compensation Regulator; Ex parte Drake International Pty Ltd QIRC 65
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Mullins v Workers' Compensation Regulator; Ex parte Drake International Pty Ltd  QIRC 065
Drake International Pty Ltd
Workers' Compensation Regulator
Objection to Attendance Notice to Produce
7 May 2019
17 April 2019
Industrial Commissioner Black
INDUSTRIAL LAW – OBJECTIONS TO ATTENDANCE NOTICE TO PRODUCE – objections to notice brought on various grounds including relevance and oppression - whether notice correctly issued under subdivision 7 of the rules.
Workers' Compensation and Rehabilitation Act 2003 s 32
Industrial Relations (Tribunals) Rules 2011, subdivisions 7 and 7A
Mr M Rawlings of Counsel instructed by HWL Ebsworth, for Drake International Pty Ltd;
Mr J Ludwig of Counsel instructed by Supportah Ops Pty Limited for Ms Mullins;
Ms S Young for the Workers' Compensation Regulator.
- The appellant in the substantive proceedings, Ms Mullins, has sought the production of documents by a non-party to the proceedings, Drake International Pty Ltd. A Form 32B – Attendance notice to produce (the notice) was filed in the Industrial Registry by Ms Mullins on 14 March 2019 and was subsequently served on Drake on 18 March 2019.
- By way of correspondence filed with the Industrial Registrar on 25 March 2019, Drake has objected to the notice on a number of grounds including:
- The expense and inconvenience likely to be incurred in complying with the notice;
- Legal professional privilege;
- Vagueness, imprecision and a lack of particularity in the description of documents sought;
- Lack of relevance to the substantive proceedings of the documents sought;
- The effect of the notice if complied with on other persons;
- The confidential nature of some of the documents.
- The notice relates to an appeal filed on 10 December 2018 by Ms Mullins against a decision of the Workers' Compensation Regulator in which Ms Mullins' application for compensation was declined. Statements of facts and contentions have yet to be filed in the substantive proceedings. In these circumstances, the scope and nature of Ms Mullins appeal can only be comprehended by reference to her notice of appeal, including a copy of the Workers' Compensation Regulator's Review Unit decision dated 13 November 2018.
- This constraint has led to an application by Drake that the notice to produce be stayed pending the lodgement in the substantive proceedings of the parties statements of facts and contentions.
- The purpose or function of statements of facts and contentions as they are used in these proceedings was outlined by Martin P in Yousif v Workers' Compensation Regulator  ICQ 004:
It is consistent with the requirements of s 531 for a party in an appeal under the Act to set out its case by way of a Statement of Facts and Contentions. It alerts the other party to the case it will have to deal with and it identifies the issues which exist which, in turn, allow for a confinement of the matters in dispute. An appeal under the Act is not the time for a broad ranging inquiry into an unlimited number of complaints or grievances. The time and resources of the Commission are constrained and it is necessary for those constraints to be acknowledged in this way. Subject always to the Commission’s power to allow appropriate amendments (so that s 531 may be observed) a party will be bound by its Statement of Facts and Contentions and may not lead evidence which is not relevant to the identified issues.
Notice to produce
- While it is generally not permissible to use a subpoena (subdivision 7) for the purpose of effecting non-party disclosure , Ms Mullins sought the production of documents by way of a Form 32B and pursuant to subdivision 7 of the Industrial Relations (Tribunals) Rules 2011 (the rules) which relevantly provide:
58Issue of attendance notices
- (1)On the request of a party, a member of the commission or the registrar may issue an attendance notice to a person.
- (2)A member of the commission or the registrar may refuse a request of a party to issue an attendance notice requiring a person, who is a non-party to the proceeding, to produce a stated document if satisfied—
(a) the party could require the production of the document under subdivision 7A; and
(b) the party has not made reasonable attempts, under subdivision 7A, to obtain the document.
- (3)On the direction of a member of the commission, the registrar must issue an attendance notice to a person.
- (4)For subrule (1), a request for an attendance notice must—
(a) be in the approved form; and
(b) state the name or designation by office or position of the person to whom the attendance notice is directed, unless the court, commission or registrar otherwise directs; and
(c) be filed; and
(d) be accompanied by a draft of the attendance notice, in the approved form, that is requested.
- (5)An attendance notice, other than an attendance notice for a compulsory conference, may only be directed to a single person.
- (6)The name or designation by office or position of the person to whom an attendance notice is directed must be stated in the notice before it is issued.
59Requirements for attendance notice to produce
An attendance notice requiring a person to produce a stated document or thing must—
- (a)adequately describe the document or thing; and
- (b)contain a notice, in the approved form, telling the person that the person has the right to apply to the court or commission to have the attendance notice set aside on any sufficient grounds, including, for example—
(i) the document or thing is not relevant to the proceedings; or
(ii) privilege; or
(iii) oppressiveness, including oppressiveness because substantial expense may be incurred that may not be reimbursed; or
(iv) noncompliance with these rules.
60Inspection of document or thing produced under attendance notice
- (1)A document or thing produced to the court, commission or registrar, whether produced voluntarily or under an attendance notice, may be inspected by—
(a) the court, commission or registrar; and
(b) with permission of the court, commission or registrar—a party.
- (2)However, information obtained from the document must not be made public without the permission of the court, commission or registrar.
- (3)If the court, commission or registrar considers that part of a document does not relate to a matter in issue, the court, commission or registrar may order that the part be closed.
- There are also significant substantive and procedural differences associated with non-party disclosure sought under subdivision 7A of the rules, and a notice to produce sought under subdivision 7 of the rules, including:
- (i)Under Rule 58(2), the Commission may refuse a request of a party to issue an attendance notice requiring a person, who is a non-party to the proceeding, to produce documents if satisfied that the documents could have been produced pursuant to subdivision 7A of the Rules and where reasonable attempts had not been made under subdivision 7A of the Rules to obtain the documents;
- (ii)The production of documents under subdivision 7 involves the production of documents by the non-party to the Commission. Rule 60 provides that the documents may be inspected by the Commission, and may be inspected by a party to the proceedings with the permission of the Commission. The rule also provides that, if upon inspection of the documents by the Commission, the Commission considers that a document does not relate to a "matter in issue", the Commission may refuse to allow access to the document.
- While Ms Mullins did not satisfy the requirements of r 58(2), the Commission exercised its discretion to issue the notice. Whether the notice should have been issued under subdivision 7A, may be a matter for consideration in future proceedings.
Stay of notice to produce
- It was the submission of Drake International that the attendance notice should be stayed until such time as the parties have filed their respective statement of facts and contentions in the substantive proceedings. In this regard the submission was that (T1-7):
… we are not at the stage of this proceeding where, with any degree of particularity, we can identify any fact that could be in issue. Now, we, as advocates, and the Commission could presume that certain matters may be in contention going forward at the hearing de novo, however, it is equally possible that some of those matters will be conceded by the respondent. For example, it could be a matter in issue whether or not Ms Mullins was a worker, however, equally, that could well be conceded. Therefore, it will not be something that could be subject to a non-party production notice.
At this stage, the compelling qualities of the notice must be tempered by the words of the regulation themselves and mere supposition about the nature of the regulator’s claim or their action in this place for the substantive appeal – not – should not be subject of supposition when all the parties need to do is stay the production of these documents, pending the actual pleadings in this matter or, for want of a better term, pleadings in this matter.
- Drake also submitted that these propositions were consistent with the common law position in that the issuer of the notice must establish that disclosure will achieve a legitimate forensic purpose. The submission was that the forensic purpose of the documents sought to be produced cannot be obtained, and the legitimacy of that forensic purpose cannot be defined, in the absence of the statements of facts and contentions, for the reason that Drake and the Commission are "simply in the dark about what will be in contention when this matter goes to appeal".
- Ms Mullins opposed any stay of the proceedings pending the lodgement of statements of facts and contentions. The effect of Ms Mullins' position was that she should have access to all relevant material before the statement of facts and contentions were resolved. If all the relevant material were not available, then it was an inevitable consequence that the statement of facts and contentions "would continually have to be amended". This would represent "a very ungainly way of proceeding" with the matter. The submission was developed in the following terms (T1-13):
What I’m trying to do is indicate why we require the disclosure now to be able to draw up a properly drawn-up case, a facts and contentions, to allow the matter to proceed in a reasonable way, in a short-form way, without having to continually change our case as matters come to light after we’ve drawn our facts and contentions. And it’s my submission that the scheme of the legislation encourages that prospect. It encourages that because of the non-party disclosure, because Drake is a non-party, it is – that Mullins herself does not have the information at her hands, it is not a normal pleadings where in that matter they would have a cause of action pleading that cause of action. This is a matter of – under the scheme of the legislation and not otherwise.
- The notice to produce identified twenty categories of documents sought to be disclosed. Drake's response to the notice includes objections to all of the categories, except one, on the ground of relevance. Drake submitted that it should not be required to produce these categories of documents because such documents are not relevant to matters in issue in the proceedings.
- Rule 59 allows Drake to apply to set aside the notice on "any sufficient grounds" including that the documents sought to be produced are "not relevant to the proceedings".
- Rule 60(3) provides that it is for the Commission to decide whether a document produced by the non-party could be inspected by a party, while r 60(3) provides that the Commission can consider whether a document produced does not relate to a matter in issue. A matter for consideration in this proceeding may be how the Commission might exercise its discretion to give the parties access to any documents produced, and how the Commission might determine which documents do not relate to a matter in issue.
- In the hearing of the application to set aside the notice, Drake submitted that the test for relevance was settled by the High Court in Goldsmith, and was best explained in the judgment of McHugh J:
… 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.
- It was Drake's submission that the exercise of the Commission's discretion in determining the application to set aside the notice will be substantially influenced by the circumstances in the proceedings and requires an assessment of the dispute as a whole, the facts in issue, and the relative weight of the proposed disclosure documents. The following approach was advocated:
Firstly, having regard to the facts in issues and dispute. This is a process of considering filed material, and the scope of the dispute as defined by the parties in the proceeding;
Secondly, have regard to the relevance of the categories of documents sought. The Commission considers whether the documents could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding;
Thirdly, consider whether any ground of objection is enlivened. For this step, consideration should be given to the substance of the document categories, and whether the document or category is a contravention of the statutory or general law grounds for objection;
Fourthly, the Commission determines, in the exercise of its discretion, whether the disclosure order is consistent with the intent of Rules and the Act.
- Drake submitted that it was entitled to know the evidential value of the categories of documents sought to be produced. It rejected any proposition articulated by Ms Mullins to the effect that relevance need not be present on the face of the notice to produce because it was said that such an approach would nullify the requirement in the rules to ensure only relevant documents needed to be produced.
- The substantive appeal is a hearing de novo. It involves a fresh trial of the applicant's claim for compensation. Consideration is not restricted to matters considered by either the insurer or the regulator in assessing the claim. Neither the decision of WorkCover nor the decision of the Regulator is subject to review.
- The onus is on Ms Mullins to prove that she has sustained an injury pursuant to s 32 of the Workers' Compensation and Rehabilitation Act 2003. Subject to any concessions made by the regulator prior to the start of the trial, the appellant must establish that she is a worker, that she has sustained a personal injury, that the injury meets the test of association with the employment, and that the injury was caused by unreasonable management action.
- It follows, that, inter alia, the appellant must identify the management action which she says is the cause of her injury. The central consideration at trial will be whether the management actions or omissions identified are to be found to be unreasonable. The matters in issue must relate to these considerations. It follows that, until Ms Mullins' case is disclosed, determinations about relevance in these interlocutory proceedings cannot reliably be made.
- I accept that, in this instance, it is a factor that the non-party was Ms Mullins' employer at the relevant times, and that Ms Mullins has alleged that her injury was caused by unreasonable management action on the part of Drake management. In these circumstances, it may be logical to assume that Drake would have a good level of familiarity with the facts and circumstances likely to be in contention during the substantive proceedings.
- But, as Drake has submitted, a level of familiarity in itself is insufficient in addressing the test of relevance and in meeting the standard required of the rules. Particularly in circumstances where the substantive proceedings are to be conducted as a hearing de novo, a non-party cannot fairly be expected to make assessments about relevance prior to the release of the parties' statements of facts and contentions and prior to matters in issue being particularised.
- The notice should be stayed pending the exchange of statements of facts and contentions between the parties to the substantive proceedings.
- The following orders are issued:
- (a)Ms Mullins' Attendance Notice to Produce dated 15 March 2019 is stayed pending the filing of statements of facts and contentions by the parties to the substantive proceedings;
- (b)Directions will issue in the substantive proceedings providing for the appellant to file her statement of facts and contentions on or before 21 May 2019 and for the respondent's statement of facts and contentions to be filed on or before 4 June 2019;
- (c)The parties should confer after 4 June 2019 for the purpose of endeavouring to resolve differences around the categories of documents sought to be produced;
- (d)That should agreement between the parties not eventuate, these proceedings will resume on 24 June 2019 at 10.30 am for the purpose of the hearing and determination of any objections to Ms Mullins' request for disclosure.
 Kelsey v Logan City Council & Ors  QIRC 108
- Published Case Name:
Mullins v Workers' Compensation Regulator; Ex parte Drake International Pty Ltd
- Shortened Case Name:
Mullins v Workers' Compensation Regulator; Ex parte Drake International Pty Ltd
 QIRC 65
Member Black IC
07 May 2019