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Mullins v Workers' Compensation Regulator; Ex parte Drake International Pty Ltd (No 2) QIRC 3
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Mullins v Workers' Compensation Regulator; Ex parte Drake International Pty Ltd (No 2)  QIRC 003
Drake International Pty Ltd
Workers' Compensation Regulator
Objection to Attendance Notice to Produce
14 January 2020
17 April 2019
8 August 2019
5 November 2019
Industrial Commissioner Black
INDUSTRIAL LAW – OBJECTIONS TO ATTENDANCE NOTICE TO PRODUCE – NON PARTY DISCLOSURE - objections to notice brought on various grounds – consent order issued – non-compliance with consent order subsequently alleged – dispute over the production of redacted documents, turnover data and a whistleblower complaint – confidentiality and direct relevance at issue.
Workers' Compensation and Rehabilitation Act 2003 s 32
Industrial Relations (Tribunals) Rules 2011, subdivisions 7 and 7A
Central Queensland Mining Supplies Pty Ltd v Columbia Steel Casting Co Ltd  QSC 183
Deanne Maree King v Workers' Compensation Regulator  QIRC 134
Fried v National Australia Bank (2000) 175 ALR 194
Goldsmith v Sandilands (2002) 190 ALR 370
Hoch v The Queen (1988) 165 CLR 292
Jacara Pty Ltd v Perpetual Trustees WA Ltd  FCA 1886
Mercantile Mutual Custodians Pty Ltd v Village/Nine Network Restaurants and Bars Pty Ltd  1 Qd R 276
Shaw v Yaranova  VSCA 55, 26.
Xstrata Queensland Ltd v Santos Ltd & Ors; Santos Ltd & Ors v Xstrata Queensland Ltd  QSC 323 (7 November 2005)
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.
Notice to produce
- 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. The notice identified twenty categories of documents sought to be disclosed. Drake has objected to the notice.
- In a decision dated 9 May 2019, the determination of Drake's objection was delayed pending the filing in the substantive proceedings of the appellant's statement of facts and contentions. Following the lodgement of the statement and facts and contentions, the parties were asked to confer to try to reach agreement on the type or categories of documents to be produced in response to the appellant's notice.
- When the parties were unable to reach agreement, a hearing was scheduled for 8 August 2019 to resolve Drake's objections to the notice to produce. While Drake initially objected to the notice to produce in its entirely, it modified its position in the 8 August 2019 proceedings, as did the appellant.
- At the commencement of proceedings on 8 August 2019, the appellant was granted leave to amend the notice and to restrict the documents or things sought to be disclosed to the following:
- Any document relied upon by the author and/or drafter of the letter of termination of Mark Claridge dated 26 July 2018;
- Any witness statement in the possession of Drake International relating to the events particularised in paragraphs  to  of the Appellants Contentions (dated 21 May 2019);
- Any email correspondence, other document or thing, which meets both of the following criteria:
- Sent between any (or all) of the following persons:
i. Mark Claridge;
ii. Leanne Lazarus;
iii. Danella Williams;
iv. Leanne O'Meara; and
v. Sharmayne Mullins; and
- The email correspondence, other document or thing that relates to the events particularised in paragraphs  to  of the Appellants Contentions (dated 21 May 2019).
- Ultimately the parties were able to resolve all their differences and a consent order was issued on 16 August 2019.
- The consent order dated 16 August 2019 required Drake to produce to the appellant inter alia:
Any document relied upon by the author and/or drafter of the letter of termination of Mark Claridge dated 26 July 2018 which relate, directly or indirectly, to the Appellant.
- The consent order provided that if Drake objected to the production of any document identified in the order, Drake was required to provide the appellant with the following information in relation to the document the subject of an objection:
- The date of the document
- A brief description of the document; and
- The ground or basis of the objection
- In correspondence to the appellant dated 13 September 2019, Drake identified the documents which it said fell within the scope of the consent order and informed the appellant of its objections to production which were to the following effect:
- An objection to the provision of an unredacted version of a document which recorded details of complaints made against Mr Claridge and which was headed "Persons Who Have Made Complaints Against Mark Claridge";
- An objection to the provision of an anonymous whistleblower complaint made against Mr Claridge on 24 July 2018;
- An objection to the provision of turnover numbers for the Drake Sherwood Branch.
- In its 13 September 2019 correspondence, Drake said that it objected to the production of the whistleblower complaint for the reason that it was a confidential document pursuant to s 64E of the Industrial Relations (Tribunals) Rules 2011 (the Rules). The production of turnover data was objected to on the basis of confidentiality and because of a lack of relevance within the meaning of s 64E(4)(b) of the Rules. The redaction of part of the complaints document was justified on similar grounds.
Hearing of Drake's objections
- Drake's objections were listed for hearing on 5 November 2019. At the commencement of proceedings, the appellant advised that an additional issue required resolution which involved an allegation that Drake had not complied with the consent order in that certain emails had not been disclosed.
- The non-compliance issue and disagreements around the provision of the whistle blower complaint were resolved in the proceedings. In terms of the non-compliance matter, Drake agreed to provide an affidavit to the effect that all relevant emails had been reviewed, explaining the basis upon which emails had been identified for disclosure, and swearing that full disclosure has occurred. This affidavit was subsequently sworn on 21 November 2019 and was filed in the Commission on 22 November 2019.
Matters in issue
- It is the appellant's case that her injury was caused by unreasonable management conduct engaged in by Mr Claridge, Ms Lazarus and Drake's human resources staff. Mr Claridge's conduct was said to be unreasonable because he had variously yelled and screamed at the appellant, demeaned and belittled the appellant's performance, verbally abused the appellant and generally engaged in behaviour which was inconsistent with Drake's bullying and harassment policy.
- In the respondent's statement of facts and contentions, the respondent disputed the veracity of the appellant's claims that she had been unfairly treated by Mr Claridge and claimed that Mr Claridge was exercising his right and obligation to ensure that the appellant performed her work to the required standard. The respondent contended that any interactions between the appellant and Mr Claridge involved the exercise by Mr Claridge of reasonable management action in circumstances where the appellant's performance was deficient.
Analysis of document
- Drake supplied a redacted version of the complaints document preventing the appellant's access to information which Drake considered confidential or not relevant to a matter in issue in the proceedings. In its unredacted form, the document recorded the following information relating to complaints made by employees against Mr Claridge:
- The name of the complainant;
- The role of the employee;
- The name of the branch or office that the employee worked at;
- Whether the employee reported to Mr Claridge;
- The employee's starting and finishing date;
- Whether the employee participated in an exit interview and, if so, some information about what the departing employee said. This section was also used to include information about complaints about Mr Claridge that had been reported through other channels;
- Net sales and net revenue data;
- Whether the employee's separation from Drake was voluntary or involuntary (there were no involuntary separations).
- In the complaints document, Drake had redacted all entries recording:
- The name of the employee;
- The employee's starting and finishing date;
- Net sales and net revenue data.
- The appellant did not object to the redaction of the net sales and net revenue data, but sought access to the names and start and finish dates of employees.
- The document presents as a spreadsheet and I presume that information was entered into the spreadsheet on each occasion that an employee left the organisation. Drake said that the spreadsheet was the only document that Drake kept as a record of exit interview and that it was not "a derivative document from other sources". Exit interviews however were not the only source of complaints, and some entries were drawn from other complaint channels.
- The spreadsheet identified seventeen employees who had intimated some dissatisfaction with Mr Claridge. Most, and perhaps all, of the complainants had resigned from their employment with Drake. The source of information varied from individual to individual. Five employees participated in exit interviews and communicated their views about Mr Claridge in this process. Two employees, including the appellant, had lodged WorkCover claims in which allegations of bullying had been made against Mr Claridge. Three employees declined to participate in an exit interview but nevertheless communicated dissatisfaction with Mr Claridge. One of these employees had made a formal complaint against Mr Claridge. Of the remaining employees, two employees had said in a witness statement that they considered Mr Claridge to be a bully while it is not known how the other employees had communicated their views to Drake management.
- On its face, the spreadsheet provides the barest of details about the complaints made. The spreadsheet discloses few if any particulars of the complaints other than an allegation of inappropriate conduct by Mr Claridge. It appears that dissatisfaction with Mr Claridge was a factor in the decision of some complainants' to leave Drake's employment.
- Because of the absence of particulars, it is not known in most cases if complainants were complaining about how they were treated by Mr Claridge or complaining about Mr Claridge's treatment of co-workers. In some instances, the entry simply states that the complainant considered Mr Claridge to be a bully, in other instances, including a reference to the appellant, the entries in the spreadsheet make clear that the complainant was being bullied by Mr Claridge. In another instance, a complainant referred to the distressed state of staff who were working with Mr Claridge. It cannot be concluded on the face of the spreadsheet that complainants were only drawing attention to their own interactions with Mr Claridge.
- In these circumstances, the information captured in the spreadsheet does not allow the appellant to anticipate with any confidence what it is that a complainant may say if called to give evidence. If a complete understanding of the complainant's position were to be obtained, it would be necessary for the appellant to conduct interviews.
- Drake's decision to redact dates of commencing and finishing employment was unhelpful and does not assist the task of determining relevance. As a consequence of the redactions, it is not known over what period of time the alleged misconduct occurred and it is not known whether all the complaints coincided with the appellant's time as a Drake employee. It is not known whether the complaints occurred sporadically over a long period of time or whether they were concentrated into a relatively short period. Finally, it is not known if the conduct complained about occurred before or after the appellant was transferred to the Sherwood Branch office.
- Rule 64B empowers the appellant to seek the production from a non-party of a document which is directly relevant to a matter in issue in the proceedings. Rule 64E provides that the non-party may object to the production of documents for a range of reasons including "the lack of relevance to the proceeding" of a document sought to be produced.
- While Drake asserted that the test under the Rules was whether a document sought to be produced was directly relevant to a matter in issue in the proceedings (Rule 64B), the appellant noted some inconsistency in the expression of the Rules in that under Rule 64E, the reasons for objection to a notice to produce only alluded to "relevance", not to "direct relevance".
- It seems to me that if the appellant is precluded from accessing a document under Rule 64B, an objector is entitled to press an objection to production on the same basis. That is, Rule 64B is clear in preventing the appellant's access to documents that are not directly relevant. The expression of Rule 64E cannot be relied on to dilute this requirement.
- The basic issue for determination is whether the information that is contained in the spreadsheet that is in dispute is directly relevant to a matter in issue in the substantive proceedings.
- In Xstrata Queensland Ltd v Santos Ltd & Ors, McMurdo J was asked to consider the distinction between the test of relevance under the general law and the requirement of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) which is that only directly relevant documents must be disclosed. In this respect, McMurdo J said that "a document is directly relevant in this sense only if it tends to prove or disprove an allegation in issue in the proceedings."
- A more detailed discussion of the "direct relevance" test was provided by Applegarth J in Central Queensland Mining Supplies Pty Ltd v Columbia Steel Casting Co Ltd:
 The present kind of dispute over disclosure is common in litigation. Disputes of this kind may arise because the parties have genuine and reasonable differences of opinion about the issues that are truly in dispute. However, even when the real issues in dispute are agreed, views may legitimately differ about the types of documents that are "directly relevant" to an allegation in issue on the pleadings. The direct relevance test under the Rules was intended to narrow the duty of disclosure. It is not sufficient that the document directly or indirectly allows a party to advance its case or damage the case of its opponent. The term "directly relevant" has been defined to mean "something which tends to prove or disprove the allegation in issue". Even with the aid of judicial interpretation of the term “directly relevant”, there often remains scope for legitimate argument about whether a particular document or category of document tends to prove or disprove an allegation and is therefore directly relevant. (citations omitted)
- The question is whether Drake should be required to produce the spreadsheet in an unredacted form. More particularly, should the names and employment dates of complainants be disclosed.
- Drake surmised, correctly in my view, that the appellant sought disclosure of employees' names for the purpose of interviewing the employees, making further enquiries of the employees in relation to matters of interest, and in calling employees to give evidence in the substantive proceedings.
- The appellant said that the following considerations made clear the relevance of the spreadsheet to matters in issue in the substantive proceedings:
- The spreadsheet was relied on by Drake to terminate Mr Claridge's employment for bullying subordinates including the appellant;
- The record of complaints demonstrates the probability that Mr Claridge bullied and unreasonably treated subordinates;
- The spreadsheet demonstrates a failure by Drake to take timely action in response to complaints about Mr Claridge's conduct and behaviour.
- The effect of Drake's submission was that the production of the spreadsheet could not satisfy the test of direct relevance required by the Rules. In so submitting, Drake relied on a number of arguments:
- Drake did not accept that the termination of Mr Claridge was directly relevant to a matter in issue;
- Drake did not accept that the spreadsheet held any probative value;
- Drake did not accept that the direct relevance test could be satisfied by reliance on propensity or similar fact evidence.
- The appellant considered that the termination of Mr Claridge's employment was relevant to a matter in issue because of the reasons given for Mr Claridge's termination, which at least in part, mirrored the appellant's complaints about Mr Claridge. As Drake put it, the appellant was trying to draw a connection between the reasons for Mr Claridge's dismissal and the propensity of Mr Claridge to act in a particular manner.
- The reasons for termination were canvassed in the letter which formally informed Mr Claridge that his services had been terminated. The letter stated inter alia:
- That Drake had serious concerns about Mr Claridge's behaviour in the workplace and the effect of his behaviour on other and less senior employees;
- That Mr Claridge's behaviour was wilful and deliberate and inconsistent with Drake's bullying and harassment policy;
- That Mr Claridge's conduct was causing serious and imminent risk to the health and safety of persons;
- That Drake considered that there was a substantial chance of Mr Claridge re-offending.
- While Drake agreed that information elicited from exit interviews was relied on in its decision to terminate Mr Claridge's employment, it submitted that the termination event could not be considered directly relevant to a matter in issue in the substantive proceedings.
- In my view, while the decision to terminate Mr Claridge's employment is not management action in issue in the proceedings, the reasons relied on by Drake in so deciding are relevant to a consideration of whether the reasons demonstrated a propensity on Mr Claridge's part to conduct himself in the same or similar way in his interactions with the appellant.
- More directly, given that Drake at the time of termination, or before the termination, had cognisance of the appellant's complaints about Mr Claridge, it may be open to conclude on the available evidence (letter of termination), that the reasons for Drake's decision to terminate Mr Claridge's employment included his conduct toward the appellant. In either event, the letter of termination is evidence that Drake, presumably after reasonable investigation, had concluded that Mr Claridge's treatment of subordinates was unacceptable and was not consistent with Drake's bullying and harassment policy.
Probative value of spreadsheet
- Drake took the view that the identification of the former employees should be seen as a collateral issue which did not impact on the assessment of the appellant's appeal. Drake did not believe that the opinions of former employees about Mr Claridge could be directly relevant to a determination about whether the appellant was bullied or otherwise unreasonably treated by Mr Claridge. As Drake saw it, the complaints of employees, other than the appellant, about Mr Claridge were too remote to the matters in issue. Drake's submission was that the "chain of reasoning linking the names of the individuals to the matters in dispute" was too long.
- It followed in Drake's view that the employee names and employment dates had no probative value in that the information could not be determinative of any of the matters in issue. Drake relied on the judgment in Shaw v Yaranova in submitting that the disclosure of the names of complainants would not serve any legitimate forensic purpose and that the information sought to be produced must be grounded in something more than speculation:
There will be no legitimate forensic purpose if, 'all the party is doing is trying to get hold of the documents to see whether they may assist him in his case'.
- Drake also characterised the appellant's request for the names of complainants as a fishing expedition and relied on the reasoning of Weinberg J in Fried v National Australia Bank in submitting that it was not permissible to use a notice to produce to "fish" for evidence:
It is not appropriate, in my view, for a Court to permit a subpoena to stand which does little more than trawl for documents which may be used to impugn the credit of a particular witness. This is particularly so when the documents sought have nothing to do with any of the issues in dispute in the proceeding. The Court must be alert to ensure that any subpoena which is issued has a legitimate forensic purpose. That purpose must be identifiable, and likely to facilitate the conduct of the proceeding, not merely to oppress a party or witness.
- I do not share Drake's view that the appellant's request for information should be considered to be a fishing expedition in that the appellant is trying to get hold of information to try to see whether the information may assist. The appellant does not, in my view, proceed on speculative grounds.
- It is the case that, because of the scarcity of information in the spreadsheet, the appellant is not fully informed of the reasons which underpinned the complainant's opinions. But sufficient is disclosed to know that the complaints include reference to bullying type behaviour engaged in by Mr Claridge, a characterisation of the complaints accepted by Drake. In the circumstances the appellant is entitled to conclude that interviews of complainants would assist her case either in the prosecution of similar fact or propensity evidence or in evidence where complainants have direct knowledge of Mr Claridge's treatment of the appellant.
- Other factors add to the probative value of the spreadsheet content. Firstly, the spreadsheet is not evidence of isolated or occasional expressions of disgruntlement of a few employees. On its face, it is evidence that at least seventeen former or current employees of Drake expressed concern to management about Mr Claridge's conduct and behaviour. Some were sufficiently distressed by the behaviour that it contributed to or caused a decision to leave the organisation.
- Secondly, the probative value of the spreadsheet is confirmed by the subsequent decision of Drake to rely on the complainants' version of events in deciding to terminate Mr Claridge's employment. Drake must have satisfied itself of the reliability of most if not all of the opinions. It would seem unlikely that Drake would have relied on the opinions to support their decision to terminate Mr Claridge's employment if they had not conducted some form of investigation, informal or formal, documented or undocumented, which had concluded that what they were being told about Mr Claridge's conduct was true and correct.
Similar fact evidence
- Tendency evidence is prima facie relevant because a matter in issue in the substantive proceedings is whether Mr Claridge bullied, or otherwise mistreated the appellant. While the complaints included in the spreadsheet are lacking particulars, it is understood that the complainants make allegations of similar misconduct. The complaints are relied on by the appellant to establish a tendency on Mr Claridge's part to engage in unreasonable management conduct.
- Drake however did not accept that the "direct relevance" test could be satisfied by a reliance on similar fact evidence. The general law relevant to a consideration of tendency evidence was summarised by the Full Court of the Federal Court in Jacara Pty Ltd v Perpetual Trustees WA Ltd: (Jacara)
In Hoch v The Queen, the joint judgment observed that, on the assumption that similar fact evidence is relevant to some issue on the trial, “the criterion of admissibility is the strength of its probative force”: at 294, per Mason CJ, Wilson and Gaudron JJ. In that connection, the judgment noted, in a well-known comment (at 294-295), that
“that strength lies in the fact that the evidence reveals ‘striking similarities’, ‘unusual features’, ‘underlying unity’, ‘system’ or ‘pattern’ such that it raises, as a matter of common sense and experience, the objective improbability of some event having occurred other than as alleged by the prosecution”.
Compare Pfennig v The Queen (1995) 182 CLR 461, at 482, per Mason CJ, Deane and Dawson JJ, holding that Hoch v The Queen is not to be understood as asserting that “striking similarities” or the other characteristics mentioned are essential prerequisites to admissibility in every case.
The admissibility of similar fact evidence in civil cases developed by analogy with the criminal law. However, the tide turned in Mood Music Publishing Co Ltd v De Wolfe Ltd  Ch 119, where Lord Denning MR said this (at 127):
“In civil cases the courts have followed a similar line but have not been so chary of admitting it. In civil cases the courts will admit evidence of similar facts if it is logically probative, that is, if it is logically relevant in determining the matter which is in issue: provided that it is not oppressive or unfair to the other side: and also that the other side has fair notice of it and is able to deal with it.”
Some later authorities adopted the view that the admissibility of similar fact evidence in civil cases depended simply on its relevance to the fact in issue: Mister Figgins Pty Ltd v Centrepoint Freeholds Pty Ltd (1981) 36 ALR 23, at 28, per Northrop J; Gates v City Mutual Life Assurance Society Ltd (1982) 68 FLR 74, at 88, per Ellicott J; cf Aroutsidis v Illawara Nominees Pty Ltd (1990) 50 FCR 500, at 508-509, per Hill J; D F Lyons Pty Ltd v Commonwealth Bank, at 603-607, per Gummow J.
In Sheldon v Sun Alliance Australia Ltd (1989) 53 SASR 97 (FC), Bollen J, with whom Prior J agreed, in the course of a careful review of the authorities, expressed the view (at 145) that the safeguards required in criminal proceedings are not required in civil proceedings. He concluded, accordingly, that evidence of “similar facts” in civil cases should be admitted “where it is logically probative of a fact in issue”. Sheldon has subsequently been applied in South Australia: Grivas v Brooks (1997) 69 SASR 532 (FC).
- In terms of what was required for evidence to be assessed as having a probative value, the Full Court said:
The probative value of the evidence as tendency evidence must depend on the circumstances of the case. The factors to take into account will usually include the cogency of the evidence relating to the conduct of the relevant person, the strength of the inference that can be drawn from that evidence as to the tendency of the person to act in a particular way and the extent to which that tendency increases the likelihood that the fact in issue occurred: cf J D Heydon, Cross on Evidence (6th Aust ed, 2000) at pars , , .
- The principles canvassed in Jacara were succinctly summarised by O'Connor VP in King v Workers' Compensation Regulator where his Honour stated:
 As a matter of general principle, if the similar fact evidence is logically probative, that is, relevant to proving a matter in issue, provided that it is not unfair or oppressive and the other side has had notice, it will be admissible.
 As was observed by Martin J in St Clair v Timtalla Pty Ltd & Anor, with respect to the admissibility of similar fact evidence, the modern cases support the view that the essential criterion for admissibility is relevance.
- On the authorities, the principal considerations in determining admissibility are the relevance of the information sought to be disclosed to a matter in issue in the substantive proceedings, and the probative value of that information. Given the requirement of the Rules that the information be directly relevant to a matter in issue, the test is whether the information in question tends to prove or disprove a matter in issue.
- Drake said that the question to be answered in determining the admissibility of similar fact evidence was whether the conduct or behaviour of Mr Claridge identified in the spreadsheet was so strikingly similar to the conduct alleged by the appellant that it becomes more likely that Mr Claridge conducted himself in the manner alleged.
- On Drake's submission, this was a stringent test which could not be satisfied on the relevant facts and circumstances. In the first instance Drake said that the spreadsheet was so lacking in particulars that it did not allow sufficient information to be disclosed to enable an adequate comparison to be made with the conduct alleged by the appellant. It followed that the conduct sought to be compared was not capable of a conclusion that it was strikingly similar.
- In the alternative, Drake said that if similarities could be discerned, the proposed similarities were not substantial enough to satisfy the legal standard. In this regard, Drake submitted that, at the highest, the following alleged similarities may be able to be discerned from the spreadsheet:
- Mr Claridge was an employee of Drake who came into contact with other staff, and was employed at the same time as the appellant;
- Employees voluntarily leaving Drake's employment perceived Mr Claridge in an adverse manner, a perception consistent with the view of the appellant;
- Other employees of Drake described Mr Claridge's conduct as bullying.
- I do not accept that these propositions constitute an accurate representation of the relevant facts and circumstances. Firstly, Mr Claridge is not a co-worker of the complainants and is an Area Manager for Drake. It is likely that most of the complainants were subordinates of Mr Claridge.
- Secondly, it is wrong to characterise the complaints as merely the perceptions of disgruntled employees leaving the organisation. It is a significant contradiction for Drake to advance the proposition when it had itself accepted that Mr Claridge's behaviour was inconsistent with Drake's bullying and harassment policy.
- Thirdly, the complaints of bullying should not be regarded as unsubstantiated allegations given Drake's conclusion that its bullying and harassment policy had been breached.
- Finally, while the spreadsheet predominantly records individual complaints or opinions about Mr Claridge, in one instance the complaint involves an allegation about the distress caused to other staff by Mr Claridge. The information contained in the spreadsheet therefore may include the opinion of a person who has direct knowledge of how Mr Claridge treated subordinates or workers at the Sherwood Branch.
- In Hoch v The Queen, the High Court said that the strength of the probative force of similar fact evidence lies in the fact that the evidence reveals particular characteristics including "striking similarities", "underlying unity", and "pattern" with the evidence in issue in the proceedings. In my view the information in the spreadsheet meets this test. The spreadsheet discloses a pattern of behaviour in which there is a high level of uniformity with the behaviour complained about by the appellant. The uniformity extends to the type of behaviour complained about, the setting for the behaviour which is the workplace, and the context for the behaviour which is the interaction between a manager and his subordinates.
- Drake distinguished between "similar fact" evidence and "similar fact evidence via propensity". The distinction was discussed in Jacara which refenced an essay on similar fact evidence in criminal cases. The essay included definitions of various types of similar fact evidence including the following:
"Similar fact evidence which is relevant via propensity" is such evidence where the tendency of the similar fact evidence to establish a propensity in the accused is a link in the process of "tending to show that the accused did in fact behave on the instant occasion in the way in which the prosecution alleges."
- After discussing the definitions, the Full Court stated:
The terminology used by Cowen and Carter in their essay has not been universally adopted. But the definitions help make the point that similar fact evidence (as that term is defined in the essay) is ordinarily relevant to a fact in issue in the proceedings because it tends to establish a propensity in the relevant person and because that propensity is a link in the process of tending to show that the person did in fact behave in the particular way alleged in the case.
- It was Drake's submission that as a precursor to the application of these principles, it was necessary to consider how the propensity evidence could inform the reasoning in the substantive proceedings. In this regard, Drake said that the lines of enquiry must include consideration of the nature of the previous acts, the reliability of the evidence, and the circumstances in which the conduct took place. The issue of specificity was also important particularly relative to whether the evidence about the previous acts were considered to be "general" or "non-specific".
- According to Drake, the opinions of complainants were of insufficient probative value and specificity to support an inference being drawn that Mr Claridge acted in a specific way in his dealings with the appellant or established that Mr Claridge was prone to act in that manner.
- Drake submitted that the nature of the complaints included in the spreadsheet were vague and non-specific in that conduct had not been particularised, no context to circumstances had been included and what was meant by the term "bullying" had not been defined. Further, if inferences were capable of being drawn from the opinions, the inferences had not been linked to the matters in issue.
- In my view the nature of the previous acts as disclosed in the spreadsheet as bullying type behaviour is consistent with the type of behaviour that the appellant complains about in her statement of facts and contentions. I do not accept the proposition that the nature of the complaints was vague and lacking specificity. Despite the lack of particulars in the spreadsheet, the nature of the complaint was consistently identified as bullying type behaviour on the part of Mr Claridge. The reliability of the evidence is confirmed by Drake's reliance on the evidence in the termination of Mr Claridge's employment. Given this reliance, it can be safely concluded that irrespective of the failure to include particulars in the spreadsheet, the complaints were considered sufficiently robust to justify a conclusion that Mr Claridge had breached Drake's bullying and harassment policy. Finally, in terms of the circumstances in which the conduct took place, all the conduct, both previous and alleged, was employment related conduct, and generally arose out of Mr Claridge's interactions with his subordinates.
- I do not agree that conduct inferred from the spreadsheet has not been linked to a matter in issue in the proceedings. A matter in issue in the proceedings and the central issue in the determination of the appeal is whether the appellant's injury was causally connected with unreasonable management action taken by Mr Claridge and other Drake managers or supervisors. To succeed, the appellant in the first instance must identify the management action in question and then prove that the management action was unreasonable.
- The admissibility of similar fact or propensity evidence sought to be adduced by the appellant, and what weight should be attached to such evidence, is ultimately a matter for the tribunal member presiding in the substantive proceedings. As such, it is not my task to make final determinations about these issues.
- On the material available to me, I am satisfied, on the balance of probabilities, that the spreadsheet content is relevant to a matter in issue in the substantive proceedings. The opinions recorded in the spreadsheet are relevant to a matter in issue in that they tend to prove or disprove claims made about the reasonableness or otherwise of Mr Claridge's conduct arising from his interactions with the appellant.
- In my view the relevant facts and circumstances justify the exercise of a discretion to allow the appellant access to the names of employees and their dates of employment. The appellant is entitled to interview the complainants about Mr Claridge's conduct and behaviour in the workplace and to make enquiries of departing employees about what knowledge they hold of the appellant's treatment by Mr Claridge.
- Drake objected to the production of "document No 2" (turnover data) on grounds of confidentiality and lack of relevance. The appellant said that the document was relevant for the following reasons:
- The document was relied on by Drake in determining to terminate Mr Claridge's employment;
- Drake's reliance on turnover data demonstrates that it associated turnover with Mr Claridge's bullying behaviour;
- A measure which discloses Mr Claridge's bullying conduct as a general proposition is probative of the fact that he acted in a similar bullying manner toward the appellant;
- The document demonstrates that Drake were aware of the Branch's high turnover and therefore Mr Claridge's bullying manner as far back as 2017. The data also indicates that Drake took no action to address the issue despite the continuing high rate of turnover;
- The contents of the complaints document which includes exit interviews over an undisclosed period of time supports the proposition that Mr Claridge's behaviour had not been addressed on a timely basis.
- The appellant submitted that the turnover statistics document was a factor in the decision to terminate Mr Claridge's employment and that "it demonstrated a bullying behaviour" by Mr Claridge toward employees of Drake.
- The appellant said in its submissions that a "turnover statistics document" was presented to Mr Claridge by Drake during his termination of employment interview. This submission appeared to have been based on the inclusion in Mr Claridge's letter of termination of a statement to the effect that the turnover rate for the Sherwood Branch was 100%.
- While not evidence, in its oral submissions Drake denied that Mr Claridge had been presented with a turnover document as part of the termination process:
MR RAWLINGS: Certainly. The only document provided to Mr Clarridge at the time of his termination was the letter of termination. So no other documents – no whistleblower complaints, no unredacted or redacted forms of any exit interviews – none of that was provided to Mr Clarridge; simply his letter of termination.
COMMISSIONER: All right. And that extends to the entire disciplinary process if it went beyond something more than a termination interview, I take it.
MR RAWLINGS: Yes, presented to him from the termination process from start to finish, simply the letter of termination.
- Drake submitted that it is not the intention of the Rules to allow a litigant to utilise a Non-Party Production Notice to conduct an investigation at large. Drake considered that the turnover data was not relevant to either a fact in issue nor could it be said that it could be used for a relevant attack upon credibility which might impact the assessment of a fact in issue.
- Drake also submitted that turnover data should not be produced because of the confidential nature of the data, which is commercially sensitive. The submission was to the effect that the release of information which could superficially be interpreted by a competitor to reflect staff dissatisfaction or difficulties with the retention of staff, could cause reputational damage in an industry where the relationship between staff and clients, client knowledge, and continuity were all important factors in service delivery.
- I prefer Drake's submission both in respect to the absence of any probative value and on the subject of confidentiality. In my view the introduction of turnover data in isolation serves a limited probative purpose. As a general proposition, there are too many variables associated with turnover data. Turnover in the industry may be notoriously high and nothing at all may turn on a high turnover figure; there are different ways of computing turnover data and the method of computation may make comparisons difficult; or the rate of turnover may be significantly influenced by the location of an office with some locations considered highly desirable and others unattractive.
- In these circumstances the introduction of turnover data would inevitably require a significant collateral investigation before inferences could be drawn and any valid understanding about causation arrived at. In my view, turnover data could not be said to be directly relevant to a determination about whether Mr Claridge had bullied or mistreated the appellant.
- In terms of the redactions, other than those dealing with net sales and net revenue data, I am satisfied that my discretion should be exercised in favour of the appellant and that Drake's objection to the notice to produce should be set aside. I sustain Drake's objection to the production of turnover data.
- The following Orders issue as a result of the decision:
- Drake is ordered to provide the appellant with an unredacted copy of the document headed "Persons Who Have Made Complaints Against Mark Claridge", except for that part of the document which includes net sales and net revenue data which shall remained redacted;
- Drake's objection to the production of turnover data is sustained and the appellant's notice to produce is set aside in this respect.
 Goldsmith v Sandilands (2002) 190 ALR 370.
 Ibid, 2.
 Xstrata Queensland Ltd v Santos Ltd & Ors; Santos Ltd & Ors v Xstrata Queensland Ltd  QSC 323.
 Mercantile Mutual Custodians Pty Ltd v Village/Nine Network Restaurants and Bars Pty Ltd  1 Qd R 276.
 Central Queensland Mining Supplies Pty Ltd v Columbia Steel Casting Co Ltd QSC 183.
 Shaw v Yaranova  VSCA 55.
 Ibid, 26.
 Fried v National Australia Bank (2000) 175 ALR 194.
 Ibid, 29.
 Jacara Pty Ltd v Perpetual Trustees WA Ltd  FCA 1886.
 Deanne Maree King v Workers' Compensation Regulator  QIRC 134.
 Hoch v The Queen (1988) 165 CLR 292.
 Z Cowen and P Carter, “The Admissibility of Evidence of Similar Facts: A Re-Examination”, in Essays on the Law of Evidence (1956), at 110.
- Published Case Name:
Mullins v Workers' Compensation Regulator; Ex parte Drake International Pty Ltd (No 2)
- Shortened Case Name:
Mullins v Workers' Compensation Regulator; Ex parte Drake International Pty Ltd (No 2)
 QIRC 3
Member Black IC
14 Jan 2020