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Shaw v State of Queensland (Department of Education)[2021] QIRC 127

Shaw v State of Queensland (Department of Education)[2021] QIRC 127

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Shaw v State of Queensland (Department of Education) [2021] QIRC 127

PARTIES:

Shaw, Trent

(Applicant)

v

State of Queensland (Department of Education)

(Respondent)

CASE NO:

WC/2020/58

PROCEEDING:

Application in existing proceedings to lift a stay on a Form 29 Notice of Non-Party Disclosure

DELIVERED ON:

14 April 2021

HEARING DATES:

On the papers

MEMBER:

McLennan IC

HEARD AT:

Brisbane

ORDERS:

  1. That the Application in existing proceedings filed by Mr Trent Shaw on 26 February 2021 is dismissed.
  1. That pursuant to r 64G of the Industrial Relations (Tribunals) Rules 2011 (Qld), the six Form 29 – Notices of non-party disclosure filed by Mr Trent Shaw on 25, 27, 28 and 29 January 2021 and 1 and 2 February 2021 are set aside.
  1. Each party is to bear their own costs.

CATCHWORDS:

INDUSTRIAL LAW – APPLICATION TO LIFT A STAY ON A FORM 29 NOTICE OF NON-PARTY DISCLOSURE – objections to produce documents – where direct relevance is considered – where confidentiality is considered – where application is made out of time - where notices are set aside

LEGISLATION:

Industrial Relations (Tribunals) Rules 2011 (Qld) r 64B, r 64E, r 64F, r 64G, r 64I

Privacy Act 1988 (Cth) s 14

CASES:

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298

Bunney v Workers’ Compensation Regulator [2020] QIRC 210

Deceased Estate of Barry James Willis v Workers' Compensation Regulator [2020] QIRC 077

DP World Brisbane Pty Ltd v Rogers & Anor [2014] ICQ 010

Grant v State of Queensland (Queensland Health) [2020] QIRC 228

House v The King (1936) 55 CLR 499

Mullins v Workers' Compensation Regulator; Ex parte Drake International Pty Ltd (No 2) [2020] QIRC 003

Robson v REB Engineering Pty Ltd [1997] 2 Qd R 102

Rubin v Bank of Queensland Ltd [2010] QSC 175

State of Queensland (Department of Health) v WorkCover Queensland [2020] QIRC 113

Susan Lloyd v State of Queensland (Department of Communities, Child Safety and Disability Services) [2015] QIRC 138

Tonia Shelley v McRoberts Agency [2009] 190 QGIG 189

Weston and Parer v State of Queensland (Department of Justice and Attorney-General) (No. 4) [2016] QIRC 75

Willis v Workers' Compensation Regulator [2020] QIRC 077

Reasons for Decision

  1. [1]
    On 25, 27, 28 and 29 January 2021 and 1 and 2 February 2021, Mr Trent Shaw ('the Applicant') filed six Form 29 Notices of Non-Party Disclosure with the Industrial Registry ('the Notices'). 
  1. [2]
    The Notices sought to compel the State of Queensland (Department of Education) ('the State', 'the Department') to produce various documents that Mr Shaw submitted he requires for the future substantive hearing of his Workers' Compensation Appeal filed 18 May 2020 ('the Appeal'). In the Appeal, Mr Shaw appeals against a decision of the Workers' Compensation Regulator to reject his application for compensation.
  1. [3]
    On 2 February 2021, the Department requested the Commission's leave to extend the time for raising any objection to the Notices until 8 February 2021 on the grounds that:
  1. service had not been effected in accordance with the Industrial Relations (Tribunals) Rules 2011 (Qld) ('the Rules'); and
  1. "having regard to the volume of Notices", the Department needed more time to consider its position given "the number and nature of the documents / categories of documents sought by Mr Shaw."
  1. [4]
    Leave to extend the time for raising any objection to the Notices was granted to the Department on 3 February 2021, on the terms sought.
  1. [5]
    On 8 February 2021, the Department advised Mr Shaw and the Industrial Registry that they objected to the "production of all documents mentioned in each of the six…Notices", pursuant to r 64E of the Rules. The filed material set out the reasons for the objection, as required ('the Objection'). 
  1. [6]
    That Objection stayed the operation of the Notices, by virtue of r 64F of the Rules.
  1. [7]
    On 26 February 2021, Mr Shaw filed an Application in Existing Proceedings (the 'Application') seeking that the Department be ordered to comply with the Notices.  That is, that the stay be lifted.
  1. [8]
    However, r 64G of the Rules prescribes that the party may apply to the industrial tribunal for a decision about the objection within 7 days after service of an objection.  This means Mr Shaw's Application was filed 'out of time'. 
  1. [9]
    Before the question of 'whether or not the stay on any or all of the Notices should be lifted, and if so on what terms?' may be answered, I am first required to address the superseding (and in this case determinative) jurisdictional issue of the Application being filed out of time.
  1. [10]
    For the reasons that follow, I have determined that:
  1. The Application was filed beyond the statutory time limit. 
  1. There are not compelling reasons to extend the time limit for the Application. 
  1. The six Notices are set aside.

Should the Application be heard out of time?

Background

  1. [11]
    On 8 February 2021, the Department advised Mr Shaw and the Industrial Registry that they objected to the production of all documents mentioned in each of the six Notices.  That objection was compliant with r 64E of the Rules. 
  1. [12]
    The effect of the Department's objection was that the operation of the Notices was stayed, by virtue of r 64F of the Rules.
  1. [13]
    On 26 February 2021, Mr Shaw made the Application to the Commission seeking a decision that the Department be ordered to comply with the Notices.  Rule 64G of the Rules prescribes the terms for making such an Application.  It is that Application that is the subject of this Decision. 

Considerations in the exercise of discretion

  1. [14]
    The question of whether to extend the prescribed time limit is fundamentally an exercise of discretion.   Such an exercise must be undertaken judicially and according to the rules of reason and justice, not arbitrarily or capriciously or according to private opinion.[1] 
  1. [15]
    The character of the delay, be it excessive, reasonable or otherwise, takes its colour from the surrounding circumstances.[2] It is true that in some cases delays of several weeks have been considered to be not excessive.[3] However, in such cases the delay is usually accompanied by a substantial explanation such as legal representative error, natural disasters or the like.[4] That is not the case here. 
  1. [16]
    As outlined below, several factors have informed the exercise of my discretion.  In this case, I have determined the delay of eleven days to be both significant and unreasonable.

Length of delay

  1. [17]
    The 7 day time limit has been determined by the legislature to be the appropriate period for a person to file an Application of this type. 
  1. [18]
    Rule 64G of the Rules prescribes the time limit to make an Application to have that stay lifted and the Notices enforced (emphasis added):

64GIndustrial tribunal's decision about objection

  1. (1)
    Within 7 days after service of an objection under rule 64E, the party may apply to the industrial tribunal for a decision about the objection.
  1. (2)
    The industrial tribunal may make any order it considers appropriate including, but not limited to, an order –
  1. (a)
    lifting the stay; or
  1. (b)
    varying the notice; or
  1. (c)
    setting aside the notice.
  1. (3)
    Unless the industrial tribunal otherwise orders, each party to an application to decide an objection must bear the party's own costs of the application.
  1. [19]
    This means that Mr Shaw was required to apply to the Commission for a decision about the objection by 15 February 2021, in order for the Application to have been made in time.
  1. [20]
    On 26 February 2021, Mr Shaw filed an Application seeking that the Department be ordered to comply with the Notices.  As explained at paragraph [18] above, r 64G of the Rules prescribes that the party may apply to the Industrial Tribunal for a decision about the objection within 7 days after service of an objection. 
  1. [21]
    Mr Shaw's Application was filed 11 days out of time.  That is not disputed.

Explanation for the delay

  1. [22]
    I am empowered to extend the time for allowing the Application only where there is a reasonable ground to do so. 
  1. [23]
    As I observed in State of Queensland (Department of Health) v WorkCover Queensland:[5]

The statutory timeframe of 7 days to object must be respected and should not be departed from without good reason.

  1. [24]
    Mr Shaw was afforded the opportunity to make submissions to explain the delay in filing his Application.  His reasons are summarised in the extract below and are further elaborated in paragraphs [25] – [36]:
  1. a.
    Limited procedural knowledge in applying to the industrial tribunal for a decision about the objection filed by the Respondent on 8 February 2021 in relation to all six Form 29 – Notice of Non-Party Disclosure dated 25, 27, 28 and 29 January 2021 and 1 and 2 February 2021.
  1. b.
    Attention to, and actions taken, in response to his unforeseen immediate change to employment status.
  1. c.
    Adherence to advice from the Industrial Registry Officer.
  1. d.
    Desire to avoid a disrespectful and unnecessary emotional transference when following-up with the Industrial Registry.[6]

Limited procedural knowledge

  1. [25]
    Mr Shaw submitted that neither r 64G of the Rules, the Workers Compensation Appeal Guide V2 nor the Form 29 – Notice of Non-Party Disclosure explained how to apply to have the stay lifted or identify the relevant form to do so. 
  1. [26]
    Mr Shaw stated that his earlier experience with a Form 29 – Notice of Non-Party Disclosure in this matter was that if an objection was made, the Member would contact the parties to schedule a Hearing.[7] 

Unforeseen immediate employment status change

  1. [27]
    Mr Shaw stated that he initiated discussions with the Department in relation to his employment status on 27 January 2021. 
  1. [28]
    He vacated his residence between 5 and 7 February 2021. 
  1. [29]
    On 10 February 2021, Mr Shaw explained that his efforts were directed to "research and subsequent application processes towards gaining an income with medical exemption"[8] in the current matter.
  1. [30]
    Mr Shaw submitted his Notice of Cease Employment with the Department on 18 February 2021.

Adhering to advice

  1. [31]
    In the Application filed on 26 February 2021, Mr Shaw said:

On Tuesday 9 February 2021 at 11:46 am, the Appellant contacted the Industrial Registry via telephone to gain clarification of how to challenge the DoE objection.  The Registry Officer advised the Appellant to wait for contact from the member.  With respect to the member's workload and scheduling, the Appellant 'waited' till Wednesday 24 February 2021 at 6:43 am, before requesting an update via email to the Industrial Registry.

  1. [32]
    Mr Shaw submitted that he telephoned the Industrial Registry on 9 February 2021 to "gain clarification of how to challenge the DofE objection served on 8 February 2021".[9]  "Acknowledging the Industrial Registry Officer was not able to provide legal advice", Mr Shaw briefly conveyed his own understanding and the "Industrial Registry Officer confirmed (he) should 'just wait to be contacted'."[10] 
  1. [33]
    Pursuant to r 64G of the Rules, Mr Shaw acknowledged the final date to apply to the Commission for a decision about the objection was 15 February 2021. 
  1. [34]
    Mr Shaw's Affidavit filed on 26 February 2021 attached an email exchange with the Industrial Registry on 24 February 2021.  In his initiating email, Mr Shaw asked "Are you able to provide an update on the Department of Education objection to NNPD lodged on Monday 8 February 2021?"  The Industrial Registry Officer's reply later that day[11] was as follows:

Dear Mr Shaw

Under the Industrial Relations (Tribunals) Rules 2011, an objection to a Notice of Non-Party Disclosure stays the operation of that Notice.  If you wish to have that stay lifted, and the Notice enforced, you are required to bring an application within 7 days under r 64G.

If you wish to make that application now, you should file a form 4 application in existing proceedings, setting out the orders you are seeking.  You should accompany that application with some submissions about why those orders should be made, and why your application should be heard out of time.  Chambers will then be in contact with some directions.

  1. [35]
    On 26 February 2021, Mr Shaw filed the Application. 

Avoiding emotional transference

  1. [36]
    Mr Shaw stated that he "ensured he did not transfer emotions from unrelated matters and circumstances on to the pending decision about the DoE objection".  He particularised these to be his response to the "immediate employment status change" in the period 27 January – 18 February 2021 and providing "support and assistance in funeral / memorial arrangements of a Kin Kin community member scheduled for 26 February 2021, upon the request from his wife."[12]

Prejudice to the Applicant

  1. [37]
    The prejudice Mr Shaw would suffer should the Application be dismissed is that he would lose the opportunity for a decision to be made to lift the stay on the Notices.  In the event that such a Decision were to find in Mr Shaw's favour, it would mean that he would gain access to that information he contends is relevant to the Appeal Hearing.
  1. [38]
    That potential outcome is of course not an insubstantial detriment.

Conduct of the Respondent

  1. [39]
    Mr Shaw does not contend that any actions of the Department caused or contributed to the delay in filing his Application. 

Prejudice to the Department

  1. [40]
    It is important to note that delay itself is considered to give rise to a general presumption of prejudice to the Respondent.[13] Furthermore, minimal additional prejudice to the Respondent in and of itself is an insufficient basis to grant an extension of time.[14]  
  1. [41]
    The prejudice the Respondent would suffer should the Application be heard out of time – and only in the event that the resultant Decision was to lift the stay on the six Notices – relates to the "expense and inconvenience likely to be incurred by the Respondent, a non-party, in complying with the six Notices".  The Department went on to list their remaining objections to the production of the documents sought on the following grounds: direct relevance to a matter in issue in the proceedings; lack of particularity with which the documents are described; and the confidential nature of some documents.

Reasoning

  1. [42]
    While Mr Shaw has submitted a variety of reasons for the delay in filing his Application, I find none to be so "acceptable and compelling"[15] as to warrant the dispensation of the statutory seven day time limit.
  1. [43]
    As such, I find that Mr Shaw has not offered adequate explanation or justification for the delay in making the Application.  My reasons follow.
  1. [44]
    Mr Shaw stated that he telephoned the Industrial Registry the day after the Department filed their objection[16] "to gain clarification of how to challenge the DoE objection".[17]  Mr Shaw submitted that he understood that the Industrial Registry does not provide legal advice and so briefly conveyed his own understanding.  Mr Shaw stated that he was advised "to wait for contact from the member."  I understand that Mr Shaw's evidence of that conversation occurring is the screen shot of a two minute call to the telephone number of the Industrial Registry that is attached to Mr Shaw's Affidavit filed 26 February 2021.
  1. [45]
    I note that the two separate actions of 'filing the Application in time' and 'waiting to be contacted' with directions from chambers are neither mutually exclusive nor inconsistent.  It is possible to do both. 
  1. [46]
    To be clear, a statement from the Industrial Registry to the effect that chambers will be in touch does not mean that the Rules need not be complied with.
  1. [47]
    Mr Shaw acknowledged the final date to apply to the Commission for a decision about the objection was 15 February 2021.  Mr Shaw does not claim that he was unaware of the time limit for applying to the Commission to have the stay on the Notices lifted. 
  1. [48]
    Taken at its highest - on Mr Shaw's own account of his brief telephone call to the Industrial Registry on the day after the Department's objection was filed - it was open to him to make contact with the Industrial Registry again before the expiry of the 15 February 2021 deadline to make a specific inquiry as to the mechanism to apply to have the Notices enforced. 
  1. [49]
    I accept Mr Shaw's submission that neither r 64G of the Rules, the Workers Compensation Appeal Guide V2 nor the Form 29 – Notice of Non-Party Disclosure identifies the relevant form to apply to have the stay lifted.  That inquiry may be made to the Industrial Registry and indeed Mr Shaw did so via email on 24 February 2021.  The evidence of the email exchange between Mr Shaw and the Industrial Registry on 24 February 2021 demonstrates a response to a procedural inquiry of that nature.  However, it is not the case that the process to do so is unclear – that is, that application may be made to the Commission for a decision about the objection.
  1. [50]
    Even so, Mr Shaw waited a further two days after that to file the Application – now 11 days after the expiration of the seven day time limit.
  1. [51]
    Mr Shaw stated that he understood from an earlier experience that if the objection was served, the Member would contact the parties to schedule a Hearing.[18]  The filed email correspondence with respect to this earlier Form 29 issue appears to indicate that issue was resolved by the Department's compliance with the Notice, as advised by Mr Shaw to the Associate on 4 December 2020. 
  1. [52]
    Foundationally, r 64G provides the power to make a decision about the objection at the point that the requesting party applies to the Commission to do so.  The Application is the trigger to address the objection.  In the absence of any Application, the Notice is simply stayed.  There is no need to take any further action unless the requesting party presses the point via the Application.
  1. [53]
    Mr Shaw has also submitted that the unforeseen immediate change to his employment status and associated matters, moving residence and providing support and assistance in funeral / memorial arrangements of a Kin Kin community member contributed to the filing of his Application out of time.  Given the deadline for filing the Application in time was 15 February 2021, any activity that occurred after that date cannot have contributed to filing out of time.  I understand the thrust of Mr Shaw's submissions is that the time taken to deal with these matters, and his focus on doing that, had taken precedence in the respective periods.  However, I am not persuaded that is a compelling reason to have the Application heard out of time.  On the basis of the chronology provided by Mr Shaw, there were available dates prior to the 15 February 2021 deadline that may have been claimed to attend to the filing of the Application.

The Notices

  1. [54]
    I have determined not to hear Mr Shaw's Application out of time.  However, even if I were to hear the Application, it would not succeed for these reasons.
  1. [55]
    The six Notices filed by Mr Shaw are all addressed to the Department and they all contain the same statement about why the documents sought are directly relevant (emphasis added):

The appeal is in relation to a claim for worker's compensation by Mr Trent Shaw for psychological injury.  The Appellant considers that records requested will assist preparation for the appeal in relation to whether Mr Shaw sustained an 'injury' within the meaning of section 32 of the Worker's Compensation and Rehabilitation Act (Qld) 2003.  In particular, the Appellant considers that records requested will provide documentary evidence for the Respondent's witnesses statements in relation to the department's concerns for the Appellant's role performance.

  1. [56]
    The documents sought in the six Notices are reproduced below.  The Department has objected to the production of all documents.
  1. [57]
    The First Notice's Schedule of documents sought is reproduced below:

No.

Date

Description

1

10/07/17 to 15/09/17

All Kin Kin State School (1534) 'External Request for Equipment EDQUIP EQ11 Forms' with Ms Janelle Reid as the requisitioner.

2

01/10/17 to 01/03/18

Kin Kin State School (1534) General Account Bank Statements

3

07/10/14 to 12/12/14

2014 Headline Indicator Report – Kin Kin SS (1534)

4

28/01/14 to 12/12/14

Kin Kin SS (1534) School Data Profile 2014 Semester 1 & 2014 Semester 2

5

10/07/17 to 21/08/18

Full copy of notes, memorandums, letters and other correspondence held by the Integrity and Employee Relations whether in written or electronic form in relation to the complaint received by the Integrity and Employee Relations on 08 August 2017 of Mr Shaw's alleged conduct.

6

10/07/17 to 21/08/18

Full copy of the Investigation Report prepared by Workplace Edge, held by the Integrity and Employee Relations whether in written or electronic form in relation to the complaint received by the Integrity and Employee Relations on 08 August 2017 of Mr Shaw's alleged conduct.

  1. [58]
    The Second Notice's Schedule of documents sought is reproduced below:

No.

Date

Description

1

01/07/14 to 23/06/17

Full copy of notes, memorandums, letters and other correspondence and documentation held by the School Improvement Unit whether in written or electronic form in relation to the Kin Kin State School (1534) Priority School Review.

  1. [59]
    The Third Notice's Schedule of documents sought is reproduced below:

No.

Date

Description

1

01/01/2010 to 01/01/2019

Full copy of all Kin Kin SS (1534) Triennial School Review Reports.

2

01/01/2010 to 01/01/2019

Full copy of all Kin Kin SS (1534) Quadrennial School Review Reports.

3

01/01/2010 to 01/01/2019

Full copy of all Kin Kin SS (1534) Final Interim Audit Reports.

4

01/01/2010 to 01/01/2019

Full copy of all Kin Kin SS (1534) Teaching and Learning Audit Reports

5

01/01/2010 to 01/01/2019

Full copy of all Kin Kin SS (1534) Discipline Audit Reports

6

01/01/2010 to 01/01/2014

Full copy of all Kin Kin SS (1534) School Data Profiles

7

01/01/2015 to 01/01/2019

Full copy of all Kin Kin SS (1534) School Data Profiles

8

01/01/2010 to 01/01/2014

Full copy of all Kin Kin SS (1534) Headline Indicator Reports

9

01/01/2015 to 01/01/2019

Full copy of all Kin Kin SS (1534) Headline Indicator Reports

10

01/01/2010 to 01/01/2019

Full copy of all Kin Kin SS (1534) School Opinion Survey School Reports

11

01/01/2010 to 01/01/2019

Full copy of lodged complaints or allegations held by Human Resources Branch in connection with Kin Kin SS (1534).

  1. [60]
    The Fourth Notice's Schedule of documents sought is reproduced below:

No.

Date

Description

1

10/07/2017 to 14/04/2019

Full copy of the financial transaction records held by North Coast Region in relation to the reimbursement to Kin Kin SS (1534) for extra Principal Administration Days during Term 3 2017.

  1. [61]
    The Fifth Notice's Schedule of documents sought is reproduced below:

No.

Date

Description

1

01/01/2018 to 01/09/2019

Full copy of notes, memorandums, letters and other correspondence and documentation held by the School Improvement Unit whether in written or electronic form in relation to the Kin Kin State School (1534) School Review 2019.

  1. [62]
    The Sixth Notice's Schedule of documents sought is reproduced below:

No.

Date

Description

1

01/01/2017 to 01/01/2019

Full copy of notes, memorandums, letters and other correspondence and documentation held by the School Improvement Unit whether in written or electronic form in relation to the Kin Kin State School (1534) IPS Status Review.

2

01/01/2017 to 01/01/2018

Full copy of notes, memorandums, letters and other correspondence and documentation held by the Office of the Director-General, Department of Education (DoE) whether in written or electronic form in relation to the implementation of the DoE Withdrawal from the IPS Initiative.

3

01/01/2017 to 01/01/2019

Full copy of notes, memorandums, letters and other correspondence and documentation held by the Office of the Director-General, Department of Education (DoE) whether in written or electronic form in relation to the Kin Kin State School (1534) IPS Status Review.

  1. [63]
    The parties filed submissions in accordance with Directions.
  1. [64]
    Mr Shaw stated that all the documents requested in the six Notices are:
  1. a)
    directly relevant to the witnesses' aforementioned knowledge and how they are an indicator of the management of the school.
  1. b)
    very particular to all investigations, reviews and audits conducted by the DoE during the Appellant's Principal tenure at Kin Kin State School (KKSS) and how they are an indicator of the management of the school before and after the witnesses' contact with KKSS and/or the Appellant.
  1. c)
    void of confidentiality to the Appellant because they document the formal and informal actions taken within investigations, reviews and audits that are utilised in establishing issues with the management of the school.
  1. d)
    void of sensitivity to the Appellant because he is bound by the 'Code of Conduct for Public Servants' during and after employment with DoE.[19]
  1. [65]
    Mr Shaw has further explained that:
  1. a)
    Dr Liam Smith and Ms Janelle Reid, as witnesses for the Workers' Compensation Regulator, will, as per the Respondent's Outline of Witness Evidence, provide evidence of their knowledge of investigations, audits and reviews and further allege the investigations, audits and reviews indicate issues with the management of the school.
  1. b)
    The documents requested across all six Form 29 – Notice of Non-Party Disclosure dated 25, 27, 28 and 29 January 2021 and 1 and 2 February 2021, are specific artefacts in relation to the witnesses' evidence of their knowledge and allegations.[20]
  1. [66]
    The Department has objected to the production of documents sought in the Notices on the following grounds:
  1. a)
    the documents mentioned in the Notices are not directly relevant to a matter in issue in the proceeding;
  1. b)
    the lack of particularity with which the documents are described in the Notices;
  1. c)
    the confidential nature of some of the documents and / or their contents; and
  1. d)
    the expense and inconvenience likely to be incurred by the Respondent, a non-party, in complying with the six Notices.[21]
  1. [67]
    The Notices certainly contain obstacles that would be challenging to overcome, with respect to demonstrating their direct relevance to a matter in issue at the Hearing of Mr Shaw's Workers' Compensation Appeal. 
  1. [68]
    The test set out in the Rules is whether the documents are directly relevant.[22] In Mullins v Workers' Compensation Regulator; Ex parte Drake International Pty Ltd (No. 2), Commissioner Black considered that test (emphasis added, citations removed):

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) (UCRP) 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."[23]

  1. [69]
    In Robson v REB Engineering Pty Ltd, Demack J considered the term "directly relevant":[24]

My opinion is that the word "directly" should not be taken to mean that which constitutes direct evidence as distinct from circumstantial evidence. Rather, "directly relevant" means something which tends to prove or disprove the allegation in issue.

  1. [70]
    The Department submits that "As set out in Bunney,[25] it is not adequate for the Applicant to submit that the documents are directly relevant simply because the Interested Party has referred to them in its outlines of witness evidence."[26]
  1. [71]
    I am persuaded by the Department's submissions about the test of direct relevance with respect to the documents sought in the Notices.  In particular, the observation that:

…it appears that the Applicant seeks to obtain the documents listed in the Notices in order to dispute the evidence to be given by Ms Reid and Dr Smith in respect of the "issues with the management of" Kin Kin State School (Kin Kin SS).  However, whether or not there were issues with the management of Kin Kin SS is not the matter in dispute in the Appeal proceedings.

….

Rather…the Commission will need to consider whether the nominated events identified by the Applicant occurred and whether they constituted reasonable management action taken in a reasonable way.[27]

  1. [72]
    I note also the "historical and broad nature of the categories of documents sought"[28] and the lack of proximity to the matter in issue in the Appeal.  In Weston and Parer v State of Queensland (Department of Justice and Attorney-General) (No. 4),[29] it was stated that:

A request for disclosure must not be in the nature of a fishing expedition in the sense that it is an endeavour not to obtain evidence to support a case but to discover whether there is a case at all.

  1. [73]
    With respect to the evidence of Ms Reid and Dr Smith at the Appeal Hearing, Mr Shaw will obviously have opportunity to cross-examine witnesses in that proceeding.
  1. [74]
    If I were minded to hear Mr Shaw's Application out of time, it would not have succeeded for the reasons summarised above.
  1. [75]
    The Department also makes submissions about how the information sought is "sensitive and confidential and the task of redacting the documents would be burdensome and oppressive."[30]  The Department says that they are mindful of their obligations under the Information Privacy Act 2009 (Qld).  In my view, under r 64B of the Rules, the Department would be required to provide documents if they are directly relevant. The Department would not be entitled to remove or redact parts of documents of their own volition that they consider to be unduly sensitive, private or confidential. The requirements for disclosure in proceedings overbear those other requirements, in part because documents disclosed in the course of litigation are already subject to various protections. If the matter proceeds to hearing, it is open to seek suppression orders.
  1. [76]
    With respect to such issues, Martin J said in DP World Brisbane Pty Ltd v Rogers & Anor (citations omitted):[31]

The mere claim that a document to be produced is confidential is not a valid objection to its production. Much of what is disclosed to another party in court or tribunal proceedings of one kind or another may well be confidential. It has been held that where this is the case, "the risk to the confidentiality of the information must be tolerated in the interest of the administration of justice". Where specific issues of privacy or a heightened concern for commercial confidentiality, for example, arise, arrangements may be made to ensure that the disclosure of material and information that is made does not go beyond what is strictly necessary in the circumstances.8 What has been said with regard to confidential information might equally be said to apply in the case of personal information that might in other circumstances be protected by privacy legislation. Accordingly, the mere fact that information to be produced might include "private" information, however defined, is an insufficient ground in law to justify the setting aside of a Notice or to issue a Notice.

Reference was made in the submissions before the Commission and in this Court to the provisions of the Privacy Act 1988 (Cth). The provisions of that Act do not restrict the powers of the Commission in this case. If that Act is relevant, Principle 11, contained in s 14, expressly exempts "disclosure … required or authorised by or under law" from the limits on disclosure of personal information.

The second concern identified in the Commission's reasons was as to the use to which information incidentally disclosed as a result of the relevant Notice might be put. This concern is similar to that which centres upon notions of privacy or confidentiality. It is well established that parties to whom documents are discovered may not use the discovered documents or the information that they contain for a purpose other than the conduct of the proceedings in question. To do so would amount to conduct in contempt of the relevant court or tribunal, and this principle has been held to extend to material produced on subpoena. Accordingly, this concern does not justify the exercise of the Commission's discretion.

  1. [77]
    The same conclusion was reached by Merrell DP in Deceased Estate of Barry James Willis v Workers' Compensation Regulator,[32] albeit in a different context.
  1. [78]
    The Department submits that the document disclosure sought is oppressive.  I would agree with that to the extent that some of the documents sought are so vague and unparticularised as to render the request unduly onerous.  However, that concern would have been assuaged by r 64I of the Rules which provides for Mr Shaw to pay the 'reasonable expenses' of producing the required documents as incurred by the Department.
  1. [79]
    I order accordingly.

Orders:

  1. That the Application in existing proceedings filed by Mr Trent Shaw on 26 February 2021 is dismissed.
  1. That pursuant to r 64G of the Industrial Relations (Tribunals) Rules 2011 (Qld), the six Form 29 – Notices of non-party disclosure filed by Mr Trent Shaw on 25, 27, 28 and 29 January 2021 and 1 and 2 February 2021 are set aside.
  1. Each party is to bear their own costs.

Footnotes

[1] House v The King (1936) 55 CLR 499, [2].

[2] Susan Lloyd v State of Queensland (Department of Communities, Child Safety and Disability Services) [2015] QIRC 138, [40]; Tonia Shelley v McRoberts Agency [2009] 190 QGIG 189.

[3] Ibid.

[4] Ibid.

[5] [2020] QIRC 113, 4 [13].

[6] Appellant’s Reply Submissions, filed 22 March 2021, page 1.

[7] In November - December 2020.

[8] Appellant’s Reply Submissions, filed 22 March 2021, page 2, [5].

[9] Appellant’s Reply Submissions, filed 22 March 2021, page 2, [6].

[10] Appellant’s Reply Submissions, filed 22 March 2021, page 2, [6].

[11] 11:37 am.

[12] Appellant’s Reply Submissions, filed 22 March 2021, page 2, [12].

[13]Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 556.

[14] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 300.

[15] Grant v State of Queensland (Queensland Health) [2020] QIRC 228.

[16] That contact with the Industrial Registry was made on 9 February 2021. 

[17] Application in Existing Proceedings, filed 26 February 2021.

[18] In November and December 2020.

[19] Application in Existing Proceedings, filed 26 February 2021, page 3.

[20] Appellant’s Submissions, filed 9 March 2021, page 1, [1].

[21] Department’s Submissions, filed 16 March 2021, page 3, [22].

[22] Industrial Relations (Tribunals) Rules 2011 (Qld) r 64B.

[23] [2020] QIRC 003.

[24] [1997] 2 Qd R 102, 105. Referred to in Rubin v Bank of Queensland Ltd [2010] QSC 175.

[25] Bunney v Workers’ Compensation Regulator [2020] QIRC 210.

[26] Department’s Submissions, filed 16 March 2021, page 5, [29].

[27] Department’s Submissions, filed 16 March 2021, page 5, [31]-[32].

[28] Department’s Submissions, filed 16 March 2021, page 5, [34].

[29] [2016] QIRC 75, [4].

[30] Department’s Submissions, filed 16 March 2021, page 8, [48].

[31] [2014] ICQ 010, [18] – [20].

[32] [2020] QIRC 077.

Close

Editorial Notes

  • Published Case Name:

    Shaw v State of Queensland (Department of Education)

  • Shortened Case Name:

    Shaw v State of Queensland (Department of Education)

  • MNC:

    [2021] QIRC 127

  • Court:

    QIRC

  • Judge(s):

    McLennan IC

  • Date:

    14 Apr 2021

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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