Kirby v Workers' Compensation Regulator
[2021] QIRC 225
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Kirby v Workers' Compensation Regulator[2021] QIRC 225
- Add to List
Kirby v Workers' Compensation Regulator[2021] QIRC 225
Kirby v Workers' Compensation Regulator[2021] QIRC 225
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Kirby v Workers' Compensation Regulator [2021] QIRC 225 |
PARTIES: | Kirby, Sharon (Applicant) v Workers' Compensation Regulator (Respondent) |
CASE NO: | WC/2020/39 |
PROCEEDING: | Application in Existing Proceedings – Disclosure |
DELIVERED ON: | 22 June 2021 |
MEMBER: HEARD AT: | Knight IC On the papers |
ORDERS: |
|
CATCHWORDS: | INDUSTRIAL LAW – DISCLOSURE – Notice of non-party disclosure – whether read receipt contained additional materials – whether content or attachment has been provided to the appellant – further and better disclosure – whether all relevant documents have been provided to the appellant – nature of the materials – whether fishing expedition – use of appropriate forms – application dismissed. |
LEGISLATION: | Industrial Relations Act 2016 (Qld) s 451 Industrial Relations (Tribunal) Rules 2011 (Qld) rr 46, 64B Workers' Compensation and Rehabilitation Act 2003 (Qld) s 131 |
CASES: | Commissioner for Railways v Small (1938) 38 SR (NSW) 564 Commonwealth of Australia v Northern Land Council (1993) 176 CLR 604 Compagnie Financière et Commerciale du Pacifique v Peruvian Guano Co (1882) 11 QBD 55 DP World Brisbane Pty Ltd v Rogers & Anor [2014] ICQ 010 Re Clerks (Alcoa of Australia – Mining and Refining) Consolidated Award 1985 (Print H2892) Weston and Parer v State of Queensland (Department of Justice and Attorney General) (No 4) [2016] QIRC 75 |
APPEARANCES: | Ms S Kirby, the applicant Ms D Callaghan of Counsel for the Workers' Compensation Regulator |
Reasons for Decision
- [1]Ms Sharon Kirby, the appellant in the substantive proceedings, seeks disclosure of documents in the control of the respondent, the Workers' Compensation Regulator ('the Regulator').
- [2]The issue for determination in this application is whether the Regulator is required to produce the documents identified in a Form 29 – Notice of non-party disclosure ('the NNPD') filed by Ms Kirby in relation to a claim for workers' compensation.
- [3]For the reasons that follow, the application will be dismissed.
Background
- [4]In the substantive proceedings, Ms Kirby appeals a decision of the Regulator which refused to waive the time for applying for compensation under s 131 of the Workers' Compensation and Rehabilitation Act 2003 (Qld).
- [5]On 20 April 2020 the Commission issued Directions requiring the parties to undertake disclosure.
- [6]Ms Kirby subsequently filed the NNPD. In it, she sought disclosure of a document identified as follows:
E-mail subject – Read: Review Application 55235 – Delay Allocation Notice (Recd 9.22am)
('the Read Receipt').
- [7]The nominated party is a Ms Natalie Jones, the Principal Review Officer of the Regulator charged with reviewing Ms Kirby's claim.
- [8]Ms Olivia Steele, Senior Appeals Officer of the Regulator, filed an affidavit in response to the application in which she deposed to the circumstances regarding the Read Receipt as follows:
- 3.On 21 February 2020 at 9.21AM, an email was sent to McGraw-Hill advising that Review 55235 was due to be allocated to a Review Officer but that there would be a delay of approximately four to six weeks before this would occur. The [Regulator] requested a read receipt on this correspondence ...
- 4.On 21 February 2020 at 9.22AM, the [Regulator] received a read receipt from McGraw-Hill. This read receipt is the subject of [Ms Kirby's] application for disclosure ...
- [9]On 18 February 2021, Ms Kirby filed a Form 4 – Application in existing proceedings seeking disclosure of the Read Receipt.
- [10]Following a mention of this matter on 2 March 2021, I issued Directions requiring the parties to exchange submissions and indicating that, unless further order was made, the application would be considered on the papers.[1]
The Issues
- [11]The issues for my determination are as follows:
- (a)Whether the Read Receipt included some content or attachment which has not been provided to Ms Kirby; and
- (b)Whether the Regulator has failed to provide relevant documents to Ms Kirby according to its obligation of disclosure.
Submissions
- [12]Ms Kirby's submissions primarily address issues in dispute in the substantive proceedings which are not appropriate to address in this application.
- [13]As best I understand Ms Kirby's submissions as they relate to this application, she argues the Regulator, in making the decision the subject of the substantive proceedings, must have had regard to material which has not been disclosed to Ms Kirby. She makes this claim on the basis that there are findings in the Regulator's decision which, she says, could not have been made without it having certain information in its possession.
- [14]For its part, the Regulator resists the application on the basis that:
- (a)the Read Receipt has already been provided to Ms Kirby and does not contain any further content or attachment; and
- (b)all relevant documents have been disclosed to Ms Kirby.
- [15]With respect to [14(a)], Ms Steele deposed:
- 5.The read receipt does not contain any further information or attachments. Attachment 1 of the [Ms Kirby's] submissions represents the entirety of the read receipt. The read receipt has not been amended or altered, with the exception of the [Regulator's] administrative release watermark.
- [16]With respect to [14(b)], Ms Steele deposed:
- 6.[Ms Kirby] made a request for the release of the electronic claim file held by the [Regulator] in relation to Review 55235 and later also requested release of the electronic claim file of a prior review, Review 52129.
- 7.Administrative release of Review File 55235 occurred on 29 April 2020 and administrative release of Review File 52129 occurred on 26 June 2020.
- 8.The administrative releases contain all correspondence and submissions received by the Review Unit form either [Ms Kirby] or McGraw-Hill in relation to those reviews. No documents were withheld in either release, with the exception of documents protected by legal professional privilege.
- [17]Consequently, the Regulator seeks orders dismissing the application, progressing the substantive proceedings, and reserving costs.
Relevant Principles
- [18]At the time the order for disclosure was made, r 46 of the Industrial Relations (Tribunal) Rules 2011 (Qld) ('the Rules') relevantly provided:[2]
46 Duty of disclosure
- 1.If a directions order requiring disclosure of documents is made, a party must disclose any document that—
- (a)is relevant to the proceeding or a matter in issue in the proceeding; and
- (a)is in, or comes into, the possession of the party.
- 2.A party must act under subrule (1) until the proceeding is concluded or the matter in issue is admitted, withdrawn, struck out or otherwise disposed of.
- 3.Subrule (1) does not apply to a document in relation to which there is a valid claim to privilege from disclosure.
- [19]
The power to compel production is discretionary and not mandatory in the sense of giving any person, intervener or party a legal right to require, as it sees fit, production of documents or attendance of witnesses.
In its exercise of a broad discretion and judgment over use of the power, the Commission will have regard to practice followed in courts of law where a judicial discretion has been applied to regulate use of a subpoena to produce documents. Any such subpoena must specify with reasonable particularity documents which are required to be produced. It may be sufficiently specific to identify documents to be produced by reference to the subject matter to which they relate. In the case of a corporation, it is usually appropriate, where the custodianship of documents is not clear, to direct the subpoena to the 'Proper Officer'. It is not legitimate to use a subpoena for what, in effect, would be discovery of documents against a person not liable to make discovery, or as a substitute for discovery which should be applied for at the proper time. The documents sought must be of a nature capable of being relevant to an issue which might legitimately arise on the hearing of the matters in dispute. In the first instance the documents are produced to the tribunal upon whom it falls to examine the documents, assess their relevance and determine what access by the parties to the documents may be appropriate … A party will not be required to produce documents where to do so would be oppressive; or where the demand for production is 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.[5]
- [20]Importantly, an attendance notice must only be used for a legitimate forensic purpose, and this will only be so when the documents or evidence sought to be produced are relevant.[6] A document is relevant to the proceedings if it contains information which may – not which must – lead to a train of inquiry that either directly or indirectly enables the party requiring the document to advance his own case or damage the case of his adversary.[7]
- [21]
[4] The case law relating to disclosure establishes a number of principles including the following which are relevant to the task confronting the Commission:
- A decision of the Commission to order disclosure is a quintessential exercise of discretion.
- To be discoverable a document must relate to the question or issues to be decided by the proceedings.
- A document is relevant if it contains information which enables the party calling for production of the document to advance its own case or damage the case of their adversary or it is a document which may fairly lead to a train of enquiry which may have either of those consequences.
- A party will not be required to produce documents where to do so would be oppressive.
- 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.
- Orders for disclosure should not be made for the purpose of enabling a party to attack credibility.
- [22]With respect to notices of non-party disclosure, the Rules relevantly provided:
64B Notice requiring non-party production
- 1.A party to a proceeding may, by notice of non-party production, require a person who is not party to the proceeding (the non-party) to produce to the party, within 14 days after service of the notice on the non-party, a document—
- (a)relevant to a matter in issue in the proceeding; and
- (b)in the possession or under the control of the non-party; and
- (c)that is a document the non-party could be required to produce at the hearing for the proceeding.
- 2.The party may not require production of a document if there is available to the party another reasonably simple and inexpensive way of proving the matter sought to be proved by the document.
- 3.The non-party must comply with the notice but not before the end of 7 days after service of the notice on the non-party.
- 4.The requirement, under this rule, for a non-party to produce a document is not an ongoing duty.
Consideration
Does the Read Receipt identified in the NNPD include some content or attachment which has not been provided to Ms Kirby?
- [23]In circumstances where the determination of the issues set out above are a matter of fact, not law, it is necessary to consider the evidence submitted by the parties.
- [24]Attached to Ms Kirby's submissions was the copy of the Read Receipt provided to her by the Regulator.[10] It reads as follows:
From: Cannone, Mariangela
To: OIR-Review Unit
Subject: Read: Review Application 55235 - Delay Allocation Notice
Date: Friday, 21 February 2020 9:22:49 AM
The information contained in this message may be confidential and/or constitute a privileged attorney-client document. If the reader of this message is not the intended recipient, or any employee or agent responsible for delivering this message to the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please notify McGraw-Hill immediately by replying to the message and deleting it from your computer. Thank you.
- [25]The email which triggered the Read Receipt is attached to Ms Steele's affidavit. As I understand it, the email is simply an administrative notice provided to Ms Kirby's former employer to confirm an expected delay in allocating Ms Kirby's complaint to a review officer and outlining the review process going forward.
- [26]I am familiar with read receipts generally. They are an automatically generated response to indicate that a person has opened a particular email. It is common practice, particularly in a professional setting, for a person to request a read receipt from the intended recipient, as an acknowledgment the email has been received.
- [27]I accept the Regulator's evidence that the Read Receipt was generated by Ms Kirby's former employer in response to the email as outlined at [25] above.
- [28]I am satisfied the Read Receipt contained nothing more than what is set out at [23] above. As the document has already been disclosed to Ms Kirby, it is not necessary or appropriate to order the Regulator to do so again.
Has the Regulator failed to provide relevant documents according to its disclosure obligations?
- [29]As already noted above, the Regulator has an ongoing obligation to disclose any document that is relevant to the substantive proceeding.
- [30]Although Ms Kirby's application is brought in respect of the Read Receipt only, it is apparent from her submissions she is of the belief that the Regulator has failed to disclose all the material relevant to her substantive proceedings. One of the challenges I have with Ms Kirby's submissions, however, is that she has failed to identify what this material is or may be.
- [31]In these circumstances, I therefore consider Ms Kirby's application falls, in so far as it relates to this particular issue, within the realm of a fishing expedition.
- [32]Ms Steele has deposed that the Regulator released all relevant documentation, with the exception of documents protected by legal professional privilege, on 29 April 2020 and 26 June 2020 respectively.
- [33]In the absence of any evidence of dishonesty on Ms Steele's part, or any application claiming that the remaining documents are not in fact covered by legal professional privilege, I accept the Regulator's submission that it has provided all relevant documentation to Ms Kirby.
Other matters
- [34]Before concluding, it is necessary to address one other procedural matter, being the NNPD. Although the form nominates Ms Jones as the relevant non-party, as I understand it, Ms Kirby seeks disclosure from the Regulator itself as opposed to Ms Jones personally.
- [35]The Regulator is a party to these proceedings and, as is apparent from the above, already has disclosure obligations to Ms Kirby. It was therefore unnecessary to file the NNPD and not appropriate considering the Regulator is not a "non-party". This should not be understood as a criticism of Ms Kirby. I accept that she is an unrepresented litigant who is unfamiliar with Commission processes.
Conclusion
- [36]For the reasons given above, the application must be dismissed and the NNPD set aside.
- [37]I order accordingly:
Order
- 1.The application is dismissed.
- 2.The Form 29 – Notice of non-party disclosure filed 24 November 2020 is set aside.
- 3.Costs of the application are reserved.
Footnotes
[1] As permitted by s 451(1) of the Industrial Relations Act 2016 (Qld).
[2] I note the Rules were amended by the Industrial Relations (Tribunal) Amendment Rule 2021 (Qld) in March 2021. However, for present purposes, the relevant Rules are those that applied at the time disclosure was ordered.
[3] [2014] ICQ 010.
[4] Ibid [14].
[5] Re Clerks (Alcoa of Australia – Mining and Refining) Consolidated Award 1985 (Print H2892) (Munro J) (my emphasis).
[6] Commissioner for Railways v Small (1938) 38 SR (NSW) 564, 574-575 (Jordan CJ).
[7] Compagnie Financière et Commerciale du Pacifique v Peruvian Guano Co (1882) 11 QBD 55 (Brett LJ); Commonwealth of Australia v Northern Land Council (1993) 176 CLR 604, 632 (Toohey J).
[8] [2016] QIRC 75.
[9] Ibid [4] (my emphasis).
[10] Ms Kirby's submissions filed 19 March 2021, Attachment 1.