Mason v Arnott's Biscuits Ltd
[2021] QIRC 250
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- Unreported Judgment
- Mason v Arnott's Biscuits Ltd[2021] QIRC 250
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Mason v Arnott's Biscuits Ltd[2021] QIRC 250
Mason v Arnott's Biscuits Ltd[2021] QIRC 250
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Mason v Arnott's Biscuits Ltd [2021] QIRC 250 |
PARTIES: | Mason, Barry Kenneth (Applicant) v Arnott's Biscuits Ltd (Respondent) |
CASE NO: | WC/2021/23 |
PROCEEDING: | Application in existing proceedings |
DELIVERED ON: | 23 July 2021 |
HEARING DATES: | On the papers |
MEMBER: | McLennan IC |
HEARD AT: | Brisbane |
ORDERS: |
2 All documents that record or evidence that the Applicant himself has been trained or reviewed in his employment including but not limited to that which relate to competency on machines and any other training programs undertaken. 8 All scrap figures for Line 7 while the Applicant operated the Line 7 cutting machine.
|
CATCHWORDS: | WORKERS' COMPENSATION – DISCLOSURE – Notice of non-party disclosure – Application seeking compliance order – whether documents sought are directly relevant to issue in the proceeding – where documents not in the possession of Respondent – consideration of confidentiality |
LEGISLATION: CASES: | Industrial Relations (Tribunals) Rules 2011 (Qld) r 64B, r 64E, r 64F, r 64G, r 64H Workers' Compensation and Rehabilitation Act 2003 (Qld) s 32 DP World Brisbane Pty Ltd v Rogers & Anor [2014] ICQ 10 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 |
Reasons for Decision
Background
- [2]On 30 April 2021, Mr Barry Mason (the Applicant) filed a Form 29 Notice of non-party disclosure with the Industrial Registry (the Notice).
- [3]The Notice sought to compel Arnott's Biscuits Ltd (Arnott's; the Respondent) to produce various documents. The Applicant claims he requires the sought documents for the future substantive hearing of his Workers' Compensation Appeal filed 8 March 2021 (the Appeal).
- [4]On 4 May 2021, the Applicant served the Notice on the Respondent under r 64D of the Industrial Relations (Tribunals) Rules 2011 (Qld) (the Rules). The Respondent did not comply within 14 days as required under r 64B of the Rules nor object to the Notice within 7 days under r 64E of the Rules.
- [5]On 2 June 2021, the Applicant filed a Form 4 Application in existing proceedings (the Application) seeking that the Respondent be ordered to comply with the Notice.
Objection
- [6]In its submissions filed 17 June 2021, the Respondent objected to providing certain documents listed in the Notice pursuant to r 64E of the Rules (Objection Notice).
- [7]Notably, r 64E of the Rules requires that a person who has been served with a Notice object to the production of documents "within 7 days after its service or, with the leave of the industrial tribunal, a later time."
- [8]The Respondent should have served the Objection Notice by 11 May 2021 - being 7 days after the Applicant served the Notice.
- [9]The Respondent served the Objection Notice 37 days out of time and has not sought leave of the Industrial Tribunal to serve it out of time. Further, the Respondent has not provided an explanation for its delay in serving the Objection Notice.
- [10]Although r 64F of the Rules provides that "Service of an objection under rule 64E operates as a stay of the notice", I do not accept the Objection Notice has been served in accordance with r 64E by virtue of the delay and therefore conclude that it does not operate as a stay of the Notice.
- [11]It is highly unfortunate the Respondent took the time it did to ultimately object to the Notice. That means the Applicant's matter has been delayed somewhat. The Respondent ought to ensure this does not occur again.
- [12]Nevertheless, the question of whether to order compliance is fundamentally an exercise of discretion. Such an exercise must be undertaken judicially and according to the rules of reason and justice, nor arbitrarily or capriciously or according to private opinion.[1] As such, I will not automatically order compliance by virtue of the Respondent's failures to comply. Instead, I must consider each of the requested documents in turn to determine whether they are directly relevant to the Appeal. If any of the documents are deemed relevant, an order for compliance will be issued.
Relevant Principles
- [13]Rule 64H of the Rules provides the following (emphasis added):
- (1)Unless the operation of a notice is stayed, and subject to any order under rule 64G (2) , the non-party must produce the document specified in the notice for inspection by the party at the place of business of the non-party, or the non-party’s lawyer, within ordinary business hours or at another place or time agreed by the party and the non-party.
- (2)If the non-party does not comply with subrule (1), the party may apply to the industrial tribunal who may order compliance and make another order the industrial tribunal considers appropriate.
- [14]Rule 64B of the Rules provides that a party to a proceeding may require a person who is not party to the proceeding to produce a document that is:
- (a)directly 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.
- [15]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."[2]
- [16]In Robson v REB Engineering Pty Ltd, Demack J considered the term "directly relevant":
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.[3]
The Appeal
- [17]On 8 March 2021, the Applicant filed an appeal seeking to overturn a decision made by Mr Steven May (the decision maker) of the Workers' Compensation Regulator (the Regulator) dated 19 October 2020 (the Decision).
- [18]The Regulator accepted the Applicant "has sustained an injury of a psychiatric nature".
- [19]The decision maker determined the most reliable account of factors contributory to the Applicant's psychiatric injury was to be ascertained from a formal statement obtained by Mr John Sargeant of SafeAssure Pty Ltd. The contents of that statement have been extracted from the Decision and are outlined below.
- [20]The Regulator accepts the injury arose out of or in the course of the Applicant's employment and was the major significant contributing factor to the Applicant's injury. The Regulator drew this conclusion from an alleged incident on 2 May 2019 in which the Applicant was allegedly approached in the breakroom by manufacturing manager Mr Simon Duffy (the 2 May 2019 Incident). As alleged by the Applicant, the 2 May 2019 Incident can be summarised as follows:
- The Applicant was on a short break at the time.
- Mr Duffy approach Applicant and asked why a board had not been updated.
- The Applicant responded that he was taking a designated break and had not taken any notice of the board.
- Mr Duffy informed the Applicant that he wanted it updated.
- The Applicant found this to be strange because Mr Duffy had walked past someone else who was seated and unlike the Applicant, did not have an injury.[4]
- This led the Applicant to consider he was being targeted by management.
- [21]The Regulator proceeded to conclude that the direction provided to the Applicant by Mr Duffy during the 2 May 2019 Incident constituted management action. However, the Regulator determined "the direction itself was appropriate and therefore conclude management action in relation to this issue was reasonable and taken in a reasonable way."
- [22]On the basis outlined above, the Regulator rejected the Applicant's claim for compensation in respect of a psychological injury.
- [23]Despite the Regulator finding the 2 May 2019 Incident was the cause of the Applicant's psychiatric injury, the decision letter referred to a number of other events the Applicant had raised as being contributory to his psychiatric distress. Those events are summarised below:
- The Applicant outlined that in 2018, management moved him into line 2 which he perceived was ultimately going to be reduced with a consequential loss of staff. The Applicant believes this move was a breach of contract. The Applicant related that by 3 May 2019, he began to think about what had been occurring at work and his belief that he was being targeted. The Applicant stated he could not turn his mind away from work and as a result he was struggling to sleep at night. However, on this point the decision maker concluded as follows:
There exists no other evidence to support the conclusion reached by Mr Mason that his job was in jeopardy by reason of him being transferred to line 2 and I find that it amounts in the circumstances to speculation. I am unable to conclude that allegation is established on the evidence.
- The Applicant expressed a belief that prior to being injured he did not receive the correct training and development in accordance with the Enterprise Agreement training guide. On this point, the decision maker stated the Applicant did not further elaborate on that contention.
- Furthermore, at pg 2 of the Decision, it reads (emphasis added):
Arnott's refers to a receipt of medical certification from Dr Azmeeri Noor, General Practitioner, on 12 June 2019 diagnosing Mr Mason as having sustained an injury described as depression and anxiety as a result of 'bullying at workplace'. Arnott's noted Mr Mason summarised his events in a document dated 21 August 2019 as follows:
- Unfair treatment in relation to Equal Opportunity;
- Refusal by Arnott's to train me properly
- Conflict of interest in who receives training
- Workplace bullying and harassment
- Refusal to acknowledge my efforts.
- [24]Despite the alternative, potential causes of psychiatric injury outlined above, the Regulator only accepted the 2 May 2019 Incident. On that basis, it appears that the cause of the Applicant's psychiatric injury is in contention. Stemming from this is the issue of whether reasonable management action was taken with respect to those alleged causes.
The Notice
- [25]The documents sought in the Notice are reproduced below:
No. | Description |
1 | Copy of all formal reviews when new technology was introduced |
2 | Copies of all employer/employee reviews |
3 | All Barry Mason's training and commissioning sheets |
4 | All line 7 case counts 2010 - 2014 all shifts |
5 | Signed sheet of all people who attended meeting when John Hill and Joe Crowley announced contracts would be dishonoured and full report for this meeting |
6 | Copy of Mark Rinkevich's training sheets |
7 | Copy of daily run schedule corresponding Mark's training sheets |
8 | Copy of all scrap figures for Line 7 while Barry Mason operated Line 7 cutting machine. Also production figures for same period |
9 | Copy of signed sheet of all people who attended meeting to decide who stayed on Line 7 after weekend roster finished |
10 | Copy of all correspondence between corporate and Arnott's Virginia regarding honouring weekend contracts. Also all correspondence regarding training allowance for weekend roster |
11 | If Mark Rinkevich's sheets are found to be incorrect I want all training and commissioning sheets and their corresponding daily run sheets |
- [26]The Notice is addressed to Mr Harvey Martin of Arnott's Biscuits Ltd.
- [27]In the Notice, the Applicant refers to s 32(5) of the Workers' Compensation and Rehabilitation Act 2003 (Qld), extracted below:
- (5)Despite subsections (1) and (3), injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances—
- (a)reasonable management action taken in a reasonable way by the employer in connection with the worker’s employment;
- (b)the worker’s expectation or perception of reasonable management action being taken against the worker;
- (c)action by the Regulator or an insurer in connection with the worker’s application for compensation.
- [28]The Applicant submits the requested documents are required to assist in proving his case "as they will help me to prove the reasonable action to give me the same opportunities to gain higher levels as other employees was not given."[5]
Submissions
- [29]On 8 June 2021, a Directions Order was issued requiring service of the Application on the Respondent, Affected Parties[6] and the Regulator.
- [30]All parties were given the opportunity to file written submissions in response to the Application. The Regulator and Affected Parties did not file written submissions.
Category One
- [31]The Applicant has sought a "Copy of all formal reviews when new technology was introduced" (Category One).
- [32]The Applicant submits he requires the Category One documents because:
- The reviews are required in accordance with sch 2.3 of Arnott's Biscuits Enterprise Agreement which relates to decisions "to introduce a major change to… technology" and provides:
- (5)As soon as practicable after making its decision, the employer must:
- (a)discuss with the relevant employees:
- (i)the introduction of the change; and
- (ii)the effect the change is likely to have on the employees; and
(iii) measures the employer is taking to avert or mitigate the adverse effect of the change on the employees; and
- (b)for the purposes of the discussion—provide, in writing, to the relevant employees:
- (i)all relevant information about the change including the nature of the change proposed; and
- (ii)information about the expected effects of the change on the employees; and
- (iii)any other matters likely to affect the employees.
- In accordance with sch 2.3, the Respondent should have records of these discussions and a copy of what was given to employees in writing about this technological change involving "the automated machines introduced to Line 7 in 2014."
- The Applicant was not made aware of the impact of major change on his progression with Arnott's. The Applicant agreed to stay on as "Case Packer on Line 7" on the provision he would be given the same opportunity to gain the same skills as everyone else.
- Category One is relevant to the Applicant's case as it would show how equal opportunity was not afforded to him.
- [33]The Respondent submitted it does not have the documentation requested.
Consideration
- [34]A requirement under r 64B of the Rules is that a non-party is only required to produce a document that is "in the possession or under the control of the non-party". The Respondent has claimed it does not have the documentation that falls under Category One. I accept this to be the case because if the Respondent were able to prove compliance with the Enterprise Agreement, I believe it would readily do so.
- [35]Further, considerable time has passed since 2014 and it is possible that no records were kept of the written correspondence because such records were not required to be kept and if they were, that correspondence may very well have been disposed of considering the elapse of time. This would not be unreasonable.
- [36]I accept that the Respondent does not possess the requested documentation and therefore an order for compliance would be futile.
Category Two
- [37]The Applicant has sought "Copies of all employer/employee reviews" (Category Two).
- [38]The Applicant submits the documents are required because he only received one employer/employee review in 2010. The Applicant would like to discover "if this process was replaced with another system that was the new system and when it was implemented. The question has to be asked when this was communicated with the Employees of the company."
- [39]The Respondent replied that it does not conduct performance reviews of waged staff. In response, the Applicant contended that tracking sheets required by employees to gain competency on machines include a column for reviews to be signed by the operator and team leader. The Applicant considers this to constitute an employer/employee review and it is his understanding that the team leader should conduct a review prior to an employee beginning new training so the employees can understand what is expected of them. The Applicant contends that if there are no such reviews, he cannot know if he is meeting his commitments to the company and Arnott's cannot prove they are giving their employees equal opportunity.
- [40]The Respondent submitted it would be impractical to provide the requested training records which comprise tens of thousands of pages, noting the training records relating to the Applicant himself comprise 170 pages.
Consideration
- [41]The ambit of documents sought in Category Two is exceptionally broad and I consider this request for information comprises an impermissible fishing expedition that is aimed at discovering whether there is a case that exists with respect to the Applicant's suspicions. The documents sought are so vague and unparticularised as to render the request unduly onerous.
- [42]Notwithstanding, I will limit the scope of the request to the Applicant's training records alone on the basis it may be relevant to proving whether reasonable management action was taken in this regard. Further, the documentation may be relevant to the Applicant's allegation that Arnott's refused to train him properly.
- [43]I will amend the Notice and order compliance accordingly.
Category Three
- [44]The Applicant has sought "All Barry Mason's training and commissioning sheets" (Category Three). I understand this category may overlap somewhat with Category Two outlined above.
- [45]The Applicant submits the documents under Category Three are required because he received a Competency & Skills Acknowledgement Form dated 29 September 2016 and for this form to be produced, someone must have sited all of the Applicant's training. Therefore, the Applicant requires copies of all training, commissioning and tracking sheets.
- [46]The Respondent submitted it had agreed to provide the requested documents and did so. However, the Applicant argues that "the Line 7 cutting machine training sheets and the line 7 commissioning sheets for the automated machines" were omitted. The Respondent submits it does not possess this additional information.
Consideration
- [47]As outlined under Category One above, a requirement under r 64B is that a non-party is only required to produce a document that is "in the possession or under the control of the non-party". The Respondent has claimed it does not have the further documentation that has subsequently been requested. I accept this to be the case because the Respondent has already accepted and provided the Applicant with much of the requested information. It seems unlikely the Respondent would go to the effort of contesting further documentation rather than provide it if available.
- [48]I find that the Respondent does not possess the requested documentation and therefore an order of compliance would be futile.
Category Four
- [49]The Applicant has sought "All line 7 case counts 2010 - 2014 all shifts " (Category Four).
- [50]The Applicant submits he "went over and above in helping Line 7 when other shifts had case packer issues" and that the case counts would reflect his strong work ethic. The Respondent contends the requested information is commercially confidential and not relevant to the proceeding.
Consideration
- [51]With respect to issues of confidentiality, Martin J said in DP World Brisbane Pty Ltd v Rogers & Anor (citations omitted) (emphasis added):
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. 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.[7]
- [52]In my view, under r 64B of the Rules, the Respondent is required to provide documents if they are directly relevant. The Respondent is not 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.
- [53]Notwithstanding the above, I am not satisfied with the Applicant's submission that the documents falling under Category Four are relevant to his Appeal - there simply has not been enough information or explanation provided to support such a contention.
- [54]I note in the Decision that the Applicant has evinced a potential link between Arnott's "refusal to acknowledge my efforts" and his psychiatric injury. Although the information sought under Category Four may evidence a degree of effort from the Applicant, I do not accept that it is directly relevant to proving the Respondent refused to acknowledge such efforts.
- [55]The onus is on the Applicant to show why a requested document is directly relevant, however the Applicant has not indicated how evidencing strong work ethic would tend to prove or disprove an allegation in issue. Therefore, I am not convinced that an order for compliance should be made in this instance.
Category Five
- [56]The Applicant has sought a "Signed sheet of all people who attended meeting when John Hill and Joe Crowley announced contracts would be dishonoured and full report for this meeting" (Category Five).
- [57]The Applicant submits he seeks the Category Five documents because such records were required and he would like to "gain a hard copy of what was said and why the company felt the contracts did not have to be honored." The Respondent submitted the documents do not exist and alternatively offered to provide a list of employees who were on shift at the time of the meeting.
Consideration
- [58]I accept the Respondent does not possess the requested documentation because the Respondent has offered an alternative option and I do not consider it would be onerous for the Respondent to provide the information if it were in its possession. It seems unlikely the Respondent would go to the effort of contesting further documentation rather than provide it if available.
- [59]Even if I was wrong on the above point, the Applicant has not presented submissions as to how these additional documents are directly relevant to an issue in the Appeal. Therefore, I am not satisfied that an order for compliance is reasonable in these circumstances and regardless, it would be seemingly futile.
Category Six and Category Seven
- [60]The Applicant has sought a "Copy of Mark Rinkevich's training sheets" (Category Six) and a "Copy of daily run schedule corresponding Mark's training sheets" (Category Seven).
- [61]I understand from the submissions the Respondent agreed to provide the requested documents and did so. However, the Applicant argues that "none of Mark's Training/Tracking sheets were provided. Mark was definitely rostered as an operator and would therefore have been required to do training to operate these machines." Further, the Applicant contends that "Once Mark's Training (Tracking) sheets are found I will need the corresponding daily run schedules for the dates on the training sheets to be provided."
- [62]The Respondent submits it does not possess this additional information requested.
Consideration
- [63]I accept the Respondent does not possess the additionally requested information because the Respondent has already accepted and provided the Applicant with much of the requested information. It seems unlikely the Respondent would go to the effort of contesting further documentation rather than provide it if available.
- [64]Even if I was wrong on the above point, the Applicant has not presented submissions as to how these additional documents are directly relevant to an issue in the Appeal. Therefore, I am not satisfied that an order for compliance is reasonable in these circumstances and regardless, it would be seemingly futile.
Category Eight
- [65]The Applicant has sought a "Copy of all scrap figures for Line 7 while Barry Mason operated Line 7 cutting machine. Also production figures for same period" (Category Eight).
- [66]The Applicant submits "I claim why (sic) work and the role I played in meeting Company targets for Quality and production was of the highest standard. Arnott's should have no problem providing this (sic) should represent my obligations to the company are met." The Respondent ultimately submitted it could provide the requested documentation relating to scrap figures. However, contends it cannot provide the requested documentation in relation to case counts as this is confidential to the Respondent.
Consideration
- [67]I acknowledge the Respondent has agreed to provide requested documentation relating to scrap figures. Noting the consent of the Respondent in that respect, I will order compliance accordingly.
- [68]With respect to the case count information, for the reasoning outlined in paragraphs [51] and [52] above, the mere claim that a document to be produced is confidential is not a valid objection where the Applicant can prove the document is directly relevant to an issue in the proceedings.
- [69]Nevertheless, I am not satisfied with the Applicant's submission that the case count information is relevant to his Appeal - there simply has not been enough information or explanation provided to support such a contention. I note in the Decision that the Applicant has evinced a potential link between Arnott's "refusal to acknowledge my efforts" and his psychiatric injury. Although the information sought under Category Eight may evidence the efforts from the Applicant, I do not accept that it is directly relevant to proving the Respondent refused to acknowledge such efforts.
- [70]The onus is on the Applicant to show why a requested document is directly relevant. Therefore, an order for compliance with respect to the case counts should not be made in this instance.
Category Nine
- [71]The Applicant has sought a "Copy of signed sheet of all people who attended meeting to decide who stayed on Line 7 after weekend roster finished" (Category Nine).
- [72]I understand from the submissions the Respondent agreed to provide the requested documents but subsequently realised they could not be located. The Applicant did not present submissions with respect to why he requires the documents, but rather submits the "information should be obtainable". The Respondent submits that in the absence of further details that the Respondent has sought from the Applicant, the Respondent is unable to provide the requested documents.
Consideration
- [73]For reasons outlined above, absence any submissions as to why the documents sought are directly relevant to an issue in the Appeal and further, in light of the Respondent being unable to locate the document/requiring further particularisation from the Applicant, I will not order compliance under this category.
- [74]Notwithstanding, I acknowledge the parties are clearly communicating with respect to these documents and encourage further communication to see if an agreement can be reached.
Category Ten
- [75]The Applicant has sought a "Copy of all correspondence between corporate and Arnott's Virginia regarding honouring weekend contracts. Also all correspondence regarding training allowance for weekend roster" (Category Ten).
- [76]The Applicant submits the documents are required because it is his "belief that Corporate had been in communication with the Virginia site and given them instructions on how they wanted the weekend roster contracts delt (sic) with and had also given the Virginia site unlimited training allowances to help them meet the production requirements." The Applicant contends it is "necessary for Arnott's to have properly trained people operating their machines as part of their obligations to customers."
- [77]The Respondent submits the description of the requested documents lacks particularity.
Consideration
- [78]The Applicant has requested the documents that fall under Category Ten on the basis of a belief that they should and do exist. The ambit of documents sought is exceptionally broad and I consider this request for information comprises an impermissible fishing expedition that is aimed at discovering whether there is a case that exists with respect to the Applicant's suspicions. The documents sought are so vague and unparticularised as to render the request unduly onerous.
- [79]Further, the Applicant has not provided submissions with respect to the relevance of this category of documents. As such, I am not persuaded that an order of compliance is appropriate in the circumstances.
Category Eleven
- [80]In the event "Mark Rinkevich's sheets are found to be incorrect" the Applicant has sought "all training and commissioning sheets and their corresponding daily run sheets" (Category Eleven). Specifically, the Applicant is seeking "all employees machine training (tracking sheets). And corresponding daily run schedules."
- [81]The Applicant submits the documents are required because "Arnotts have an obligation to their customers to provide adequate training and therefore should have no problems providing this information" as the Applicant is "sure they have a process in place to make sure all of their training is done properly."
- [82]The Respondent submits it is impractical to provide the large amount of information requested.
Consideration
- [83]For the same reasons provided under Category Ten above, I am not persuaded that an order of compliance is appropriate in these circumstances.
Conclusion
- [84]Unfortunately for the Applicant, the direct relevance of the documentation sought has not been clearly explained and in corroboration with the Respondent not possessing some documents or the ambit being far too broad, I have found that an order for compliance is inappropriate in the circumstances.
- [85]I noted earlier the Respondent failed to object to the Notice or provide the requested documentation within the required timeframes. Rather, it waited until the Application was filed and Directions Orders were issued. This has meant the Applicant's Appeal has been drawn out perhaps longer than it needed to be with respect to the aspect of disclosure. The Respondent should ensure that in the future, it complies with the Rules so that the matter can be resolved expeditiously.
- [86]I order accordingly.
Orders:
- That pursuant to r 64H(2) of the Industrial Relations (Tribunals) Rules 2011 (Qld):
- The Notice of non-party disclosure filed 30 April 2021 be varied on pg 3 under the heading 'Schedule of Documents' to strike out documents numbered 1, 3, 4, 5, 6, 7, 9, 10 and 11.
- The Notice of non-party disclosure filed 30 April 2021 be varied on pg 3 under the heading 'Schedule of Documents' to read:
2 All documents that record or evidence that the Applicant himself has been trained or reviewed in his employment including but not limited to that which relate to competency on machines and any other training programs undertaken.
8 All scrap figures for Line 7 while the Applicant operated the Line 7 cutting machine.
- The Respondent is to disclose the documents in the varied Notice of non-party disclosure to the Applicant within 14 days.
Footnotes
[1] House v The King (1936) 55 CLR 499, [2].
[2] [2020] QIRC 003.
[3] [1997] 2 Qd R 102, 105. Referred to in Rubin v Bank of Queensland Ltd [2010] QSC 175.
[4] The Decision refers to an injury to the Applicant's right ankle which was accepted and in relation to which benefits were paid up until 13 June 2019.
[5] Notice of non-party disclosure filed 30 April 2021, p 2.
[6] Affected Parties listed on the Notice were Mr John Hill, Mr Joe Crowley and Mr Mark Rinkevich.
[7] [2014] ICQ 010, [18] – [20].