Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QIRC
  3. 2021
  4. Wallace v Workers' Compensation Regulator - [2021] QIRC 277

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Wallace v Workers' Compensation Regulator[2021] QIRC 277

Wallace v Workers' Compensation Regulator[2021] QIRC 277

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Wallace v Workers' Compensation Regulator [2021] QIRC 277

PARTIES:

Wallace, Vicki Ann

(Appellant)

v

Workers' Compensation Regulator

(Respondent)

CASE NO:

WC/2020/114

PROCEEDING:

Application in existing proceedings

DELIVERED ON:

11 August 2021

MEMBER

Hartigan IC

HEARD AT:

On the papers

ORDERS:

  1. Pursuant to r 226(2)(d) of the Industrial Relations (Tribunals) Rules 2011 (Qld), I declare that the production of the documents by the Department of Human Services produced pursuant to an Attendance Notice for Production on 1 March 2021 instead of a Notice of Non-Party Production to be effectual.
  1. Pursuant to r 226(2)(e) of the Industrial Relations (Tribunals) Rules 2011 (Qld), the documents produced to the Industrial Registry by the Department of Human Services pursuant to the Attendance Notice for Production may be copied by the Workers' Compensation Regulator.

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – PROCEDURE – where application in existing proceedings by the Respondent to copy documents produced under an Attendance Notice to Produce – where Industrial Relations (Tribunals) Rules 2011 do not make provisions for copying documents produced under an Attendance Notice to Produce – whether the Commission can rely on s 451 of the Industrial Relations Act 2016 to grant the order – where the use of an Attendance Notice to Produce for obtaining non-party discovery is potentially an abuse of process – where use of wrong procedure does not amount to a nullity – where declaration is made that the production of documents under the Attendance Notice to Produce be effectual – where order is granted to Respondent to copy documents.

LEGISLATION:

Industrial Relations Act 2016 (Qld), s 451, s 551,

Industrial Relations (Tribunals) Rules 2011 (Qld), r 5, r 6, r 58, r 59, r 60, r 60A, r 64B, r 64C, r 64D, r 64E, r 64G, r 64H, r 226

Workers' Compensation and Rehabilitation Act 2003 (Qld), s 144A, s 144B

CASES:

Adler v Khoo [2010] QCA 360

Collie v Edmunds [2006] QSC 343

Goodwin v Phillips (1908) 7 CLR 1

Kelsey v Logan City Council & Ors [2018] QIRC 108

Leighton Contractors Pty Ltd v Western Metals Limited [2001] 1 Qd R 261

Quinlan v Rothwell [2002] 1 Qd R 647

Reasons for Decision

  1. [1]
    This is an application made in an existing proceedings relating to an appeal of a decision of the Workers' Compensation Regulator ("the Regulator").  In the proceedings, both parties seek to obtain copies of the Appellant's ("Ms Wallace") Medicare and PBS records[1] ("the documents") which have been produced in accordance with an Attendance Notice to Produce.
  1. [2]
    On 4 March 2021, the Regulator applied for leave to inspect and take copies of the documents which were produced in accordance with the Attendance Notice to Produce.  Whilst, on 15 March 2021, the Industrial Registrar issued an order granting permission that the documents be inspected, no order was issued permitting the documents to be copied.
  1. [3]
    The issue before me is whether an order may be made permitting the parties to obtain copies of the documents that have been produced in accordance with an Attendance Notice to Produce.
  1. [4]
    It appears to be accepted by the Regulator,[2] that r 60 of the Industrial Relations (Tribunals) Rules 2011 ("Tribunal Rules"), does not make provision for documents produced in accordance with an Attendance Notice to Produce to be copied and provided to the parties.
  1. [5]
    Accordingly, in this application, the Regulator has sought orders, relying on the Commissions' general powers under s 451(2) of the Industrial Relations Act 2016 ("IR Act"), in the following,  alternative, terms:
  1. pursuant to s 451(2) of the IR Act, that the Industrial Registry provide to the Applicant copies of any material disclosed by Services Australia/the Department of Human Services to the Queensland Industrial Relations Commission under the Form 32B – Attendance Notice to Produce issued on 5 January 2021; and
  1. in the alternative, pursuant to s 451(2) of the IR Act, the Department of Human Services is ordered to provide to the Applicant directly, a full and complete copy of the Medicare Patient and PBS histories in written or electronic form for a 10-year period immediately preceding the date of receipt of this order pertaining to the appellant - Vicki Ann Wallace (DOB 01/03/1957).

Relevant background

  1. [6]
    As referred to above, the issue has arisen in the course of an appeal lodged by Ms Wallace, who made an application for compensation with Workcover on or about 30 April 2019, for a lower back injury sustained on 9 April 2019.  On 9 January 2020, Workcover provided reasons for a decision in which it confirmed a decision to terminate Ms Wallace's entitlement to compensation pursuant to ss 144A and 144B of the Workers' Compensation and Rehabilitation Act 2003 (Qld) ("the WCR Act").
  1. [7]
    Ms Wallace lodged an application for review of that decision on 1 April 2020.
  1. [8]
    By a review decision dated 17 July 2020, containing written reasons for the decision dated 29 July 2020, the Regulator's review unit confirmed the decision of Workcover to terminate Ms Wallace's entitlement to compensation from 9 January 2020, in accordance with ss 144A and 144B of the WCR Act.
  1. [9]
    It is from that decision that Ms Wallace has lodged the appeal to the Queensland Industrial Relations Commission on 27 August 2020.
  1. [10]
    The Regulator submits, and I accept (for the purpose of this application only),  that one of the issues in the appeal, is whether Ms Wallace had a pre-existing condition which was aggravated by the event on 9 April 2019, and the extent of that aggravation.
  1. [11]
    Relevantly, both parties have sought to obtain copies of Ms Wallace's Medicare and PBS records as part of their respective preparation for the appeal.  I accept the submissions made by Regulator that it is likely that those records may lead to further lines of inquiry for both parties when, and if, they are provided.
  1. [12]
    The Regulator states that if orders are granted in the terms sought, then it will disclose any copy of the documents which is provided to it to Ms Wallace's legal representatives during the course of disclosure.
  1. [13]
    On 5 May 2021, I issued directions that, inter alia, a copy of the application, any supporting material and the notice of listing for the hearing of the application, be served on the Department of Human Services.  The Department of Human Services did not attend the hearing of the application, nor has it responded in any other form to the application.

Relevant legislation

  1. [14]
    The relief sought by the Regulator, is reliant on the general powers of the Commission contained in s 451 of the IR Act, which relevantly provides as follows:

451  General powers

  1. (1)
    The commission has the power to do all things necessary or convenient to be done for the performance of its functions.
  2. (2)
    Without limiting subsection (1), the commission in proceedings may -
  1. (a)
    give directions about the hearing of a matter; or
  2. (b)
    make a decision it considers appropriate, irrespective of the relief sought by a party; or
  3. (c)
    make an order it considers appropriate.
  1. (3)
    The commission may, by general order or for a particular case, delegate to the registrar -
  1. (a)
    the working out of a decision of the commission to implement the decision; or
  2. (b)
    a function relating to the decision, including, for example -
  1. (i)
    the giving of directions; or
  2. (ii)
    the making of orders; or
  3. (iii)
    the preparation of rosters and schedules; or
  4. (iv)
    a similar function it considers appropriate.
  1. (4)
    The full bench may, to assist it in the resolution of proceedings -
  1. (a)
    refer the whole or part of a question or matter before it to the commission -
  1. (i)
    for investigation by the commission and the preparation of a report on the investigation; or
  2. (ii)
    for another action it decides; or
  1. (b)
    direct 1 or more of its members to carry out an investigation or inspection and prepare a report on the investigation or inspection.
  1. (5)
    The commission or member must comply with the reference or direction.
  1. [15]
    However, and in addition to the general powers of the Commission contained in s 451(2) of the IR Act, the Tribunal Rules provide for procedural matters before the Commission.
  1. [16]
    Part 2, Division 2 of the Tribunal Rules sets out the procedures before the Court, Commission or Registrar.
  1. [17]
    Relevantly, Part 2, Division 2, Subdivision 7 of the Tribunal Rules provides for the issuing of Attendance Notices to Produce, whilst Subdivision 7A deals with Non-Party Notices.
  1. [18]
    Rule 58(1) of the Tribunal Rules provides that a member of the Commission or the Registrar, may issue an Attendance Notice to a person on the request of a party.  In this matter, the documents were seemingly produced in accordance with r 58 of the Tribunal Rules.
  1. [19]
    Rule 58(2) of the Tribunal Rules provides that a member of the Commission or the Registrar may refuse a request of the party to issue an Attendance Notice requiring a person, who is a non-party to the proceeding, to produce a stated document if satisfied that the party could require the production of the document under Subdivision 7A and the party has not made reasonable attempts, under Subdivision 7A, to obtain the document.
  1. [20]
    Rule 58(5) of the Tribunal Rules provides that an Attendance Notice[3], may only be directed to a single person.  Rule 58(6) of the Tribunal Rules provides that the name or designation by office or position of the person, to whom an Attendance Notice is directed to, must be stated in the notice before it is issued.
  1. [21]
    Relevantly, I note that the Attendance Notice in this matter was addressed to "The Proper Officer, Services Australia, Litigation and Information Release Branch, Legal Services Division".
  1. [22]
    Rule 59 of the Tribunal Rules provides for the requirements for the Attendance Notice to Produce. The requirement of the notice includes that it must adequately describe the document or thing which is sought to be produced and contain a notice that the person has the right to apply to the Court or the Commission to have the Attendance Notice set aside on any sufficient grounds.[4]
  1. [23]
    Rule 60 of the Tribunal Rules relevantly provides for the inspection of documents or things produced voluntarily or under an Attendance Notice in the following terms:

60 Inspection of document or things produced voluntarily or under attendance notice

  1. (1)
    This rule applies in relation to a document or thing produced to the court, commission or registrar, whether produced voluntarily or under an attendance notice.
  1. (2)
    The document or thing may be inspected by the court, commission or registrar.
  1. (3)
    The registrar may allow a party to the proceeding to inspect the document or thing unless 1 or more of the following persons objects to the inspection under rule 60A -
  1. (a)
    the person who produced the document or thing;
  2. (b)
    another party to the proceeding;
  3. (c)
    another person with a sufficient interest in the document or thing.
  1. (4)
    A person other than a party may inspect the document or thing only if -
  1. (a)
    the court or commission gives leave for the inspection; and
  2. (b)
    the inspection is in accordance with the leave.
  1. (5)
    Subrule (4) applies subject to rule 60A.
  1. (6)
    Information obtained from the document or thing must not be made public without the permission of the court, commission or registrar.
  1. (7)
    If the court, commission or registrar considers that part of a document does not relate to a matter in issue, the court, commission or registrar may order that the part be closed.
  1. [24]
    Rule 60A of the Tribunal Rules provides for a process in which the person producing the document or thing objects to it being inspected by a party to the proceeding.
  1. [25]
    Rule 60A(3) of the Tribunal Rules provides that if a party to the proceeding, or a person having a sufficient interest in the document or thing, objects to the document or thing being inspected by another person, the party or person may give the Registrar a written notice of the objection and of the grounds of the objection.
  1. [26]
    Rule 60A(5) of the Tribunal Rules provides that the party on whose behalf the Attendance Notice was issued, may, on reasonable notice to the person who gave the notice of the objection, apply to the Court or the Commission for a decision about the objection.
  1. [27]
    Rule 63 of the Tribunal Rules relevantly provides, if the person named in the Attendance Notice requiring production of the document is not a party to the proceeding, then production may be satisfied by an agent of the person named in the notice producing the document to the Court or the Commission.[5]
  1. [28]
    No objection was received by the Department of Human Services with the respect to the Attendance Notice issued in this proceeding, and the Industrial Registrar, ordered that the Appellant be granted permission to inspect the documents produced to the Registry on 1 March 2021.
  1. [29]
    As noted above, the procedure for issuing the notices of non-party production are dealt in Part 2, Division 2, Subdivision 7A of the Tribunal Rules.
  1. [30]
    Relevantly, r 64B of the Tribunal Rules provides that a party to a proceeding may, by Notice of Non-Party Production, require a person who is not a party to the proceeding ("the non-party"), to produce to the party, within 14 days, a document directly relevant to the matter in issue in the proceeding and in the possession or under the control of the non-party and that it is a document that a non-party could be required to produce at the hearing for the proceeding.
  1. [31]
    The non-party must comply with the notice, but not before the end of seven (7) days after service of the notice on the non-party.[6]
  1. [32]
    Rule 64C of the Tribunal Rules provides that, a Notice of Non-Party Production must state the matter in issue in the proceeding about which the document sought is directly relevant, be in the approved form and be served on the non-party.
  1. [33]
    Rule 64D of the Tribunal Rules provides that the party must serve a copy of the Notice of Non-Party Production on a person, other than the party and non-party, about whom the information is sought by the notice, and, if the party knows the non-party does not own a document required to be produced, the owner of the document. The name and address of anyone who must be served under r 64D must be written on the notice and all copies of the notice.[7]
  1. [34]
    Rule 64E of the Tribunal Rules provides that the non-party, or a person who has been served with a copy of the notice under r 64D, may object to the production of some or all of the documents mentioned in the notice within seven (7) days after its service with the leave of the industrial tribunal[8] at a later time.
  1. [35]
    The non-party, or a person who has been served with a copy of the notice under r 64D, may object to the production of some or all documents within the notice within seven (7) days for reasons[9] which may include, but are not limited to the following:
  1. (a)
    if the objector is the non-party—the expense and inconvenience likely to be incurred by the non-party in complying with the notice;
  1. (b)
    the lack of relevance to the proceeding of the documents mentioned in the notice;
  1. (c)
    the lack of particularity with which the documents are described;
  1. (d)
    a claim of privilege;
  1. (e)
    the confidential nature of the documents or their contents;
  1. (f)
    the effect production would have on any person;
  1. (g)
    if the objector was not served with the notice - the fact that the objector should have been served.[10]
  1. [36]
    An objection stays the operation of the notice.[11]
  1. [37]
    Section 64G of the Tribunal Rules provides that within  seven (7) days after service of an objection under r 64E, the party may apply to the industrial tribunal for a decision about the objection.
  1. [38]
    Rule 64H provides for the production and copying of documents produced under a Notice of Non-Party production as follows:

64H Production and copying of documents

  1. (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.
  1. (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.
  1. (3)
    The party may copy a document produced under this subdivision.
  1. [39]
    The above analysis of the relevant provisions within Part 2, Division 2, Subdivision 7 and Subdivision 7A of the Tribunal Rules identifies the processes and requirements for documents produced in accordance with an Attendance Notice to Produce differs from those required for a Notice of Non-Party Production. The differences between the two processes and requirements include, that while the procedures for Non-Party Production provides for the copying of documents produced in accordance with a Notice of Non-Party Production, there is no similar provision for the copying of documents produced in accordance with an Attendance Notice to Produce. Further, the Tribunal Rules identify that an Attendance Notice to Produce a document may be refused if the party could have required the production under Subdivision 7A (by making an application for non-party production), and, if the party has not taken reasonable steps, under Subdivision 7A, to obtain the documents.
  1. [40]
    In this proceeding, the documents which are the subject of the application, and which both parties wish to copy, are documents produced in accordance with an Attendance Notice to Produce, rather than a Notice of Non-Party Production.
  1. [41]
    As the Tribunal Rules do not provide for the copying of documents produced in accordance with an Attendance Notice to Produce, does the Commission have the power to issue orders that the documents be copied pursuant to s 451 of the IR Act?

The Regulator's submissions

  1. [42]
    On 27 May 2021, the Regulator filed further submissions which, in summary, contended that:
  1. (a)
    the Department of Human Services had previously advised representatives of the Regulator that it will not produce documents under a notice of non-Party disclosure, but will produce documents under an Attendance Notice, or, by order of a Court or Tribunal;
  1. (b)
    that r 60 of the Tribunal Rules does not prohibit copies of documents being made and provided to the parties by the Commission, it merely omits the inclusion of a power to enable this to occur, unlike the power provided in r 64H of the Tribunal Rules in relation to documents produced under notices of non-party production;
  1. (c)
    accordingly, the parties are able to rely on the general power provision of the IR Act contained in s 451 on the basis that, if s 451 of the IR Act is relied on as a source of  power to allow documents produced by the Department of Human Services to be photocopied, that, such a reliance does not "neutralise" r 60 of the Tribunal Rules;
  1. (d)
    in the alternative, the general rule is that where regulations (or in this case rules) have been made pursuant to an Act, the regulations or rules can not be used to interpret the provisions of the authorising Act:
  1. (e)
    in the further alternative, the authorities indicate that different approaches to the interpretation of such provisions is open in circumstances where the specific power is contained in the subordinate legislation and the general power is contained in the primary or authorising Act;
  1. (f)
    if the Commission is satisfied that there is an inconsistency between r 60 of the Tribunal Rules and s 451 of the IR Act, that the general power provision contained in the authorising Act should prevail;
  1. (g)
    the second alternative ground relied on is that s 451 of the IR Act provides the Commission with clear power to enable it to make an order directing that the Department of Human Services provide a copy of the relevant records directly to the Regulator; and
  1. (h)
    pursuant to its ongoing disclosure obligations, the Regulator confirms that it will disclose a copy of the records to Ms Wallace's representatives.
  1. [43]
    Despite orders providing that Ms Wallace may do so, Ms Wallace did not file and serve any additional material in response to the Regulator's application.  In any event, I have taken Ms Wallace's position to be, that she supports the application made by the Regulator on the basis that she also seeks copies of the documents.

The application of the Tribunal Rules

  1. [44]
    Given the submissions made by the Regulator with respect to the operation of the Tribunal Rules, it is necessary to consider how the Tribunal Rules are intended to apply.  In Quinlan v Rothwell,[12] His Honour, Thomas JA, in referring to the Uniform Civil Procedure Rules 1999 (Qld) ("UCPR") relevantly held:

There is now a consciousness of the need for some level of efficiency in the use of the courts as a public resource. That, of course, must not displace the need for reasonable access to the courts and the provision of justice according to law in each matter, but it highlights the fact that the former laissez faire attitude by courts towards the leisurely conduct of actions at the will of the parties has ended. At the same time the rules of court are not an end in themselves. They do not exist for the discipline of practitioners or clients, or for the protection of courts from inefficient litigants, but rather as a means of ensuring that issues will be defined in an orderly way and that parties have the opportunity of full preparation of their case before the trial commences. The rules also afford defendants the means of bringing to an end actions in which the other party will not abide by the rules.[13]

  1. [45]
    This passage has been cited with approval in decisions in both the Industrial Court of Queensland and the Queensland Industrial Relations Commission with respect to the operation of the Tribunal Rules.[14]
  1. [46]
    Rule 5 of the Tribunal Rules provides that the Tribunal Rules apply to a proceeding before a Court, Commission, a Magistrate or the Registrar.  Rule 6 relevantly states that, the purpose of the Tribunal Rules is to provides for the just and expeditious disposition of the business of, inter alia, the Commission at a minimum of expense.
  1. [47]
    Part 2, Division 2, Subdivision 7 and Subdivision 7A of the Tribunal Rules are each, respectively, modelled on provisions of the UCPR, namely, Chapter 11, Part 4, "Subpoenas", and, Chapter 7, Part 3, "Non-Party Disclosure".
  1. [48]
    In Leighton Contractors Pty Ltd v Western Metals Limited[15] ("Leighton Contractors"), Mackenzie J, in considering the use of subpoenas and non-party disclosure under the UCPR, relevantly held:
  1. [17]
    The distinct purposes of discovery and subpoena are reflected in numerous decisions (e.g. Burchard v MacFarlane ex parte Tindall; Commissioner for Railways New South Wales v Small; Waind v Hill and National Employers Mutual General Association (. Statements are to be found in some cases suggesting that a subpoena returnable at a date well in advance of trial is permissible (e.g. Lucas Industries Ltd v Hewitt; Greyhound Australia Pty Ltd v Deluxe Coachlines Pty Ltd. The courts in which these decisions were made had at that time no rules permitting discovery from non-parties (Kennedy Taylor) Vic (Pty Ltd) v Grocon Pty Ltd. The decisions are based on considerations of convenience, or perhaps inconvenience if it were otherwise, in the conduct of complex litigation in the absence of a procedure for obtaining documents of non parties [citations omitted].
  1. [18]
    On the other hand Kennedy-Taylor and J Boag & Son Brewing Ltd v CascadeBrewery Co Pty Ltd are examples of the reluctance of courts to recognise the use of a subpoena duces tecum in substitution for another available procedure when the purpose is to obtain production of documents in the pre-trial phase and unconnected with the hearing of an application. The mere fact that some of the documents, after inspection, will be used as evidence at trial does not qualify the case as one where a subpoena may be used [citation omitted].
  1. [19]
    Returning to the UCPR, the rules relating to subpoenas appear in ch 11, intituled "evidence". The rules relating to non-party disclosure are in ch 7, intituled "disclosure". This reflects the traditional difference between discovery and obtaining documents by subpoena.
  1. [49]
    Similarly, these principles were referred to in Adler v Khoo[16] in the following terms:

A subpoena which is sought to be used in circumstances which are inappropriate for a subpoena is an abuse of process. It is not appropriate to use a subpoena process where what is really intended is a non-party disclosure process in a prehearing or pre-trial phase. An attempt to use a subpoena for disclosure would be an abuse of process.

…

… what the plaintiff is really seeking to do impermissibly is by disclosure of the risk management file by the use of a subpoena when that was refused on the proper process against a non-party which was a non-party disclosure application. It’s clear that a subpoena cannot be used when the proper process is non-party disclosure which has already been refused in relation to those documents.

  1. [50]
    In Kelsey v Logan City Council & Ors,[17] after considering the decision in Leighton Contracts, Black IC summarised the relevant principles derived from Leighton Contractors as follows:

…

  1. (a)
    rules relating to non-party disclosure provide safeguards to a non-party. Where a deliberately prescriptive regime is provided for the obtaining of documents from a non-party, the question presents itself whether the intention was that those safeguards might be avoided by using a different procedure with requirements which are different, but which have some common features;
  1. (b)
    the courts are reluctant to recognise the use of a subpoena duces tecum in substitution for another available procedure when the purpose is to obtain production of the documents in the pre-trial phase, and unconnected with the hearing of an application;
  2. (c)
    if it is apparent that a request for a subpoena is being made where it is unconnected with a trial or hearing, it would be appropriate to exercise a discretion against issuing it;
  1. (d)
    the mere fact that some of the documents, after inspection, will be used as evidence at trial does not qualify the case as one where a subpoena may be used;
  1. (e)
    the rules do not disclose any intention that what is really non-party disclosure in the pre-trial phase may be obtained by issuing a subpoena to produce; and
  1. (f)
    any attempt to use a subpoena for the purpose of obtaining disclosure would be an abuse of process and if a subpoena were issued for that purpose, it would be liable to be set aside on that ground.
  1. [51]
    In this matter the documents that have been produced and which the parties seek to copy are a suite of documents relating to Ms Wallace's Medicare and PBS records.  The Regulator has properly indicated that it seeks the documents to assist it in the preparation for the appeal and that the receipt of the documents may lead to further lines of enquiry.[18]  It is clear that the documents are sought in the pre-trial phase for the purpose of discovery.  Accordingly, it is not appropriate for the documents to have been sought by way of an Attendance Notice to Produce.
  1. [52]
    The absence of a power authorising the copying of the documents in the pre-trial stage sought under the Attendance Notice to Produce reflects that traditional use of subpoena, that is, being a document produced for the purpose of the hearing.  Whereas, the provisions of the Tribunal Rules dealing with non-party discovery provide a process for the copying of such documents, on the basis that the documents are being sought for discovery.
  1. [53]
    In further support of the proposition that an Attendance Notice to Produce should not be used as an alternative to a Notice of Non-Party Production, is that r 58(2) of the Tribunal Rules provides a member of the Commission or Registrar with the discretion to refuse a request to issue an Attendance Notice to Produce requiring a person, who is a non-party to the proceeding, to produce a stated document, if satisfied that the party could require the production of the document under Subdivision 7A (by way of a notice of on-party discovery) and the party has not made reasonable attempts, under Subdivision 7A, to obtain the document.
  1. [54]
    It is clear from the above reasoning, that if an Attendance Notice to Produce a document were used for obtaining disclosure, it would be an abuse of process. It follows from this conclusion, that it would not be appropriate for the Commission to issue orders, in the exercise of its general powers pursuant to s 451 of the IR Act, for the documents to be copied in the circumstances, where the issuing of the Attendance Notice to Produce, is an abuse of process.
  1. [55]
    Further, I do not consider that it is appropriate to rely on s 451 of the IR Act in circumstances where there has been non-compliance with the Tribunal Rules.  This conclusion, however, is not necessarily fatal to the Regulator's application for copies of the documents.  In the circumstances of this matter, it may be appropriate to consider issuing the orders pursuant to r 226 of the Tribunal Rules, arising out of the non-compliance with the Tribunal Rules. I will consider this further below.

Effect of failure to comply with Tribunal Rules

  1. [56]
    Rule 226(1) of the Tribunal Rules provides that a failure to comply with the Tribunal Rules is an irregularity and does not of itself render a proceeding, document, step taken, or order made in a proceeding, a nullity.
  1. [57]
    Rule 226(2) of the Tribunal Rules provides that if there has been a failure to comply with the Tribunal Rules, then the Court, the Commissioner, a Magistrate or the Registrar may:
  1. (a)
    set aside all or part of the proceeding; or
  1. (b)
    set aside a step taken or order made in the proceeding; or
  1. (c)
    declare a document or step taken to be ineffectual; or
  1. (d)
    declare a document or step taken to be effectual; or
  1. (e)
    make another order that could be made under these rules; or
  1. (f)
    make another order dealing with the proceeding generally as the court, commission, magistrate or registrar considers appropriate.[19]
  1. [58]
    Rule 226(2) of the Tribunal Rules is in similar terms to r 371 of the UCPR.  In Collie v Edmunds,[20] Mackenzie J, when considering a matter involving non-compliance with the UCPR, relevantly held:
  1. [5]
    More fundamentally, r 371 provides that failure to comply with the rules is an irregularity and does not render a proceeding, document or step taken in a proceeding a nullity. Where it is alleged that there has been a failure to comply with the UCPR, setting aside a step pursuant to r 371(2)(c) is an available and more appropriate remedy. Where there has been non-compliance with the UCPR, the non-complying document or step is not ineffectual, in the absence of any additional complication, merely because the UCPR have not been complied with (Bates v Queensland Newspapers Pty Ltd [2001] QSC 83; New Asian Shipping Co Ltd v Omar Farooq Sultan [2005] QSC 228). There is no reason why, if there is a withdrawal of an admission without leave, it should not be treated as an irregularity, not an ineffectual step.
  1. [59]
    As noted above, seeking documents in the pre-trial stage by way of an Attendance Notice to Produce, rather than a notice of non-party disclosure is a potential abuse of process.  However, r 226 of the Tribunal Rules provides,  that a failure to comply with the Tribunal Rules is an irregularity and does not render, relevantly, a document, a step or order made in the proceeding, a nullity. The consideration of non-compliance with the relevant rules in Collie v Edmunds[21] indicates that where there has been non-compliance with the rules, the non-complying document or step is not ineffectual, in the absence of any additional complication, merely because the rules have not been complied with.[22]
  1. [60]
    In this matter, whilst it appears that an Attendance Notice to Produce was used for obtaining disclosure of documents, it was done in circumstances where:
  1. (a)
    representatives of the Regulator are of the belief that the Department of Human Services will not produce documents under a notice of non-party disclosure, but will produce documents under an Attendance Notice to Produce, or by order of a Court of Tribunal;
  1. (b)
    the Regulator has historically sought documents in the pre-trial phase by way of Attendance Notices to Produce;
  1. (c)
    the Department of Human Services has been served with the application and did not seek to be heard in relation to the orders sought; and
  1. (d)
    both parties seek copies of the documents as part of their respective preparation for the appeal.
  1. [61]
    For the reasons identified above, I consider it inappropriate to rely on the general powers of the Commission in s 451 of the IR Act to issue the orders sought by the Regulator. I do, however, consider it appropriate, in the circumstances of this matter, to make orders pursuant to r 226 of the Tribunal Rules that will give effect to the orders sought.  In my view, such orders are in keeping with the purpose of the Tribunal Rules set out in r 6 and on the basis that the use of the incorrect procedure was an irregularity and in the absence of any further complications.
  1. [62]
    By providing an analysis of Part 2, Division 2, Subdivision 7 and 7A, I have attempted to clarify any misapprehension regarding the scope of the Tribunal Rules with respect to the issuing of Attendance Notices to Produce and Notices of Non-Party Production.  The use of an Attendance Notices to Produce for the purpose of obtaining non-party discovery is potentially an abuse of process.  Any concern the Regulator may hold regarding the Department of Human Services reluctance to comply with a Notice of Non-Party Disclosure may be addressed by the procedures set out in r 64B(3) and r 64H of the Tribunal Rules.  Relevantly, r 64H provides that if the non-party does not produce the documents in accordance with r 64H(1), then the party may apply to the Industrial Tribunal[23] for an order seeking compliance or any other appropriate order.
  1. [63]
    In addition to the relevant circumstances of this matter referred to in paragraph [60] above, I am satisfied that in this proceeding the safeguards in r 64D of the Tribunal Rules have been substantially complied with and I accept the Regulator's submission as to the relevance of the documents. I will issue orders that the documents produced by the Department of Human Services be permitted to be copied. Given that the documents were produced to the Industrial Registry, the Regulator may seek to have the documents copied upon request made to the Industrial Registry.

Conclusion

  1. [64]
    For the foregoing reasons, I have concluded that the request for production of the documents from the Department of Human Services by way of an Attendance Notice to Produce, rather than a Notice of Non-Party Production to be a failure to comply with the Tribunal Rules.
  1. [65]
    Pursuant to r 226(1) of the Tribunal Rules, such a failure to comply with the Tribunal Rules is an irregularity and does not of itself render the production of the documents a nullity. Whilst such non-compliance my amount to an abuse of process and the production of the documents is liable to be set aside, I have determined not to do so on this occasion due to the unique circumstances giving rise to the application. Instead, I intend to issue a declaration that the production of documents be effectual, and grant orders permitting the Regulator to copy the documents produced.

Orders

  1. [66]
    I issue the following orders:
  1. Pursuant to r 226(2)(d) of the Industrial Relations (Tribunals) Rules 2011 (Qld), I declare that the production of the documents by the Department of Human Services produced pursuant to an Attendance Notice for Production on 1 March 2021 instead of a Notice of Non-Party Production to be effectual.
  1. Pursuant to r 226(2)(e) of the Industrial Relations (Tribunals) Rules 2011 (Qld), the documents produced to the Industrial Registry by the Department of Human Services pursuant to the Attendance Notice for Production may be copied by the Workers' Compensation Regulator.

Footnotes

[1] The description of the documents requested in the Attendance Notice to Produce was: "A full and complete copy of the Medicare Patient and PBS Histories in written or electronic form for a ten (10) year period immediately preceding receipt of this document pertaining to the Appellant - Vicki Ann Wallace (DOB 01/03/1957."

[2] Regulator's submissions filed 27 May 2021, [18].

[3] Other than an Attendance Notice for a compulsory conference.

[4] Sufficient grounds may  include, for example, that the document or thing is not directly relevant to the proceedings, privilege, oppressiveness or non-compliance with the Tribunal Rules: see r 59(b)(i)-(iv).

[5] Tribunal Rules, r 63(1) and (4).

[6]Tribunal Rules, r 64B(3).

[7] Tribunal Rules, r 64D(5).

[8] Pursuant to r 64A, industrial tribunal means – for a proceeding before the court – the court; or for a proceeding before the commission – the commission; or for a proceeding before the registrar – the registrar.

[9] Tribunal Rules, r 64E(1).

[10] Tribunal Rules, r 64E(4)(a)-(g).

[11] Tribunal Rules, r 64F.

[12] [2002] 1 Qd R 647.

[13] Ibid, [29].

[14] Quaedvlieg v Boral Resources (Qld) Pty Ltd (2005) 180 QGIG 1209, Hall P and Barnes v Q-Comp  Hatch Pty Ltd [2017] QIRC 025, O'Connor DP.

[15] [2001] 1 Qd R 261.

[16] [2010] QCA 360, [33] citing with approval passages of the decision at first instance.

[17] [2018] QIRC 108, Black IC, [47].

[18] Regulator's submission filed 27 May 2021, [11].

[19] Tribunal Rules, r 226(2)(a)-(f).

[20] [2006] QSC 343.

[21] [2006] QSC 343.

[22] Ibid, [5].

[23] As defined in r 64A of the Tribunal Rules.

Close

Editorial Notes

  • Published Case Name:

    Wallace v Workers' Compensation Regulator

  • Shortened Case Name:

    Wallace v Workers' Compensation Regulator

  • MNC:

    [2021] QIRC 277

  • Court:

    QIRC

  • Judge(s):

    Hartigan IC

  • Date:

    11 Aug 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Alder v Khoo [2010] QCA 360
2 citations
Jump To
Cite 1 - [2010] QCA 360
Cite 2 - [2010] QCA 360
Barnes v Q-Comp [2017] QIRC 25
1 citation
Jump To
Cite 1 - [2017] QIRC 25
Bates v Qld Newspapers P/L [2001] QSC 83
1 citation
Jump To
Cite 1 - [2001] QSC 83
Collie v Edmunds [2006] QSC 343
4 citations
Jump To
Cite 1 - [2006] QSC 343
Cite 2 - [2006] QSC 343
Cite 3 - [2006] QSC 343
Cite 4 - [2006] QSC 343
Goodwin v Phillips (1908) 7 CLR 1
1 citation
Jump To
Cite 1 - (1908) 7 CLR 1
Kelsey v Logan City Council & Ors [2018] QIRC 108
2 citations
Jump To
Cite 1 - [2018] QIRC 108
Cite 2 - [2018] QIRC 108
Leighton Contractors Pty Ltd v Western Metals Resources Limited[2001] 1 Qd R 261; [2000] QSC 27
2 citations
Jump To
Cite 1 - [2001] 1 Qd R 261
Cite 2 - [2001] 1 Qd R 261
New Asian Shipping Co Ltd v Omar Farooq Sultan [2005] QSC 228
1 citation
Jump To
Cite 1 - [2005] QSC 228
Quaedvlieg & Ors v Boral Resources (Qld) Pty Ltd (2005) 180 QGIG 1209
1 citation
Jump To
Cite 1 - (2005) 180 QGIG 1209
Quinlan v Rothwell[2002] 1 Qd R 647; [2001] QCA 176
3 citations
Jump To
Cite 1 - [2002] 1 Qd R 647
Cite 2 - [2002] 1 Qd R 647
Cite 3 - [2002] 1 Qd R 647

Cases Citing

Case NameFull CitationFrequency
Collins v Workers' Compensation Regulator [2023] QIRC 1053 citations
Peng v BAK10CUT Pty Ltd (No. 3) [2022] QIRC 1123 citations
Wylie v Workers' Compensation Regulator [2021] QIRC 3868 citations
1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.