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Wylie v Workers' Compensation Regulator[2021] QIRC 386

Wylie v Workers' Compensation Regulator[2021] QIRC 386

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

PARTIES: 

Wylie v Workers' Compensation Regulator [2021] QIRC 386

Wylie, Kenneth Andrew

(Applicant)

v

Workers' Compensation Regulator

(Respondent)

CASE NO:

WC/2021/65

PROCEEDING:

Application in existing proceedings

DELIVERED ON:

10 November 2021

MEMBER

McLennan 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 documents by Services Australia produced pursuant to an Attendance notice to produce instead of a Notice of non-party disclosure 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 Services Australia may be copied and provided to the Applicant upon request to the Industrial Registry. 

CATCHWORDS:

INDUSTRIAL LAW – PROCEDURE – application in existing proceedings – Applicant seeks electronic copy of documents produced under Attendance notice to produce – where Industrial Relations (Tribunals) Rules 2011 does not make provision for copying documents produced under an Attendance notice to produce – whether use of Attendance notice to produce for obtaining non-party discovery is an abuse of process – whether an order can be made allowing the Applicant to obtain a copy of the documents – consideration of whether the order sought should be made in the circumstances

LEGISLATION:

Industrial Relations Act 2016 (Qld) s 451

Service and Execution of Process Act 1992 (Cth) s 47, s 55

Industrial Relations (Tribunals) Rules 2011 (Qld) r 6, r 58, r 60, r 64B, r 64H, r 226

CASES:

Wallace v Workers' Compensation Regulator [2021] QIRC 277

Reasons for Decision

 Background

  1. [1]
    On 11 May 2021, Mr Kenneth Wylie (the Appellant) filed an appeal against a decision of the Workers' Compensation Regulator (the Appeal).
  1. [2]
    At the request of the Workers' Compensation Regulator (the Respondent),[1] the Industrial Registrar issued a Form 32B - Attendance notice to produce directed at 'The Proper Officer, Services Australia and Information Release Branch, Legal Services Div' (the Notice).[2]
  1. [3]
    The Notice sought production of:

A full and complete copy of the Medicare Patient and PBS Histories in written or electronic form for a five (5) year period immediately proceeding in receipt of this document pertaining to the appellant - Mr Kenneth Andrew Wylie (DOB 31/03/1981).[3]

  1. [4]
    After reading the Form 4 - Application in existing proceedings filed by the Respondent on 28 June 2021, the Industrial Registrar granted the Respondent permission to inspect the documents that had been produced to the Industrial Registrar under the Notice. That order was made on 2 July 2021 pursuant to r 60(3)(b) of the Industrial Relations (Tribunals) Rules 2011 (Qld) (the Rules).
  1. [5]
    On 28 September 2021, Mr Wylie filed a Form 4 - Application in existing proceedings seeking an electronic copy of the documents produced under the Notice (the Application). Mr Wylie seeks a copy of the documents rather than inspection as he and his representatives are located in Central Queensland.[4]
  1. [6]
    On 8 October 2021, I issued a Directions Order that required, inter alia, service of the Application and Directions Order on Services Australia and invited submissions to be filed and served in relation to the Application. I have decided not to approach the writing of this Decision by summarising the entirety of the parties' submissions but will instead refer to the parties' key positions in considering the questions to be decided.
  1. [7]
    The Application is the subject of this Decision and the questions to be decided are:
  • Can an order be made permitting Mr Wylie to obtain a copy of the documents produced under the Notice?; and if so -
  • In consideration of the circumstances, should an order be made permitting Mr Wylie to obtain a copy of the documents produced under the Notice?

Can an order be made permitting Mr Wylie to obtain a copy of the documents produced under the Notice?

  1. [8]
    Mr Wylie referred to the decision of Wallace v Workers' Compensation Regulator ('Wallace').[5] In Wallace, Industrial Commissioner Hartigan ordered that documents produced by the Department of Human Services to the Industrial Registry pursuant to a Form 32B Attendance notice to produce may be copied pursuant to r 226(2)(e) of the Rules.
  1. [9]
    Industrial Commissioner Hartigan thoroughly outlined and considered the relevant legislation in Wallace, a matter with an analogous set of circumstances to this Application. I agree with the reasoning in Wallace and will summarise the key findings as they relate to this Application below.
  1. [10]
    The need to consider whether an order can be made permitting a party to obtain a copy of documents produced under an Attendance notice to produce was effectively summarised in Wallace as follows:

 [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.

 [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.

 [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?[6]

  1. [11]
    The reasoning behind the conclusion that an Attendance notice to produce was misused as an alternative to a Notice of non-party disclosure was summarised in Wallace as follows (citations omitted):
  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. 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.[7]
  1. [12]
    In this proceeding, the Respondent agreed that Wallace supports this Application.[8] However, the Respondent submitted it is not open to the parties to seek records from Services Australia by way of Notice of non-party disclosure because:
  1. (i)
    the Department of Human Services is a Commonwealth entity; and
  1. (ii)
    as such, it is not subject to the jurisdiction of the Commission or the provisions of the Industrial Relations Act 2016 (Qld) or its subordinate legislation;
  1. (iii)
    the Service and Execution of Process Act 1992 (Cth) does not apply to notices of non-party production filed and served under the Industrial Relations (Tribunals) Rules 2011 (Qld).[9]
  1. [13]
    The Respondent referred to s 47 of the Service and Execution of Process Act 1992 (Cth) (SEPA) which prescribes:

In this Part:

"proceeding" means a proceeding in a tribunal in connection with the performance of an adjudicative function by the tribunal.

"subpoena" means a process that requires a person to do one or both of the following:

           (a)   to give oral evidence before a tribunal;

           (b)   to produce a document or thing to a tribunal;

but does not include a process that requires a person to produce a document in connection with discovery and inspection of documents.

"tribunal of issue", in relation to a process, means the tribunal by which the process was issued.

  1. [14]
    It is unclear how s 47 of SEPA supports the premise that it is not open to parties to seek records from Services Australia by way of Notice of non-party disclosure. The definition of "subpoena" indicates that a subpoena is different to a Notice of non-party disclosure because such a notice requires the production of a document in connection with discovery. Within pt 4 of SEPA, div 3 deals with 'Service of subpoenas in the performance of adjudicative functions' however, div 2 deals more generally with 'Service of initiating and other process related to adjudicative functions.'
  1. [15]
    Within div 2 of SEPA, s 55 relevantly provides:

Other process may be served in any part of Australia

            (1)   A process issued in a State, other than an initiating process or a subpoena, may be served in another State.

           (2)   Service on an individual must be effected in the same way as service of such a process in the place of issue.

           (3)   Service on a company or a registered body must be effected in accordance with section 9.

           (4)   Service on any other body corporate must be effected in accordance with section 10.

           (5)   Service on a body politic (for example, the Commonwealth or a State) must be effected in the same way in which process of the Supreme Court of the State in which service is to be effected may be served on the body politic.

  1. [16]
    There are further vagaries surrounding the Respondent's argument that because Services Australia is a Commonwealth entity, it is not subject to the IR Act or the Rules and therefore it is not open to the parties to seek records from Services Australia by Notice of non-party disclosure. The arguments presented by the Respondent in this regard are unclear. Nonetheless, I do not deem it necessary to evaluate the arguments in deciding this Application. As outlined in Wallace (citations omitted):

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 for an order seeking compliance or any other appropriate order.[10] 

  1. [17]
    Industrial Commissioner Hartigan proceeded to conclude that although the filing of an Attendance notice to produce rather than a Notice of non-party disclosure "is a potential abuse of process"[11] when seeking documents in the pre-trial stage, r 226(1) of the Rules provides that "A failure to comply with these rules is an irregularity and does not of itself render a proceeding, document, step taken or order made in a proceeding, a nullity."
  1. [18]
    Rule 226(2) of the Rules provides:
  1. (2)
    If there has been a failure to comply with these rules, the court, the commission, 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.
  1. [19]
    In accordance with r 226(2)(d) of the Rules, Industrial Commissioner Hartigan declared that the production of the documents by Services Australia produced pursuant to an Attendance notice to produce instead of a Notice of non-party disclosure was effectual. Further, it was ordered that the documents may be copied pursuant to r 226(2)(e) of the Rules.[12]
  1. [20]
    I agree with the reasons given in Wallace and conclude that an order permitting Mr Wylie to obtain a copy of the documents produced under the Notice can be given.

Should an order be made permitting Mr Wylie to obtain a copy of the documents produced under the Notice?

  1. [21]
    In this Appeal, an Attendance notice to produce has been used for obtaining the disclosure of documents in circumstances where:
  • The relevance of the documents to the Appeal are not in dispute;
  • Although Services Australia have been served with the Application and Directions Order inviting submissions, it did not express an objection to the Application;
  • The information contained in the records is the personal information of Mr Wylie and does not pertain to any other person;
  • Mr Wylie and his representatives are located in Gladstone; and
  • The Respondent has been able to attend the Industrial Registry for inspection of the documents as they are based locally. 
  1. [22]
    Mr Wylie submitted the Respondent had provided limited information regarding the contents of the inspected records.[13] I do not place much weight on this argument as the Respondent's outline of what it had provided Mr Wylie was quite extensive considering it was based on what presumably was notes taken down during the inspection.[14]
  1. [23]
    Rule 6 stipulates that the purpose of the Rules "is to provide for the just and expeditious disposition of the business of the court, the commission, a magistrate and the registrar at a minimum expense." In that regard, I agree with Industrial Commissioner Hartigan's view that:

… 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.[15]

  1. [24]
    In the circumstances of this Appeal, I will follow the reasoning in Wallace to give effect to the order sought, pursuant to r 226 of the Rules.

Conclusion

  1. [25]
    I have concluded that an Attendance notice to produce was misused. Pursuant to r 226(1) of the Rules, "a failure to comply with these rules is an irregularity and does not of itself render a proceeding, document, step taken or order made in a proceeding, a nullity."
  1. [26]
    For the reasons outlined above, I have determined to declare the Attendance notice to produce to be effectual pursuant to r 226(2)(d) and will grant an order permitting that a copy of the documents be produced to Mr Wylie in electronic form pursuant to r 226(2)(e) of the Rules.

Orders

  1. [27]
    I order accordingly:
  1. Pursuant to r 226(2)(d) of the Industrial Relations (Tribunals) Rules 2011 (Qld), I declare that the production of documents by Services Australia produced pursuant to an Attendance notice to produce instead of a Notice of non-party disclosure 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 Services Australia may be copied and provided to the Applicant upon request to the Industrial Registry. 

Footnotes

[1] Form 32 - Request for attendance notice, 24 June 2021.

[2] Form 32B - Attendance notice to produce, 24 June 2021.

[3] Ibid.

[4] Form 20 - Affidavit of Margaret Ann Esdale, sworn 27 September 2021, filed 28 September 2021, [4].

[5] [2021] QIRC 277.

[6] [2021] QIRC 277.

[7] [2021] QIRC 277.

[8] Respondent's Submissions, 26 October 2021, [3](a).

[9] Ibid [3](b).

[10] [2021] QIRC 277, 14 [62].

[11] Wallace v Workers' Compensation Regulator [2021] QIRC 277, 13 [59].

[12] Wallace v Workers' Compensation Regulator [2021] QIRC 277.

[13] Appellant's Submissions, 18 October 2021, [2].

[14] Respondent's Submissions, 26 October 2021, [2].

[15] Wallace v Workers' Compensation Regulator [2021] QIRC 277, 14 [61].

Close

Editorial Notes

  • Published Case Name:

    Wylie v Workers' Compensation Regulator

  • Shortened Case Name:

    Wylie v Workers' Compensation Regulator

  • MNC:

    [2021] QIRC 386

  • Court:

    QIRC

  • Judge(s):

    McLennan IC

  • Date:

    10 Nov 2021

Appeal Status

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

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