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James v Western Downs Regional Council[2021] QIRC 51

James v Western Downs Regional Council[2021] QIRC 51

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

James v Western Downs Regional Council  [2021] QIRC 051

PARTIES:

James, Mark

(Applicant)

v

Western Downs Regional Council

(Respondent)

CASE NO:

TD/2020/45

PROCEEDING:

Application in existing proceedings

DELIVERED ON:

11 February 2021

MEMBER:

Power IC

HEARD AT:

Brisbane

ORDER:

  1. Tara Medical Centre is to produce Ms Ivy Hite's medical records from 7 November 2017 until 7 November 2020 within 14 days of this Order.
  2. Tarcoola Aged Care Facility is to produce Ms Ivy Hite's progress notes and resident records from 7 November 2017 until 7 November 2020 within 14 days of this Order.

CATCHWORDS:

INDUSTRIAL LAW – APPLICATION IN EXISTING PROCEEDINGS – where there is an objection to a notice of non-party disclosure – direct relevance – whether description of documents lacking in particularity

LEGISLATION:

Industrial Relations (Tribunals) Rules 2011 (Qld), rr 64B, 64E, 64F and 117

CASES:

DP World Brisbane Pty Ltd v Rogers & Anor [2014] ICQ 10

Goldsmith v Sandilands [2002] HCA 31

Lawler v Workers' Compensation Regulator; Ex parte Council of the City of Gold Coast [2016] QIRC 87

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

Westsand P/L v Johnson [1999] QSC 337

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

APPEARANCES:

Mr Reitano of Counsel, instructed by Hall Payne Lawyers, for the Applicant

Mr Murdoch QC, of Counsel, instructed by McCullough Robertson, for the Respondent

Reasons for Decision

Background

  1. [1]
    The Applicant in the substantive proceedings, Mr Mark James ('the Applicant'), filed an Application in Existing Proceedings seeking an order lifting the stay of a Form 29 Notice of Non-Party Disclosure ('NNPD') that had been served on Tara Medical Centre ('TMC'). The Applicant also seeks an order requiring the production of documents held by the Tarcoola Aged Care Facility ('TACF') sought in a Form 32 and 32B Attendance Notice to Produce ('ANP') filed by the Applicant.
  1. [2]
    The Applicant submits that the documents sought are relevant to matters at issue in the substantive proceedings before the Commission, including whether there was a valid reason for the Applicant's dismissal.
  1. [3]
    The Western Downs Regional Council ('the Respondent') has objected to the NNPD as an affected party and the ANP as the nominated party. TACF is wholly owned by the Respondent.
  1. [4]
    The issue for determination in this proceeding is whether TMC is required to produce documents identified in the NNPD and whether TACF is required to produce documents identified in the ANP.
  1. [5]
    The parties filed written submissions in accordance with a directions order following which a hearing was held in the Industrial Relations Commission.

Relevant legislative framework

  1. [6]
    Rule 64B of the Industrial Relations (Tribunals) Rules 2011 (Qld) ('the Rules') provides the following:

64B Notice requiring non-party production

  1. (1)
    A party to a proceeding may, by notice of non-party production, require a person who is not party to the proceeding (the non-party) to produce to the party, within 14 days after service of the notice on the non-party, a document -
  1. (a)
    directly relevant to a matter in issue in the proceeding; and
  1. (b)
    in the possession or under the control of the non-party; and
  1. (c)
    that is a document the non-party could be required to produce at the hearing for the proceeding.
  1. (2)
    The party may not require production of a document if there is available to the party another reasonably simple and inexpensive way of proving the matter sought to be proved by the document.
  1. (3)
    The non-party must comply with the notice but not before the end of 7 days after service of the notice on the non-party.
  1. (4)
    The requirement, under this rule, for a non-party to produce a document is not an ongoing duty.
  1. [7]
    Rule 64E of the Rules provides the following:

64E Objection to production

  1. (1)
    The non-party, or a person who has been served with a copy of the notice under rule 64 D, may object to the production of some or all of the documents mentioned in the notice within 7 days after its service or, with the leave of the industrial tribunal, a later time.  
  1. (2)
    Also, another person who would be affected by the notice and who has not been served may object to the production of some or all of the documents mentioned in the notice at any time with the leave of the industrial tribunal.
  1. (3)
    The objection must -
  1. (a)
    be written; and
  1. (b)
    be served on the party; and
  1. (c)
    if the person objecting (the objector) is not the non-party - be served on the non‑party; and
  1. (d)
    clearly state the reasons for the objection.
  1. (4)
    The reasons 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.
  1. [8]
    Rule 64F of the Rules provides:

64F Objection stays notice

Service of an objection under rule 64E operates as a stay of the notice.

  1. [9]
    Rule 117 provides for the requirements for Attendance Notice to Produce:

117 Requirements for attendance notice to produce

An attendance notice requiring a person to produce a stated document or thing must—

  1. (a)
    adequately describe the document or thing; and
  1. (b)
    contain a notice, in the approved form, telling the person that the person has the right to apply to an Industrial Magistrates Court to have the attendance notice set aside on any sufficient grounds, including, for example—
  1. (i)
    the document or thing is not relevant to the proceedings; or
  1. (ii)
    privilege; or
  1. (iii)
    oppressiveness, including oppressiveness because substantial expense may be incurred that may not be reimbursed; or
  1. (iv)
    noncompliance with these rules.

Documents requested

  1. [10]
    The documents sought by the Applicant in the NNPD schedule of documents are described as 'Ivy Hite's medical records'.
  1. [11]
    The documents sought by the Applicant in the ANP are described as 'Ms Hite's progress notes and patient records'.
  1. [12]
    These documents will be referred to generally as 'medical records' encompassing the records and notes sought under both notices.

Objections

  1. [13]
    The Respondent objects to the documents being produced broadly on the following grounds:
  1. (a)
    the description of the documents sought lacks particularity;
  1. (b)
    the lack of relevance to the proceeding of the documents mentioned in the notices;
  1. (c)
    the confidential nature of the documents and their contents; and
  1. (d)
    the effect production would have on Ms Hite.

 Consideration

  1. [14]
    The documents requested from the TMC on the NNPD must be 'directly relevant' pursuant to rule 64B(a).  The documents requested from the TACF must be 'relevant' pursuant to rule 117.

 Lack of particularity

  1. [15]
    The Respondent submits that that the NNPD and ANP requests lack particularity as to description and date range of documents.
  1. [16]
    The affidavit of Catherine Ole, Health Services Manager, TACF,[1] confirms that an electronic clinical database, 'eCase', was introduced in July 2014. The Commission was advised in both written and oral submissions that the Applicant is content to limit the request for these records from July 2014 until the date of any Order. The issue of the appropriate timeframe with respect to relevance will be discussed below, however, I am satisfied that the time period has now been specified with sufficient particularity.
  1. [17]
    The Respondent relies upon the affidavit of Ms Ole in which Ms Ole states that there is voluminous material included in eCase progress notes and resident records respectively. Ms Ole also notes, however, that the amount of material varies significantly depending on the incidents or care involving a particular patient. There is no evidence to suggest that the material relevant to Ms Hite's eCase record is voluminous to such an extent that production of these records would be oppressive.
  1. [18]
    The request for production to both the TMC and TACF adequately identifies the documents sought by the Applicant. The TMC is requested to provide Ms Hite's medical records and the TACF is requested to provide Ms Hite's progress notes and patient records. In my view, there is unlikely to be ambiguity about what the description 'medical records' and 'progress note and patient records' entails.

Relevance

  1. [19]
    Rule 64B entitles the Applicant to require (by a NNPD) production of a document which is directly relevant to a matter in issue in the proceeding and which the non-party could be required to produce at the hearing for the proceeding. The requirement with respect to the ANP is for the documents to be relevant to an issue which might legitimately arise on a hearing of the matter in dispute.[2]
  1. [20]
    The High Court considered in Goldsmith v Sandilands,[3] that "evidence is relevant if it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding."[4] In consideration of the term 'direct relevance', Black IC considered in Mullins v Workers' Compensation Regulator; Ex parte Drake International Pty Ltd (No. 2):[5]

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".[6]

  1. [21]
    The Applicant submits that the records held by TMC and the TACF are relevant to the primary issue in the substantive matter; that is whether the Applicant engaged in the alleged assault and was lawfully dismissed by the Respondent. The complainant who made the allegation that the Applicant assaulted her was Ms Hite.
  1. [22]
    The Applicant points to material in evidence alleging that Ms Hite has a history of unusual behaviour and staff formed the view that Ms Hite had cognitive deficiencies.  In the report attached to the affidavit of Mark James,[7] the Investigator engaged to investigate the allegations states that he found Ms Hite to be a somewhat unreliable complainant who contradicted herself when recalling the incident. A letter from the Nurses and Midwifery Board of Australia ('NMBA') attached to the affidavit of Timothy Grellman,[8] states the following:

While the Board accepted that there may not be a formal diagnosis of dementia or cognitive impairment for IH as reported by the manager of the facility, the Board weighed this against IH's progress notes from Tarcoola Aged Care Facility for the period October 2019 to July 2020 which note that from November 2019 onwards there is consistent recording that IH appeared confused and on several occasions her presentation was recorded as 'delusional'.

  1. [23]
    The material in evidence suggests that the medical documents are not sought as part of an impermissible 'fishing exercise',[9] and that there is a reasonable basis for seeking the documents.
  1. [24]
    Ms Hite's medical records directly affect the assessment of her cognitive abilities, which is a matter in issue in the substantive proceeding. The medical records at both the TMC and TACF are directly relevant in proving or disproving the allegation that Ms Hite had a cognitive incapacity at the time the incident was alleged to have occurred.
  1. [25]
    I accept that the disclosure of Ms Hite's medical records will include some records that may not be directly relevant to the matter in question, such as primary contacts, financial details, and similar details. In my view, it would be oppressive to the TMC and the TACF to order that each record be searched in order to remove such details. I am satisfied that the implied undertaking attached to disclosure of this nature will ensure that these details will not used for any other purpose.[10] 
  1. [26]
    Although I am persuaded that the medical documents are directly relevant, I accept the Respondent's objections with respect to the timeframe requested by the Applicant. The amended timeframe spans a period of six years – from July 2014 to February 2021. The medical documents over the entire time period are not, in my view, relevant to the matter in issue.
  1. [27]
    The examination of Ms Hite's medical history with respect to her cognitive abilities may require access to medical records over a number of years, however, I am not of the view that six years of records will be directly relevant.
  1. [28]
    The Respondent relies upon Lawler v Workers' Compensation Regulator; Ex parte Council of the City of Gold Coast ('Lawler'),[11] to submit that documents relating to medical information about Ms Hite created after November 2019 are irrelevant to the matter in issue. The matter in Lawler can be distinguished on the basis that the document in issue related to an event that occurred after the relevant date of injury, and so was not relevant in determining whether the event contributed to causation of the injury. The matter in issue in this proceeding is the cognitive capacity of Ms Hite on a particular date, with medical evidence obtained after this date relevant given the nature of the alleged medical condition. The nature of cognitive impairment is that it usually occurs over a period of time and as such it may be that medical documents produced within a reasonable timeframe after the date can provide evidence as to Ms Hite's cognitive incapacity on the relevant date.
  1. [29]
    On the basis that the alleged incident was said to have occurred on 7 November 2019, medical records beyond the preceding two years are unlikely to be relevant. Evidence of cognitive incapacity more than two years prior to the alleged incident that is not referred to again in the preceding two years is unlikely to be of any probative value. Similarly, evidence of cognitive incapacity that first emerges over one year following the alleged incident is unlikely to be of any probative value. A reasonable timeframe over which medical records are likely to be directly relevant is up to two years prior and one year post the alleged incident, that is the period 7 November 2017 until 7 November 2020.

Confidential information

  1. [30]
    The Respondent objects to the disclosure of the medical documents based on the confidential nature of the documents.
  1. [31]
    In DP World Brisbane Pty Ltd v Rogers & Anor,[12] President Martin J outlined the principles to be considered with respect to claims of confidentiality:

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 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 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.[13]

  1. [32]
    The confidentiality of the document is somewhat protected following disclosure on the basis of implied undertakings. As noted in Westsand P/L v Johnson,[14] a party gaining access to a document pursuant to a NNPD is subject to an implied undertaking not to use it except for the purpose of the litigation.
  1. [33]
    I am not persuaded that the confidential nature of the documents sought outweighs the requirements that the administration of justice permits the Applicant to obtain documents directly relevant to a matter in issue.

General

  1. [34]
    I note that TACF have already produced the records sought on request from the NMBA, albeit for a shorter time period. I accept the Applicant's submission that the concerns noted in the affidavit provided by Ms Ole relate primarily to hard copy records. The amended date range of documents sought by the Applicant limits the records to the period in which eCase was in operation, that is, records that can be access electronically.
  1. [35]
    Similarly, TMC has also produced the records to the NMBA, again for a more limited time period. There is no evidence to suggest that an order for the medical centre to produce the medical records over a longer period is likely to be oppressive.
  1. [36]
    The production of the medical records within the timeframe is preferable to the alternative suggestions submitted by the Respondent. The medical documents will be more probative generally than the oral evidence of various care providers who have had variable interactions with Ms Hite over different time periods.

Conclusion

  1. [37]
    In consideration of the material available to me, I am satisfied that the medical records are directly relevant to a matter in issue in the substantive proceedings. Ms Hite's medical circumstances are relevant to a matter in issue in that they tend to prove or disprove claims relating to Ms Hite's cognitive capacity at the time an alleged incident occurred, with this incident forming the basis upon which the Applicant was dismissed.
  1. [38]
    The time period over which the medical records are directly relevant extends from 7 November 2017 to 7 November 2020.

Orders

  1. [39]
    I make the following orders:
  1. Tara Medical Centre is to produce Ms Ivy Hite's medical records from 7 November 2017 until 7 November 2020 within 14 days of this Order.
  1. Tarcoola Aged Care Facility is to produce Ms Ivy Hite's progress notes and resident records from 7 November 2017 until 7 November 2020 within 14 days of this Order.

Footnotes

[1] Dated 18 December 2020.

[2] DP World Brisbane Pty Ltd v Rogers & Anor [2014] ICQ 10 at [14].

[3] [2002] HCA 31.

[4] Ibid [2].

[5] [2020] QIRC 003.

[6] Ibid [28].

[7] Affidavit dated 4 June 2020

[8] Affidavit dated 13 November 2020.

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

[10] Westsand P/L v Johnson [1999] QSC 337.

[11] [2016] QIRC 87.

[12] [2014] ICQ 10.

[13] Ibid [18].

[14] [1999] QSC 337 at [14].

Close

Editorial Notes

  • Published Case Name:

    James v Western Downs Regional Council

  • Shortened Case Name:

    James v Western Downs Regional Council

  • MNC:

    [2021] QIRC 51

  • Court:

    QIRC

  • Judge(s):

    Power IC

  • Date:

    11 Feb 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
DP World Brisbane Pty Ltd v Rogers & Anor [2014] ICQ 10
3 citations
Jump To
Cite 1 - [2014] ICQ 10
Cite 2 - [2014] ICQ 10
Cite 3 - [2014] ICQ 10
Goldsmith v Sandilands [2002] HCA 31
2 citations
Jump To
Cite 1 - [2002] HCA 31
Cite 2 - [2002] HCA 31
Lawler v Workers' Compensation Regulator; ex parte Council of the City of Gold Coast [2016] QIRC 87
2 citations
Jump To
Cite 1 - [2016] QIRC 87
Cite 2 - [2016] QIRC 87
Mullins v Workers' Compensation Regulator; Ex parte Drake International Pty Ltd (No 2) [2020] QIRC 3
2 citations
Jump To
Cite 1 - [2020] QIRC 3
Cite 2 - [2020] QIRC 3
Weston v State of Queensland (Department of Justice and Attorney-General) (No. 4) [2016] QIRC 75
2 citations
Jump To
Cite 1 - [2016] QIRC 75
Cite 2 - [2016] QIRC 75
Westsand Pty Ltd v Trevor William Johnson [1999] QSC 337
3 citations
Jump To
Cite 1 - [1999] QSC 337
Cite 2 - [1999] QSC 337
Cite 3 - [1999] QSC 337

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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