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Peng v BAK10CUT Pty Ltd (No. 3)[2022] QIRC 112

Peng v BAK10CUT Pty Ltd (No. 3)[2022] QIRC 112

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Peng v BAK10CUT PTY LTD & Anor (No. 3) [2022] QIRC 112

PARTIES:

Peng, Yu-Rong

(Complainant)

v

BAK10CUT PTY LTD

(First Respondent)

&

Yuan, Wenxin

(Second Respondent)

CASE NO:

AD/2019/107

PROCEEDING:

Application in existing proceedings

DELIVERED ON:

28 March 2022

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 WorkCover Queensland 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 WorkCover Queensland may be copied and provided to either party upon request to the Industrial Registry. 

CATCHWORDS:

INDUSTRIAL LAW – PROCEDURE – application in existing proceedings – respondents seek 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 parties to obtain a copy of the documents – consideration of whether the order sought should be made in the circumstances

LEGISLATION:

Human Rights Act 2019 (Qld) s 4, s 25

Industrial Relations Act 2016 (Qld) s 451

Industrial Relations (Tribunals) Rules 2011 (Qld) r 6, r 58, r 59, r 61, r 64E, r 64F, r 226

CASES:

DP World Brisbane Pty Ltd v Rogers & Anor [2014] ICQ 010

Peng v Bak10Cut Pty Ltd & Anor [2020] QIRC 115

Wallace v Workers' Compensation Regulator [2021] QIRC 277

Weston and Parer v State of Queensland (Department of Justice and Attorney-General) (No. 4) [2016] QIRC 075

Wylie v Workers' Compensation Regulator [2021] QIRC 386

Reasons for Decision

Background

  1. [1]
    On 10 October 2019, the Queensland Human Rights Commission referred to the Queensland Industrial Relations Commission a complaint made by Ms Yu-Rong Peng (the Complainant) against BAK10CUT PTY LTD and Wenxin Yuan (the Respondents).
  1. [2]
    I heard the matter on 7 - 9 October 2020.
  1. [3]
    On 22 April 2021, the Respondents filed a Form 4 - Application in existing proceedings seeking that the matter be reopened and to adduce further affidavit evidence (the Application to Reopen). My decision on the Application to Reopen was dismissed on appeal and the matter was returned to me on 21 February 2022 to rehear and decide.
  1. [4]
    On 22 February 2022, at the request of the Respondents,[1] I issued a Form 32B - Attendance notice to produce directed at WorkCover Queensland (the Attendance Notice).[2]
  1. [5]
    The Attendance Notice sought production of:

Any and all records, claims, reports, correspondence and/or notes (electronic or otherwise) regarding Yu-Rong Peng (Date of Birth 12 March 1990).[3]

  1. [6]
    On 25 February 2022, the Respondents filed a Form 4 - Application in existing proceedings (the Application) in which they seek:
  1. Pursuant to Rule 226(2)(d) of the Industrial Relations (Tribunals) Rules 2011 (Qld) that the Form 32B - Notice to Produce Documents issued to WorkCover Queensland be produced pursuant to an Attendance Notice to produce instead of a Notice of Non-Party Disclosure.
  1. Pursuant to Rule 226(2)(e) of the Industrial Relations (Tribunals) Rules 2011 (Qld) that the documents produced to the Industrial Registry by WorkCover Queensland may be copied and provided to the parties. 
  1. [7]
    On 3 March 2022, WorkCover Queensland provided the documents sought under the Attendance Notice to the Industrial Registry.
  1. [8]
    On 7 March 2022, I issued a Directions Order that required, inter alia, service of the Application and Directions Order on WorkCover Queensland 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. [9]
    The Application is the subject of this Decision and the questions to be decided are:
  • Can an order be made permitting the parties to obtain a copy of the documents produced under the Attendance Notice?; and if so -
  • In consideration of the circumstances, should an order be made permitting the parties to obtain a copy of the documents produced under the Attendance Notice?

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

  1. [10]
    In my decision of Wylie v Workers Compensation Regulator ('Wylie'),[4] I followed the decision of Wallace v Workers' Compensation Regulator ('Wallace').[5]
  1. [11]
    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. [12]
    Industrial Commissioner Hartigan thoroughly outlined and considered the relevant legislation in Wallace. I agree with the reasoning in Wallace and will summarise the key findings as they relate to this Application below.
  1. [13]
    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:
  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?[6]
  1. [14]
    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. [15]
    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"[8] 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. [16]
    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. [17]
    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.[9]
  1. [18]
    In this proceeding, the Respondents contend they have not engaged in an abuse of process because the decision of Wylie was brought to their attention, the re-opening matter remains on foot mid-trial and a sealed Attendance Notice was provided by the Industrial Registry.[10]
  1. [19]
    The Respondents could have proceeded to file a Notice of non-party disclosure in light of Wylie which was drawn to their attention but chose not to. Nevertheless, r 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.[11]

  1. [20]
    As in Wylie, I agree with the reasons given in Wallace and conclude that in the circumstances an order permitting the parties to obtain a copy of the documents produced under the Attendance Notice can be given.

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

Respondents' submissions

  1. [21]
    The Respondents rely upon the following reasons in support of the Application:[12]
  • the Application to Reopen stems from a change of lawyers and the identification of missing evidence;
  • the Respondents' case has been that the Complainant has not provided a truthful account of her interactions with the Second Respondent, that the Complainant was a consenting and willing participant and had other reasons to make her complaint;
  • the Complainant made a WorkCover claim that was rejected however related documents were not obtained or inspected by the Respondents' previous lawyers and the Complainant was not questioned about the claim at the Hearing; and
  • an order for copying would facilitate the efficient progress of this matter as well as allow an opportunity to provide the material to a psychiatrist for a further report to be relied upon.

WorkCover's submissions

  1. [22]
    By email dated 15 March 2022, WorkCover objected to releasing some of the documents and information to the Respondents, due to the highly sensitive nature of the matter (i.e., allegations relating to sexual assault and harassment).
  1. [23]
    WorkCover submits that some of the Complainant's personal information (e.g., home address, email and telephone contact details) should not be released to the Respondent for security reasons and that some information (e.g., medical consultations and treatments) is both personal and not relevant to the alleged assault events.[13]

Complainant's submissions

  1. [24]
    In submissions filed 16 March 2022, the Complainant firstly refers to r 64E of the Rules which permits a party that has been served with a Notice of non-party production to object to some or all of the documents sought. The Complainant drew the following reasons for objection contemplated by r 64E(4):

(b) the lack of relevance to the proceeding of the documents mentioned in the notice;

(c) the lack of particularity with which the documents are described;

(e) the confidential nature of the documents or their contents;

(f) the effect production would have on any person;

  1. [25]
    The Complainant then refers to r 64F which operates to stay a Notice of non-party production upon service of an objection.[14]
  1. [26]
    The Complainant objects to the Attendance Notice on the following grounds:
  • the Attendance Notice is premature as the proceedings have not been reopened, the scope is not defined, there is currently no fact in issue to which the documents would relate and "evidence is generally admissible only if it tends to prove a fact in issue or a fact relevant to a fact in issue";[15]
  • the sexual harassment claim constitutes an entirely separate matter to the WorkCover claim and the application, process and outcome to the WorkCover claim has no bearing or probative value to the Complainant's sexual harassment complaint or the Respondents' defence;[16]
  • the documents sought are not particularised but rather encompass any and all documents in the possession of WorkCover Queensland;[17]
  • the purpose of obtaining the documents is entirely speculative with reference to the Respondents' comment that the documents "may reveal other lines of inquiry" and is aimed at obtaining information which can be used to cross-examine the Complainant if the proceeding is re-opened and to bolster the Respondents' case;[18]
  • the Complainant provided information to WorkCover on the understanding that it would be confidential and it would be highly prejudicial to her wellbeing to have sensitive information relating to the sexual and distressing nature of her complaint released as the party she accuses has harassed her;[19]
  • the request for highly confidential therapy records (if any) ought to be seen as a fishing expedition, an intimidation tactic and an abuse of power;[20]
  • section 4(f) of the Human Rights Act 2019 (Qld) (the HR Act) provides that the Commission ought to interpret statutory provisions, to the extent possible that is consistent with their purpose, in a way compatible with human rights and s 25 provides that a person has the right:
  1. (a)
    not to have the person's privacy, family, home or correspondence unlawfully or arbitrarily interfered with; and
  1. (b)
    not to have the person's reputation unlawfully attacked.
  • the principles pertaining to disclosure generally as applied in Weston and Parer v State of Queensland (Department of Justice and Attorney-General) (No. 4)[21] and Peng v Bak10Cut Pty Ltd & Anor[22] are relevant considerations.

Respondents' submissions in reply

  1. [27]
    In reply to WorkCover's submissions, the Respondents submit:
  • an Attendance notice to produce can only be objected to by the person required to produce the document on the basis of the matters in r 59 of the Rules and the Attendance Notice remains valid unless set aside in full or part under r 61;
  • in DP World Brisbane Pty Ltd v Rogers & Anor, President Martin (as he then was) said (citations removed):

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.[23]

  • the fact that personal information was provided by the Complainant in the course of seeking WorkCover does not make it excisable and is not a valid claim of privilege nor does it mean that the documents are not relevant;[24]
  • the redaction of personal contact details (address, email, phone numbers) is not opposed as its often routine;[25]
  • in Weston and Parer v State of Queensland (Department of Justice and Attorney-General) (No. 4), Industrial Commissioner Fisher stated:

A document is relevant if it contains information which enables the party calling for production of the document to advance its own case or damage the case of their adversary or it is a document which may fairly lead to a train of enquiry which may have either of those consequences.[26]

  • the documents are relevant if they have any account or statement of events, any diagnosis, assessment referrals, medications or treatment, the complainant's history and any significant events because the Complainant has provided different accounts of her background to two psychiatrists relevant to the opinions of diagnosis which differ markedly and are central to the issues to be determined as to cause, her diagnosis and the 4% impairment alleged in dispute; and[27]
  • the Complainant's account, history, treatment and any medical consultations are relevant to the psychiatric evidence that the Respondents are seeking noting Dr Calder Potts is no longer available and a new report must be obtained.[28]
  1. [28]
    In reply to the Complainant's submissions, the Respondents submit:
  • the Complainant assumes the conversion of the Attendance Notice to a Notice of Non-Party Disclosure, however such an order has not been made;[29]
  • the proceeding is not finalised and a lawful interlocutory application is on foot - if an appeal need not be finalised as in Wylie and Wallace, this is no different;[30]
  • in DP World Brisbane Pty Ltd v Rogers & Anor, President Martin referred to Justice Munro's statement in Re Clerks' (Alcoa of Australia - Mining and Refining) Consolidated Award 1985 (citations removed):

A party will not be required to produce documents where to do so would be oppressive; or where the demand for production is a 'fishing expedition', in the sense that it is an endeavour not to obtain evidence to support a case, but to discover whether there is a case at all.[31]

  • the Respondents are defending allegations, not making them and the live issue of WorkCover Queensland arose from the complainant telling a psychiatrist briefed by her lawyers that her claim was rejected;[32]
  • correspondence and file notes are not confidential as of right as a valid claim to privilege and briefing an examiner, opinions as to condition and referrals are clearly relevant;[33]
  • oppressiveness applies to the person producing documents, not the complainant;[34]
  • the Respondents cannot identify by name a document they do not know as relevant to be produced;[35]
  • although the Complainant speculates the documents will be used for cross-examination on credit only, that does not displace the right to the documents;[36]
  • "As to credit, challenge to the complainants (sic) truth, motive, prior inconsistent statements, accounts to others, different accounts to experts are central to the issues, are not collateral, and not mere matters as to credit. Cross on relevant matters in issue is not prohibited";[37]
  • assertions of intimidation tactics and abuse of power are unfounded - seeking the documents is a legitimate and proper step in these types of matters;[38]
  • at [12] of her submissions, the Complainant concedes that WorkCover documents would be relevant in this type of matter;[39]
  • with respect to the HR Act, the Attendance Notice is lawful and therefore the HR Act provisions have no application here;[40]
  • nexus is not a legal term nor test, however the two complaints are intimately connected to the same workplace claims;[41]
  • the decision of Weston and Parer v State of Queensland (Department of Justice and Attorney-General) (No. 4)[42] "makes clear that credit matters of movement and activities not connected to the proceedings or issues are not released in that case, but they were clearly collateral (not the case here)";[43] and
  • the decision of Peng v Bak10Cut Pty Ltd & Anor[44] related to visa documentation which is usually unable to be obtained and is a collateral matter going purely to credit, unlike the matters here.[45]

Consideration

  1. [29]
    The relevant document is an Attendance notice to produce however the rules referred to by the Complainant pertain to a Notice of non-party production. It appears the Complainant is suggesting that the reasons for objection to a Notice of non-party production as prescribed by r 64E of the Rules are similarly applicable to objection of an Attendance notice to produce.
  1. [30]
    Although the rules applicable to an Attendance notice to produce do not prescribe potential reasons for objection, I acknowledge that the reasons articulated by the Complainant are nonetheless relevant and will proceed to consider each of those reasons.

Relevance

  1. [31]
    I consider the documents sought under the Attendance Notice to be relevant to the Application to Reopen for the reasons that follow.
  1. [32]
    Ultimately, the Respondents must convince me whether the proceeding should be reopened as well as whether and what evidence should be adduced. The Application to Reopen has come about because of a change in legal representation and the subsequent identification of missing evidence. The Respondents' new legal representatives have picked up on the mention of a WorkCover claim that was not inspected by the Respondents' previous representatives. 
  1. [33]
    The Respondents have also indicated that because of an alleged disparity between what the Complainant advised separate psychiatrists, the Respondents may need to provide the WorkCover material to an alternative psychiatrist for a further report to be relied upon. Further, a significant aspect of the Respondents' defence is the allegation that the Complainant has not provided a truthful account of her interactions with the Second Respondent and I find that the WorkCover documents may potentially be relevant to that defence or may alternatively support the Complainant's position.
  1. [34]
    The Complainant contends that the Attendance Notice is premature as the proceedings have not yet been reopened. However, for the reasons outlined above, I consider the documentation is relevant to my consideration of whether to reopen the proceedings and therefore should be provided for inspection prior to the hearing of the Application to Reopen. By extension, if the Respondents are successful in their Application to Reopen, the documentation may very well be relevant to a fact in issue of the substantive proceeding.
  1. [35]
    The Complainant appears to take issue with the speculation that the Respondents may use the documentation to cross-examine the Complainant and to bolster their case. Clearly that would be part of the reason why the documentation is sought and it does not displace the relevance of the documentation. Nevertheless, I note the Respondents' first hurdle is convincing me that the proceeding should be reopened and therefore that opportunity to cross-examine is only a possibility at this point in time.
  1. [36]
    Further, allegations with respect to the Attendance Notice constituting an intimidation tactic are unfounded - the request is completely legitimate in the circumstances in my view.
  1. [37]
    Finally, I note that the Respondents appear to have misinterpreted the Complainant's submission in arguing the Complainant had conceded the WorkCover documents would be relevant in this type of matter. On the plain reading of the Complainant's submission, there is no concession and I have not accepted the Respondent's argument in this regard.

Lack of particularity

  1. [38]
    Although the documentation sought is broad, I accept the Respondents can not know what exactly is contained within the WorkCover file. The Respondents have contemplated what may be in the file and I am satisfied on their submissions that if what is contemplated is contained therein, then those documents ought be provided to assist in my determination of the Application to Reopen.
  1. [39]
    Further, I accept the Respondents are endeavouring to obtain the documentation because it may be relevant and was not considered by previous legal representatives. The Respondents are defending serious allegations and to the extent that those documents may assist them in advancing or retracting their defences, I consider them relevant. On that basis, I reject that the Attendance Notice constitutes a fishing expedition.

Confidential nature

  1. [40]
    WorkCover's objection is based purely on the confidential nature of the documentation. I accept that the WorkCover material is personal and sensitive however so to is the anti-discrimination proceeding in which the Complainant has made allegations relating to sexual assault and harassment. Therefore, to the extent that the WorkCover documentation pertains to allegations of a sexual nature, I believe that is relevant and is of a similarly sensitive nature to the anti-discrimination matter before me.
  1. [41]
    Although the Complainant is correct in its submission that a WorkCover claim is a separate matter to an anti-discrimination complaint, the subject matter and the event giving rise to both are the same and therefore I find it more likely than not that there will be some relevant material contained within the WorkCover file.
  1. [42]
    Furthermore, WorkCover contends that details of medical consultations and treatments are personal and not relevant to the alleged assault events. However, clearly such evidence is relevant to a question of damages and indeed may go towards supporting the position of either party - not just the Respondents requesting the documentation.
  1. [43]
    Finally, WorkCover submits that some of the Complainant's personal information such as home address, email and telephone contact details should not be released to the Respondents for security reasons. WorkCover helpfully highlighted those personal details and I have identified that those details have already been disclosed to the Respondents as they form part of Exhibit 1 to the proceeding and are referred to multiple times therein. On that basis, I do not find there would be any need to redact this information as it is already readily available to the Respondents. Further or in the alternative, I have previously been informed that the Complainant is living in Taiwan and this would also seemingly negate the need to the redact previous personal information.
  1. [44]
    I appreciate that the nature of the information contained in the WorkCover file may be of a distressing nature and the Complainant submits that is because the party she accuses has harassed her. However, I do not see an issue in that documentation being disclosed to the Respondents if the Complainant stands by its truth. For example, if the sexual nature of the Complainant's disclosures against the Second Respondent is truthful then surely that information would already be within his knowledge.
  1. [45]
    I have taken note of s 25 of the HR Act and consider that in these circumstances, to the extent that the disclosure of the WorkCover documents interferes with the Complainant's "privacy, family, home or correspondence" it is justified in the interests of justice as it is relevant to a proceeding in which Respondents are defending serious allegations. In that regard I accept President Martin's comments in DP World Brisbane Pty Ltd v Rogers & Anor[46] as outlined at [28] above.

Effect of production

  1. [46]
    I agree with the Respondents' view that reference to effect of production is with respect to the entity producing the documentation, not the Complainant. WorkCover Queensland have already issued the Industrial Registry with the documentation. They will not be required to produce anything further and I therefore cannot draw any detrimental effect of production.
  1. [47]
    I accept that an order allowing for a copy of the documentation to be provided is the most efficient way to progress this matter and simply inspecting the documents would be of little utility in these circumstances.

Finding

  1. [48]
    For the reasons outlined above, I have concluded that the documents sought under the Attendance Notice are relevant to the Application to Reopen - and by extension, perhaps beyond. I reject the Complainant's arguments with respect to why the Attendance Notice should be set aside and contrary to WorkCover's objection I have concluded that the disclosure of sensitive material is justified in these circumstances.
  1. [49]
    I will follow the reasoning in Wallace and Wylie to give effect to the order sought, pursuant to r 226 of the Rules.

Conclusion

  1. [50]
    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. [51]
    For the reasons outlined above, I have determined to declare the Attendance Notice to be effectual pursuant to r 226(2)(d) and will grant an order permitting that a copy of the documents be produced to either party upon request to the Industrial Registry in electronic form pursuant to r 226(2)(e) of the Rules.

Orders

  1. [52]
    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 WorkCover Queensland 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 WorkCover Queensland may be copied and provided to either party upon request to the Industrial Registry. 

Footnotes

[1] Form 32 - Request for attendance notice, 21 February 2022.

[2] Form 32B - Attendance notice to produce, 22 February 2022.

[3] Ibid 3.

[4] [2021] QIRC 386.

[5] [2021] QIRC 277.

[6] Ibid.

[7] Ibid.

[8] Ibid 13 [59].

[9] Ibid.

[10] Respondents' Submissions, 10 March 2022, 3 [11].

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

[12] Respondents' Submissions, 10 March 2022.

[13] Email from WorkCover Queensland to the Industrial Registry, 14 March 2022 at 12:20pm.

[14] Complainant's Submissions, 16 March 2022, 2 [9].

[15] Ibid 2 [11](a).

[16] Ibid [11](d).

[17] Ibid [11](b).

[18] Ibid.

[19] Ibid [11](e).

[20] Ibid.

[21] [2016] QIRC 075.

[22] [2020] QIRC 115.

[23] [2014] ICQ 010, 6 [18].

[24] Respondents' Reply Submissions - WorkCover, 17 March 2022, 1 [2].

[25] Ibid.

[26] [2016] QIRC 075, 4 [4].

[27] Respondents' Reply Submissions - WorkCover, 17 March 2022, 1 [4].

[28] Ibid.

[29] Respondents' Reply Submissions - Complainant, 17 March 2022, 1 [2].

[30] Ibid [4].

[31] DP World Brisbane Pty Ltd v Rogers & Anor [2014] ICQ 010, 4 [14].

[32] Respondents' Reply Submissions - Complainant, 17 March 2022, 1 [5].

[33] Ibid [6].

[34] Ibid [7].

[35] Ibid [7].

[36] Ibid [8].

[37] Ibid.

[38] Ibid 2 [9].

[39] Ibid [10].

[40] Ibid [11].

[41] Ibid [13].

[42] [2016] QIRC 075.

[43] Respondents' Reply Submissions - Complainant, 17 March 2022, 2 [14].

[44] [2020] QIRC 115.

[45] Respondents' Reply Submissions - Complainant, 17 March 2022, 2 [15].

[46] [2014] ICQ 010, 6 [18].

Close

Editorial Notes

  • Published Case Name:

    Peng v BAK10CUT Pty Ltd & Anor (No. 3)

  • Shortened Case Name:

    Peng v BAK10CUT Pty Ltd (No. 3)

  • MNC:

    [2022] QIRC 112

  • Court:

    QIRC

  • Judge(s):

    Member McLennan IC

  • Date:

    28 Mar 2022

Appeal Status

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