Wissmann v Nugent[2022] QIRC 58

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

Reasons for Decision

Background

1. [1]
   Mr Frederick Nugent ('the Respondent') filed five Form 29 Notice of Non-Party Disclosures ('NNPD') on the following parties:

1. (a)
   Dr Salesh Dheda;

2. (b)
   Mr David Anderson – Recoverwise;

3. (c)
   Dr Paul Jip;

4. (d)
   Ms Virginia Corpus-McDermott; and

5. (e)
   Mr Yan Bo Li.

2. [2]
   Ms Annika Wissmann ('the Complainant') has objected to the five NNPDs as an affected party and submits that the documents sought lacks particularity, contains privileged and confidential information and are not relevant to matters at issue in the substantive proceedings before the Commission.

3. [3]
   The Respondent subsequently filed separate Form 4 Application in Existing Proceedings seeking orders to set aside the objections to the five NNPDs. Of the five applications, three applications were lodged out of time with respect to Dr Jip, Ms Corpus-McDermott and Mr Li. At the hearing of this matter, the Commission considered submissions from both parties and gave leave for extensions for the out of time Applications to be considered.

Relevant legislative framework

4. [4]
   Rule 64B of the Industrial Relations (Tribunals) Rules 2011 (Qld) ('the Rules') provides the following:

64B Notice requiring non-party production

3. (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

2. (b)
   in the possession or under the control of the non-party; and

3. (c)
   that is a document the non-party could be required to produce at the hearing for the proceeding.

3. (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.

3. (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.

3. (4)
   The requirement, under this rule, for a non-party to produce a document is not an ongoing duty.

5. [5]
   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.  

2. (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.

3. (3)
   The objection must -

1. (a)
   be written; and

2. (b)
   be served on the party; and

3. (c)
   if the person objecting (the objector) is not the non-party - be served on the non‑party; and

4. (d)
   clearly state the reasons for the objection.

4. (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;

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

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

4. (d)
   a claim of privilege;

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

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

7. (g)
   if the objector was not served with the notice - the fact that the objector should have been served.

6. [6]
   Rule 64F of the Rules provides:

64F Objection stays notice

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

7. [7]
   Rule 64G of the Rules provides:

64G Industrial tribunal’s decision about objection

1. (1)
   Within 7 days after service of an objection under rule 64E, the party may apply to the industrial tribunal for a decision about the objection.

2. (2)
   The industrial tribunal may make any order it considers appropriate including, but not limited to, an order—

2. (a)
   lifting the stay; or

2. (b)
   varying the notice; or

2. (c)
   setting aside the notice.

3. (3)
   Unless the industrial tribunal otherwise orders, each party to an application to decide an objection must bear the party’s own costs of the application.

8. [8]
   A number of principles relevant to the task of considering an objection to disclosure were identified in Weston and Parer v State of Queensland (Department of Justice and Attorney General) (No. 4):^[1]

[4] The case law relating to disclosure establishes a number of principles including the following which are relevant to the task confronting the Commission:

• A decision of the Commission to order disclosure is a quintessential exercise of discretion.
• To be discoverable a document must relate to the questions or issues to be decided by the proceedings.
• 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 inquiry which may have either of those consequences.
• A party will not be required to produce documents where to do so would be oppressive.
• A request for disclosure must not be in the nature of 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.
• Orders for disclosure should not be made for the purpose of enabling a party to attack credibility.

 Consideration

9. [9]
   The documents requested must be 'directly relevant' pursuant to r 64B(1)(a) of the Rules. As outlined above, the Complainant initially objected to the five NNPDs on the basis that the documents sought lacks particularity, contains privileged and confidential information and are not relevant to matters at issue in the substantive proceedings before the Commission. The Complainant modified her objections to three of the NNPDs and the Respondent particularised his requests at the hearing of this matter.

10. [10]
    In DP World Brisbane Pty Ltd v Rogers & Anor ('DP World'),^[2] 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.^[3]

11. [11]
    Rule 64B entitles a party to require, by a notice of non-party disclosure, production of a document which inter alia is directly relevant to a matter in issue in the proceedings in which the non-party could be required to produce at the hearing for the proceeding.

12. [12]
    The test is whether the documents are directly relevant to a matter in issue in the proceeding. In Mullins v Workers' Compensation Regulator; Ex parte Drake International Pty Ltd (No. 2),^[4] Black IC stated the following:

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) (UCPR) 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".^[5]

13. [13]
    The central issue in the substantive matter is whether the Respondent contravened ss 118 and 119 of the Anti-Discrimination Act 1991 (Qld). If the Complainant discharges her onus to prove that this occurred on the balance of probabilities, the matter of compensation will be considered. The documents sought relate to the issue of quantum rather than liability, with the Complainant outlining the costs associated with each treatment in her claim. Documents sought are relevant if they tend to prove or disprove matters relating to these issues. As the Complainant is seeking compensation specifically for the treatment received, documents relating to the time, cost, and nature of such treatment will generally be considered relevant.

Dr Salesh Dheda

14. [14]
    The Respondent is seeking documents from Dr Dheda from Chiropractix confirming the history of treatment and any diagnosis provided to the Complainant. The Respondent submits that the documents are relevant as he is of the understanding that a back injury pre-dated the alleged incident on 28 May 2020.

15. [15]
    The Complainant submits that documents held by Dr Dheda are privileged and confidential. I rely upon the reasoning in DP World in which President Martin J considered arguments relating to confidentiality and privacy and held the view that the risk to confidentiality must be tolerated in the interest of administration of justice. President Martin J considered that the mere fact that information might include 'private information' is insufficient grounds in law to justify the setting side of a NNPD.

16. [16]
    The same reasoning applies with respect to documents held by Dr Dheda in this matter, with the administration of justice outweighing the confidential nature of the documents.

17. [17]
    The Complainant submits that the claim for medical expenses associated with treatment for her back pain was because the back pain symptoms were a manifestation of her psychological injury. As I understand it, the Complainant does not assert that she suffered a physical injury during the alleged incident.

18. [18]
    I consider the treatment documents to be directly relevant to the issue of compensation in this matter. The Complainant is seeking to be compensated for the costs associated with treatment received from Dr Dheda and so documents relating to this treatment are relevant.

19. [19]
    The NNPD in its current form is not drafted in a satisfactory manner, is broad in scope, and will be difficult for the third party to respond to with respect to particular documents. Accordingly, I am of the view that the NNPD directed at Dr Dheda be varied to order disclosure of any documents, including notes and dates, relating to the Complainant's back injury within 14 days of this order.

Mr David Anderson – Recoverwise

20. [20]
    In the NNPD served upon Mr Anderson from Recoverwise, the Respondent sought information rather than documents relating to the dates of attendance, assessments, details of the referring doctor and other information.

21. [21]
    The Complainant sought physiotherapy treatment from Mr Anderson at Recoverwise and is seeking compensation for this treatment. The Complainant objects to the disclosure of documents from this provider on the basis that the documents are privileged and confidential.

22. [22]
    As noted above, the reasoning in DP World provides that the risk to confidentiality must be tolerated in the interest of administration of justice.

23. [23]
    The same reasoning applies as that of the Court in DP World with respect to documents held by Mr Anderson in this matter, with the administration of justice outweighing the confidential nature of the documents.

24. [24]
    The Complainant submits that the claim for medical expenses associated with treatment for her back pain was because the back pain symptoms were a manifestation of her psychological injury.

25. [25]
    I consider the documents to be directly relevant to the issue of compensation in this matter. The Complainant is seeking to be compensated for the costs associated with physiotherapy treatment received from Mr Anderson and so documents relating to this treatment are relevant to a matter in issue.

26. [26]
    The NNPD in its current form is not drafted in a satisfactory manner, is broad in scope, and will be difficult for the third party to respond to with respect to particular documents. Accordingly, I am of the view that the NNPD issued to Mr Anderson be varied to a direction that Mr Anderson disclose any documents, including notes and dates, relating to the Complainant's back injury within 14 days of this order.

Dr Paul Jip

27. [27]
    The Respondent's NNPD to Dr Jip outlined that he was seeking documents that could provide answers to particular questions. At the hearing, the Respondent indicated that he was seeking disclosure of any medical notes in the Complainant's file relating to a back injury or psychological injury.

28. [28]
    At the hearing, the Complainant indicated consent to the disclosure on the basis that it was limited to medical notes and dates relating to a back injury or psychological injury.

29. [29]
    I consider that disclosure of the Complainant's full medical file is unnecessary given the volume of material it is likely to contain which will be irrelevant to issues of liability or quantum.

30. [30]
    The NNPD in its current form is not drafted in a satisfactory manner, is broad in scope, and will be difficult for the third party to respond to with respect to particular documents. Accordingly, I am of the view that the NNPD to Dr Jip be varied to a direction to disclose any documents, including medical notes and dates, relating solely to the Complainant's back injury or psychological injury within 14 days of this order.

Ms Virginia Corpus-McDermott

31. [31]
    In the NNPD, the Respondent outlined that he was seeking documents that could provide answers to particular questions.

32. [32]
    Ms Corpus-McDermott of yoga studio, Movement Vitality ('the studio') sent a response to the Respondent indicating that she did not keep files on members beyond a basic profile and so could not provide the documents he was seeking.

33. [33]
    At the hearing, the Respondent confirmed that he is seeking documents relating to the Complainant's membership at the studio. The Respondent asserts that the dates upon which the Complainant became a member is relevant as her claim includes compensation for the membership fees for yoga classes on the basis that this treatment was a consequence of the alleged incident.

34. [34]
    The Complainant indicated at the hearing that she did not oppose the disclosure of documents confirming the date upon which she first joined the studio.

35. [35]
    I consider that the dates upon which the Complainant became a member of the studio are relevant to the claim for compensation.

36. [36]
    The NNPD in its current form is not drafted in a satisfactory manner, is broad in scope, and will be difficult for the third party to respond to with respect to particular documents. Accordingly, I am of the view that this NNPD be varied to a direction that Ms Corpus-McDermott disclose any documents, including computer records, confirming the dates of the Complainant's membership of the studio within 14 days of this order.

Mr Yan Bo Li

37. [37]
    In the NNPD, the Respondent outlined that he was seeking documents allowing him to make particular determinations relating to the dates, duration and reasons that the Complainant sought treatment.

38. [38]
    At the hearing, the Respondent confirmed that he is particularly seeking documents relating to the dates upon which the Complainant attended upon Mr Li for massage treatment. The Respondent asserts that the dates upon which the Complainant obtained treatment is relevant on the basis that the Complainant alleges that the treatment was required as a consequence of the alleged incident.

39. [39]
    The Complainant indicated at the hearing that she did not oppose the disclosure of documents confirming the dates upon which she obtained treatment from this provider.

40. [40]
    I consider that any documents in the possession of this practitioner to be relevant to the claim for compensation and so order that the NNPD be varied, given the ambiguity of the wording on the form, to order the disclosure of any documents in Mr Li's possession relating to the treatment of the Complainant including dates of treatment.

 Conclusion

41. [41]
    The parties are not legally represented in this matter and as such it is appropriate to make clear the undertaking that applies in these circumstances. The Harman^[6] undertaking is an implied undertaking that documents obtained as a result of a compulsory process such as this will only be used for the purposes for which they were disclosed and will not be used for a collateral or ulterior purpose. 

Orders

42. [42]
    I make the following orders:

1. The Notice of Non-Party Disclosure filed on 8 October 2021 issued to Dr Salesh Dheda be varied and Dr Salesh Dheda is directed to disclose any documents and electronic records, including notes and dates, relating to the Complainant's back injury within 14 days of this order.

2. The Notice of Non-Party Disclosure filed on 25 October 2021 issued to David Anderson be varied and David Anderson is directed to disclose any documents and electronic records, including notes and dates, relating to the Complainant's back injury within 14 days of this order.

3. The Notice of Non-Party Disclosure filed on 8 October 2021 issued to Dr Paul Jip be varied and Dr Paul Jip is directed to disclose any documents and electronic records, including medical notes and dates, relating to the Complainant's back injury or psychological injury within 14 days of this order.

4. The Notice of Non-Party Disclosure filed on 26 October 2021 issued to Virginia Corpus-McDermott be varied and Virginia Corpus-McDermott is directed to disclose any documents and electronic records confirming the dates of the Complainant's membership of Movement Vitality within 14 days of this order.

5. The Notice of Non-Party Disclosure filed on 28 October 2021 issued to Yan Bo Li be varied and Yan Bo Li is directed to disclose any documents and electronic records relating to the treatment of the Complainant's back injury, including dates of treatment, within 14 days of this order.