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Smith v Workers' Compensation Regulator[2025] QIRC 105

Smith v Workers' Compensation Regulator[2025] QIRC 105

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Smith v Workers' Compensation Regulator [2025] QIRC 105

PARTIES:

Smith, Paul

(Appellant)

v

Workers' Compensation Regulator

(Respondent)

CASE NO:

WC/2023/11

PROCEEDING:

Application in existing proceedings

DELIVERED ON:

17 April 2025

DATE OF FINAL SUBMISSIONS:

Appellant's written submissions filed on 15 April 2024

Appellant's revised submissions filed on 24 April 2024

Written submissions of the State of Queensland (Queensland Health, Metro North Hospital and Health Service) filed on 13 May 2024

Written submissions of Mapien filed on 24 May 2024

Appellant's citation list filed on 23 August 2024

Written submissions of the State of Queensland (Queensland Health, Metro North Hospital and Health Service) filed on 10 April 2025

HEARING DATE:

7 August 2024

MEMBER:

Knight IC

HEARD AT:

Brisbane

ORDERS:

  1. Within 14 days, the State of Queensland (Queensland Health) to produce to Mr Smith a copy of Attachment N of the Mapien Report (Part 2), containing v 1 of the State’s redactions.

CATCHWORDS:

INDUSTRIAL LAW – APPLICATION IN EXISTING PROCEEDINGS – where applicant filed a notice of non-party disclosure – where nominated party objects to the notice of non-party disclosure – where applicant seeks a decision regarding objections pursuant to r 64G of the Industrial Relations (Tribunals) Rules 2011 (Qld)

LEGISLATION AND INSTRUMENTS:

Industrial Relations (Tribunals) Rules 2011 (Qld) r 64B, r 64E, r 64F and r 64G

Workers’ Compensation and Rehabilitation Act 2003 (Qld) s 279, s 280, s 549

CASES:

Boorman v State of Queensland (Department of Justice and Attorney-General) [2021] QIRC 062

Church v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 031

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

E v The Friends' School Inc [2014] TASWRCT 36

Friends' School v Edmiston [2014] TASSC 68

Harris v Caladine (1991) 172 CLR 84

Mercantile Mutual Custodians Pty Ltd v Village/Nine Network Restaurant & Bars Pty Ltd [2001] 1 Qd R 276

Mullins v Workers' Compensation Regulator; Ex parte Drake International Pty Ltd (No. 2) [2020] QIRC 3

National Employers' Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372

Robson v Engineering Pty Ltd [1997] 2 Qd R 102

Rubin v Bank of Queensland Ltd [2010] QSC 175

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

Xstrata Queensland Ltd v Santos Ltd [2005] QSC 323

APPEARANCES:

Dr S. Sherlock, agent for the Appellant in person

Mr B. McMillan of counsel, directly instructed by the Workers' Compensation Regulator

Mr J. McLean of counsel, directly instructed by Mapien Pty Ltd

Mr P. Zielinski of counsel, directly instructed by Mr B. Dwyer on behalf of McCullough Robertson, for the State of Queensland (Queensland Health)

Reasons for Decision

Introduction

  1. [1]
    On 2 February 2023, Mr Paul Smith filed a Workers' Compensation Appeal ('the Appeal') against a decision made by the Workers' Compensation Regulator ('the Regulator') in the Queensland Industrial Relations Commission pursuant to s 549 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld).
  2. [2]
    On 5 April 2024, Dr Susannah Sherlock ('Dr Sherlock'), who was appointed by Mr Smith as an agent to represent him in the substantive proceedings, filed a Form 29 – Notice of Non-Party Disclosure ('NNPD') seeking that Mapien Pty Ltd ('Mapien') produce documents prepared by Mapien for the State of Queensland ('the State'). 
  3. [3]
    The Documents comprise of two investigation reports, Mapien Report (Part 1) and Mapien Report (Part 2), in addition to correspondence between Mapien and the State 'in relation to the reports which is not within the reports'.[1]
  4. [4]
    Mapien was served a copy of the NNPD filed on 5 April 2024 and notified Mr Smith and the Commission of their objection to the production of documents on 10 April 2024 pursuant to r64E of the Industrial Relations (Tribunals) Rules 2011 ('the Tribunal Rules').[2] The State outlined its objection to the NNPD in its submissions dated 13 May 2024.[3]
  5. [5]
    Rule 63F of the Tribunal Rules provides that the service of an objection under r 64E of the Tribunal Rules operates as a stay of the notice. 
  6. [6]
    Dr Sherlock, on behalf of Mr Smith requested a decision from the Commission in respect of the objections, pursuant to r 64G of the Tribunal Rules.[4]
  7. [7]
    The parties filed submissions in accordance with a Directions Order whereafter a hearing was held to determine the issue.[5]
  8. [8]
    During the hearing, the State made several concessions which resulted in the Commission directing the State to disclose the Mapien Report (Part 1) and any attachments, to Mr Smith and the Workers’ Compensation Regulator.[6]
  9. [9]
    A further Order directed the State to provide a copy of the Mapien Report (Part 2) to the Commission to assist in its consideration of the direct relevance of matters dealt with in the investigation report, in so far as they are related to Mr Smith's Workers' Compensation proceedings.[7]
  10. [10]
    Consequently, this decision concerns the production of the balance of materials sought by Mr Smith, being the Mapien Report (Part 2) and the correspondence between Mapien and the State in relation to the investigation reports.

Relevant legislative framework and principles

  1. [11]
    The procedure for issuing an NNPD is outlined in Part 2, Division 2, Subdivision 7A of the Tribunal Rules.
  2. [12]
    Relevantly, r 64G of the Tribunal Rules provides the Commission the power to make any order it considers appropriate about an objection made to an NNPD:

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—
  1. (a)
    lifting the stay; or
  2. (b)
    varying the notice; or
  3. (c)
    setting aside the notice.
  1. (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.
  1. [13]
    Rule 64B of the Tribunal Rules confers upon the Complainant the right to require, through an NNPD, the production of a document that is, inter alia, directly relevant to a matter in issue in the proceedings. Specifically, it provides:

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
  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.
  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.
  2. (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.
  1. [14]
    Rule 64E of the Tribunal Rules provides for an objection to the production of documents requested under a Form 29 and outlines:

64E Objection to production

  1. (1)The non-party, or a person who has been served with a copy of the notice under rule 64D, 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.
  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;
  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.
  1. [15]
    Rule 64F of the Tribunal Rules provides that "Service of an objection under rules 64E operates as a stay of the notice."

The Requested Documents

  1. [16]
    It is not in contention that the Mapien Report (Part 2) dealt with complaints made by Dr Sherlock in late 2019 and 2020 about the MNHHS Integrity Unit, and relevantly, its Director, Ms Lisa Todd, in relation to the adequacy of her management and assessment of those complaints.[8]
  2. [17]
    Within the filed Form 29 – Notice of non-party disclosure,[9] Dr Sherlock has, in a table format, listed a series of stressors taken from Mr Smith’s SOFC about which the Mapien Report (Part 2) is said to be directly relevant, namely:[10]

Source of claim

Para/number

Mapien Report

Relevance

List of stressors

2

Report 2 (integrity actions)

Poor handling allowing reprisals to occur after the subjects became aware of the safety complaints

List of stressors

6

Report 2 (integrity actions)

Lack of job

Opportunity

List of stressors

7

Report 2 (integrity

actions)

Reputational harm

as reprisal

List of stressors

8

Report 1 and 2

Discriminatory rostering reported

as reprisal to Evexia

and Mr Buttrum

List of stressors

9

Report 2 (integrity actions)

Intimidation of Mr Smith’s wife to use unsafe gas management as reprisal despite concerns raised

with Mr Buttrum causing Mr Smith stress

List of stressors

16

Report 2

Integrity investigation of injury which was a PID and caused Mr Smith financial stress and reputational harm due to lack of work during illness and in recovery of illness whilst unable to work

RSOFC

Para 28 (d)(e)

Both reports

The incident is alleged to have caused an injury which was a PID.

Integrity unit

  1. [18]
    In determining whether the Mapien Report (Part 2) is directly relevant to the issues to be decided in the substantive proceedings, it is necessary that the Commission also consider the content and associated stressors set out in Mr Smith’s Statement of Facts and Contentions ('SOFC').
  2. [19]
    As best I understand, the stressors or events relied on in the substantive matter by Mr Smith about which the Mapien Report (Part 2) is said to be directly relevant, include:
  • Deficiencies in the steps taken by the MNHS Integrity Unit and in particular, Ms Todd, when responding to and assessing complaints raised by Dr Sherlock, which led to reprisal action against Mr Smith (Stressor 2), namely:
  1. Mr Smith being denied an opportunity to apply for a permanent role (Stressor 6);
  2. Reputational harm following a conclusion that 'the relationship between Dr Sherlock and Mr Smith was a causative factor in the gas incident (Stressor 7)';
  3. Conflict of Interest allegations and discriminatory rostering practices reported as reprisal action to Evexia and Mr Buttrum (Stressor 8);
  4. Safety concerns raised by Mr Smith’s wife [Dr Sherlock] led to the victimisation of Dr Sherlock, which in turn caused Mr Smith stress (Stressor 9);
  5. The actions of the Integrity Unit resulted in financial stress and reputational harm to Mr Smith due to a lack of work during his illness whilst unable to work (Stressor 16).
  1. [20]
    In later submissions, Dr Sherlock on behalf of Mr Smith relies on several other paragraphs within the Appellant’s Amended Statement of Facts and Contentions, namely [9], [49], [50], [55] and [57] as matters in issue (about which the Mapien Report (Part 2) is said to be directly relevant).[11]

The State’s Submissions

  1. [21]
    The State maintains the documents sought under the NNPD are not directly relevant and will not assist the Commission in the determination of any matter in issue within the substantive proceedings.[12]
  2. [22]
    It also argues that an investigation report cannot generally assist the Commission to determine the substantive matter as the report is an opinion of a third party.[13]
  3. [23]
    In response to Mr Smith’s reliance on paragraphs [9], [49], [50], [55] and [57] within the Appellant’s Amended Statement of Facts and Contentions, as matters in issue (about which the Mapien Report (Part 2) is said to be directly relevant) the State submitted:
  • The Report cannot shed light on the cause of Mr Smith’s medical condition, which can only be proved by his own evidence and expert evidence.[14]
  • References to events which occurred after the alleged injury are not relevant.[15]
  • Allegations in respect of other doctors remaining in their positions whilst under investigation are not allegations that fall within the scope of the Second Mapien Report.[16]
  • The circumstances of Mr Smith’s interaction with the Integrity Unit do not appear to be contested by the Regulator and further it is not clear in the SOFC’s as to whether the extent of his involvement resulted in an injury. Moreover, some of the events outlined by Dr Sherlock regarding Mr Smith’s involvement occurred after the date of injury and are therefore not relevant.[17]
  • Whether a fellow colleague, Dr Thistlethwaite, knew of Dr Sherlock’s public interest disclosures is not a matter in issue within the substantive proceedings.[18]
  1. [24]
    In response to Mr Smith’s request for the disclosure of correspondence between Mapien and the Department, the State submits Dr Sherlock has not articulated how these materials would be directly relevant to the substantive proceedings.[19]

Mapien's Submissions

  1. [25]
    Adopting the submissions of the State as summarised above in paragraphs [21] to [24],[20] Mapien maintains Mr Smith’s submissions 'do not disclose any cogent basis on which the Second Report or the correspondence could be said to be relevant, much less directly relevant, to a matter in issue in the substantive proceedings'.[21]
  2. [26]
    Mapien further contends it was engaged under contractual arrangements which require the organisation to ensure the content of the report is confidential. It is submitted the confidential character of the Mapien Report (Part 2) should weigh against any order considered by the Commission for disclosure.[22]

Mr Smith's submissions

Relevance to the substantive matter

  1. [27]
    On behalf of Mr Smith, Dr Sherlock maintains that following a series of events that took place in the workplace leading to Mr Smith's injury on 2 September 2021, Mapien were briefed by the State to investigate complaints made by Dr Sherlock, with the process and conclusions reflected in "Mapien Report Part One". Further complaints about the actions of the Department's Integrity Unit, are addressed within the "Mapien Report Part Two".[23]
  2. [28]
    Dr Sherlock submits that the Mapien Report is referenced in Mr Smith's SOFC and is therefore directly relevant to the substantive matter in issue.
  3. [29]
    Dr Sherlock further contends the Mapien Report (Part 2) encompasses an investigation into actions of the Integrity Unit, which she maintains led to Mr Smith being victimised by two colleagues over an extended period of time prior to 16 August 2021.
  4. [30]
    Furthermore, that:

The investigation is highly relevant to Mr Smith’s claim that his injury was not as a result of reasonable management action but in fact as a result of unlawful behaviours by multiple MNHHS employees after raising a safety issue whilst having applied for the role of Safety Director.[24]

And:

...the second report is necessary to demonstrate the point which is contention between the parties; was the psychosis due to reasonable management action as opposed to multiple reprisals due to the failure of Ms Todd to protect the discloser's husband from victimisation[25]

  1. [31]
    Additional written submissions on behalf of Mr Smith in support of the disclosure of the Mapien Report (Part 2) included:[26]
  1. 17)
    The Mapien report is mentioned in both the Applicant's SOFC and the Respondent's SOFC; making it directly relevant.
  2. 18)
    Actions against integrity are alleged in para 9,49,50,55 and 57. The failure of Integrity unit is alleged to have enabled Mr Smith to be victimised... over a protracted period under the incident on August 16th finally broke his hope of employment to ensure better safety in the unit.
  3. 19)
    The investigation into Dr Sherlock' concerns and the actions of Integrity Unity (Ms Todd) are directly relevant to the alleged causation of the injury.

Confidentiality

  1. [32]
    In response to the objection raised by Mapien in relation to confidentiality, Dr Sherlock submits the documents requested are not privileged and not protected by confidentiality under the PID Act, observing:

They are likely to cause the WCR to be persuaded to accept the injury and avoid further Tribunal expense in terms of time or legal fees.[27]

  1. [33]
    Dr Sherlock contends that withholding the requested documents would cause Mr Smith injustice and is against the principles of open justice.[28] Moreover, that disclosure is in the interests of fairness to Mr Smith and cannot be considered a 'fishing expedition'.[29]
  2. [34]
    Dr Sherlock, on behalf of Mr Smith, maintains it is in the public interest for the public to know that investigations into reprisals, which caused an injury, are investigated and not kept a secret.[30] Furthermore, Dr Sherlock submits that an order for disclosure would likely reduce unnecessary public expense in legal fees and resources.[31]

Consideration

  1. [35]
    Rule 64B entitles Mr Smith 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 substantive proceedings.[32]
  2. [36]
    The central issue for determination in the substantive matter is whether Mr Smith has sustained a psychological injury as defined in section 32 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld), where it arose out of or in the course of Mr Smith’s employment and as a result of one of more of the stressors identified in his Statement of Facts and Contentions; and if so, whether the injury is excluded on the basis of reasonable management action taken in a reasonable way.[33]
  3. [37]
    President Davis recently considered the concept of relevance in Mohr-Edgar v Legal Aid Queensland where he observed –

To be relevant, a document does not have to in itself prove the case of the party seeking production of it. It is sufficient if the document tends to prove or disprove an allegation in issue in the proceedings.[34]

  1. [38]
    In Mullins v Workers' Compensation Regulator; Ex parte Drake International Pty Ltd (No. 2), 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) (UCRP) which is that only directly relevant documents must be disclosed. In this request, 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".[35]

  1. [39]
    Fisher IC in Weston and Parer v State of Queensland (Department of Justice and Attorney General) (No. 4)[36] outlined the following principles which are relevant to consider when determining an objection:

[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.[37]
  1. [40]
    Documents sought are relevant therefore, subject to the caveats in r 64B, if they tend to prove or disprove questions or issues to be determined in the substantive proceedings.
  2. [41]
    As previously touched on in paragraphs [8]-[10], the Mapien Report (Part 1), including annexed transcripts of interviews and statements, has already been disclosed to Mr Smith. The matters contained within the Mapien Report (Part 2) largely mirror those outlined within the Mapien Report (Part 1), except for additional content and materials regarding Ms Todd’s management and assessment of various Complaints made by Dr Sherlock.
  3. [42]
    Having established that all documents annexed to the Mapien Report (Part 2) have been previously disclosed in the Mapien Report (Part 1), it is consequently only necessary to assess the relevance of the findings contained within the report itself and the attachments related to Ms Todd, rather than the remaining attached documents, which have already been disclosed.
  4. [43]
    The following allegations,[38] represent the scope and matters considered within the Mapien Report (Part 2)[39]:

Allegation 1: In your role as the Director of the Integrity Unit, MNHS, you oversaw an inadequate investigation into a complaint that had been made by Dr Sherlock in November 2019. The complaint was in relation to the conduct of Dr Robert Webb towards a former registrar, Dr Yena Hwang. The alleged inadequacies:

  1. You did not actively supervise an investigation into the abovementioned matter to ensure that it was conducted in a timely way. The investigation took approximately 10 months, and the outcome was not reported to Dr Sherlock until approximately 15 months after she had made the complaint, which is alleged by Dr Sherlock to have been an excessive delay.
  1. Incorrect findings were made because you did not actively supervise the investigation to ensure that all reasonable enquiries were made. The report finding which is said to be incorrect is the finding that the allegation against Dr Webb was unsubstantiated.

Allegation 2: You failed to assess Dr Sherlock as a public interest discloser in relation to the following matters:

  1. The alleged failure of Drs Webb and Thistlethwaite to follow the appropriate recruitment process in relation to the appointment of Robert Campbell, Hyperbaric Technical Officer, Hyperbaric Medicine Service.
  1. The alleged misuse of Dr Webb's authority and/or threatening to cause a detriment to Dr Sherlock by preventing her being credentialled to the Hyperbaric Medicine Service following her transfer out of that area.
  1. An alleged reprisal by Dr Thistlethwaite in relation to imposing a requirement on Dr Sherlock to complete a conflict of interest form.
  1. An alleged reprisal by Dr Thistlethwaite by changing rosters to prevent Dr Sherlock and her spouse working together.
  1. An alleged reprisal by Drs Webb and Thistlethwaite by making adverse comment at a farewell party about Dr Sherlock’s leaving of the Hyperbaric Medicine Service.

Report content - Allegation 1

  1. [44]
    Allegation 1 pertains to the management of a complaint by the Integrity Unit, under the direction of Ms Todd. This allegation specifically relates to the handling of the complaint regarding the alleged conduct of Dr Webb towards Dr Hwang, a Registrar.
  2. [45]
    When questioned on the relevance of Allegation 1(a) during the proceedings, Dr Sherlock submitted:

Because of the inadequate protection given to the discloser – disclosure, which led to repercussions for me, personally, as Mr Smith's spouse. So for Mr Smith to see that I was left in the workplace – when I made my public interest disclosure, I requested integrity consider transferring me out of the unit for protection, given it was a small unit, the disclosures were against my two directors immediately above me, and at – from – I – there was no response to that. I was never given a support person, as is required under the legislation, or the Queensland Health Policy, and I was left in the unit. Anyone close to me, from that point on, was a victim of reprisal, including Dr [Hwang], who questioned, also, some of the things that were going on. And then she personally – and I went back and I added Dr [Hwang]'s thing to what I'd already said, which were all the other things I'd disclosed.

So I actually went back to integrity and said I'd like to add this, because now my registrar has also been threatened. Had I not been in the unit, Dr [Hwang] wouldn't have been, you know, my – the inadequate protection given to me affected other people as well. Mr Smith was working in the unit, and he saw how I was being – I was being targeted, Dr [Hwang] was bring targeted, there were other people in the unit that were being targeted, and that would never have happened if the integrity unit had taken my request to be protected right from the onset when I made the public interest disclosure.[40]

  1. [46]
    Dr Sherlock maintains that Allegation 1 contained within the Report is relevant to the substantive matter in that she holds the view that it has been accepted by a relevant tribunal that an employee can suffer an injury when they watch someone else being persecuted in the workplace. In support of this position Dr Sherlock cites Friends' School v Edmiston [2014] TASSC 68, which dismissed an appeal following the decision in E v The Friends' School Inc [2014] TASWRCT 36.[41]
  2. [47]
    After reviewing the 'List of Stressors' filed by and relied on by Mr Smith in the substantive matter, the relevant paragraphs of the SOFC cited in Mr Smith's submissions, and the additional table in the NNPD (insofar as it purportedly addresses relevance), I am not persuaded the Mapien Report (Part 2), and the content related to Allegation 1, is directly relevant.
  3. [48]
    In Xstrata Queensland Ltd v Santos Ltd & Ors, McMurdo J drew a distinction between direct and apparent relevance as follows:
  • "A document is directly relevant in this sense only if it tends to prove or disprove an allegation in issue in the proceedings";[42]
  • Apparent relevance means "that the documents must 'relate to the subject matter of the proceedings', a relatively undemanding requirement".[43]
  1. [49]
    At its highest, Allegation 1 in the Mapien Report (Part 2) may satisfy apparent relevance, as there is a slight nexus to events involving Dr Sherlock and Mr Smith. However, the content does not directly relate to the events outlined in Mr Smith’s SOFC or his list of stressors, and as such, the connection is weak and certainly cannot be characterised as directly relevant.
  2. [50]
    When assessing an NNPD, the Commission must be satisfied that the higher standard of relevance—direct relevance—is met.
  3. [51]
    In Robson v REB Engineering Pty Ltd, Demack J considered the term "directly relevant":

My opinion is that the word “directly” should not be taken to mean that which constitutes direct evidence as distinct from circumstantial evidence. Rather, “directly relevant” means something which tends to prove or disprove the allegation in issue.[44]

  1. [52]
    The section of the Mapien Report (Part 2) that relates to Allegation 1 does not meet this threshold, therefore, there is no requirement that this section of the report be disclosed. 

Report Content - Allegation 2

  1. [53]
    An important distinction between Allegation 1 and Allegation 2 in the Mapien Report (Part 2) is that Allegation 1 concerns an 'inadequate investigation into a complaint made by Dr Susannah Sherlock in November 2019.'[45] In contrast, Allegation 2 does not assess the events listed at (a) – (e) from the standpoint of the adequacy of any investigation conducted by Ms Todd. Instead, Allegation 2 is narrowly focused on the alleged failure of Ms Todd to assess Dr Sherlock as a public interest discloser in relation to the matters outlined at (a) – (e).
  2. [54]
    After reviewing the scope of the report and the factors relied on by Mr Smith as being relevant to the determination of the NNPD, it is my understanding that other than the complaints about alleged deficiencies in the management of the complaints by Ms Todd, which it is claimed led to reprisal action against Mr Smith, the nominated workplace stressors primarily relate to substantive complaints,[46] rather than any alleged deficiencies in failing to assess Dr Sherlock as a public interest discloser in relation to the issues outlined at Allegation 2(a)-(e),  Mapien Report (Part 2).[47]
  3. [55]
    For example, Stressor 6, as best I understand, relates to Mr Smith being subjected to discrimination and denied a permanent job opportunity in circumstances where it is alleged that Drs Webb and Thistlethwaite failed to follow the appropriate recruitment processes when extending the temporary appointment of one of Mr Smith’s colleagues.
  4. [56]
    It is the alleged failure of Drs Webb and Thistlethwaite in not following the appropriate recruitment process and the lack of action taken in the wake of Dr Sherlock’s complaints to the Integrity Unit and not any failure of Ms Todd to assess Dr Sherlock as a public interest discloser in relation to that matter, that is the subject of Stressor 6.[48]
  5. [57]
    With respect to the oral submissions made by the State during the Hearing, Mr Zelinski stated the following in relation to Stressor 6:

What’s being attacked is the substantive complaint vis-à-vis Mr Campbell, not how it was investigated, and you’ll see that again and again if you go through the stressors. And even today Dr Sherlock again has made the point that I’m making, that it’s really not so much about any stressor – sorry – it’s not so much about the investigation being a stressor itself, it’s that it led – some lack of action led to other stressors occurring.[49]

  1. [58]
    In oral submissions Mapien also reinforced this point. On behalf of Mapien, Mr McLean stated:

There is no allegation in the statement of – in the list of stressors, rather, about Ms Todd. None at all.[50]

  1. [59]
    This distinction is important because it explains why Allegation 2, other than evidence which impacts an assessment as to whether deficiencies in the handling of Dr Sherlock’s complaints by the Integrity Unit resulted in ongoing reprisal action against Mr Smith, cannot be said to be relevant to the identified stressors at paragraph [17].
  2. [60]
    The mere fact that the Mapien Report (Part 2) – Allegation Two, references or refers to events involving Dr Sherlock or Mr Smith, which are mentioned in his SOFC and, to a limited extent, in his List of Stressors, does not render the Report directly relevant.
  3. [61]
    This is because the Mapien Report (Part 2) in relation to Allegation Two is not an investigation into the events themselves, but rather an enquiry into the alleged failure of Ms Todd to classify Dr Sherlock as a public interest discloser in relation to those complaints.
  4. [62]
    The only aspects of the Mapien Report (Part 2) that could be deemed relevant to Mr Smith’s stressors are certain interview records or statements appended to the report. However, as noted in paragraph [41], the appended documents in the Mapien Report (Part 2) largely mirror those in the Mapien Report (Part 1), apart from three documents related to the investigation into Ms Todd’s actions and an updated version of Annexure H, titled 'Master List of Documents.'
  5. [63]
    Mr Smith already possesses copies of the annexed documents, with the exception of the aforementioned additional appended documents.
  6. [64]
    Separately, any opinion or conclusions of the investigator in the Mapien Report (Part 2) could not shed light on the alleged events themselves, particularly where the scope of the report in respect of Allegation 2, was confined to determining whether Ms Todd had properly assessed Dr Sherlock as a public interest discloser in relation to the various complaints listed at 2(a)-(e).
  7. [65]
    In any case, Dr Sherlock, on behalf of Mr Smith has not provided any explanation as to how the opinion of a third-party investigator could prove or disprove an allegation in issue in the substantive proceedings.
  8. [66]
    A Workers’ Compensation appeal before the Commission is a hearing de novo.
  9. [67]
    In Church v Simon Blackwood (Workers' Compensation Regulator),[51] Martin P clarified the nature of a hearing de novo. His Honour cited the following remarks by Dawson J:

The parties commence the application again ... A hearing de novo involves the exercise of the original jurisdiction and 'the informant or complainant starts again and has to make out his case and call his witnesses.' [52]

  1. [68]
    The minutiae of the findings of a third-party investigative report has no bearing whatsoever on the determination of this substantive appeal.
  2. [69]
    In Boorman v State of Queensland (Department of Justice and Attorney-General) McLennan IC considered the relevance of an investigative report in a NNPD application:

The views of an investigator have no relevance to the appeal. The Commission must find its own facts and draw its own conclusions from those facts.[53]

  1. [70]
    How Ms Todd’s actions were assessed, according to a third-party investigator, cannot assist the Commission in its determination within the substantive proceedings.
  2. [71]
    Instead, it is the Commission's role to determine the facts independently, and any reliance on the findings in the Mapien Report (Part 2) would not, in and of itself, constitute evidence of the reasonableness, or lack thereof, of the management action taken in relation to Mr Smith.

Conclusion

  1. [72]
    For the reasons above, with the exception of Attachment N, which contains Lisa Todd’s written response in respect of the processes she followed when responding to Dr Sherlock’s complaints, I find that the contents of the report pertaining to both Allegations 1 and 2 are not directly relevant and, as such, do not require disclosure.

Confidentiality

  1. [73]
    As detailed in paragraph [26], Mapien made submissions with respect to confidentiality, stating:

Mapien observes that, consistent with the sensitive nature of the underlying investigation, the contractual arrangement pursuant to which Mapien was engaged to prepare the Second Report requires Mapien to keep the content of the report confidential. This confidential character of the Second Report weighs against an order that it be disclosed.[54]

  1. [74]
    I have also considered Mr Smith's submissions regarding confidentiality, as referenced in paragraphs [32]-[34]. 
  2. [75]
    In DP World Brisbane Pty Ltd v Rogers & Anor, 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 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.[55]

  1. [76]
    The reasoning in DP World therefore provides that the risk to confidentiality must be tolerated in the interest of the administration of justice. An order for production is unlikely to be refused on the basis of confidentiality alone.
  2. [77]
    The confidentiality of the document is also somewhat protected following disclosure on the basis of implied undertakings. As noted in Westsand P/L v Johnston,[56] a party gaining access to a document pursuant to a NNPD is subject to an implied undertaking to not use documents obtained for a purpose other than for which those documents were provided. This implied undertaking includes not using documents obtained as a result of compulsory disclosure in any other legal proceedings. The purpose of the undertaking is to prevent documents produced under such processes from being used for "collateral or ulterior purpose[s]".[57]
  3. [78]
    Accordingly, Mr Smith is subject to the implied undertaking, and his (or his agent’s) use or reference to Attachment N of the Mapien Report (Part 2) is limited to the present matter.
  4. [79]
    On this basis, and having weighed the submissions regarding confidentiality, I am satisfied that the interests of justice generally prevail over concerns regarding confidentiality. It follows, subject to consideration of further submissions below in respect of specific redactions to Attachment N, that these concerns do not impede the production of Attachment N of the Mapien Report (Part 2).

Redactions to Attachment N

  1. [80]
    In the event the Commission was minded to order disclosure of the Mapien Report (Part 2) or any attachments, the State sought to propose redactions to protect the identity and interests of persons referred to in the report or its attachments, who were not the subject of any criticism by Mr Smith[58] and to minimise the unnecessary disclosure of highly sensitive information.[59]
  2. [81]
    Following a mention where the parties were advised of my decision to order the production of Attachment N,[60] a further Order (No 8) was issued, directing the State to file any proposed redactions and supporting submissions to the Industrial Registry by 4:00pm 9 April 2025.[61]
  3. [82]
    On 9 April 2025, Mr Dwyer, on behalf of the State, contacted the Industrial Registry to request a one-day extension to file its proposed redactions in circumstances where Attachment N exceeded 80 pages in length and additional time was required to finalise submissions.[62]
  4. [83]
    In correspondence dated 10 April 2025, Dr Sherlock, on behalf of Mr Smith, objected to the State’s request for a one-day extension. In support of the objection, Dr Sherlock relied on concerns about continued delays caused by the State and a desire to progress the hearing of the substantive matter. [63]
  5. [84]
    Having regard to the length of Attachment N and the limited time originally afforded to the State by the Commission to make further submissions, a one-day extension was granted.
  6. [85]
    The State filed submissions on 10 April 2025,[64] in accordance with Further Directions Order (9).[65]
  7. [86]
    In these submissions, the State provided two redacted versions of Attachment N to the Mapien Report (Part 2). These versions were presented as alternatives. In the event the Commission determined the redactions in the first document were not appropriate, the Commission was requested to consider the second version. The documents were labelled "State’s Redactions v 1" and "State’s Redactions v 2".[66]
  8. [87]
    Without disclosing the specific content of the proposed redactions, the Commission provided Mr Smith with an opportunity to consider and respond to the State’s submissions.[67]
  9. [88]
    In correspondence dated 10 April 2025, Dr Sherlock, on behalf of Mr Smith, declined the option to make further submissions, stating:

We do not intend to make any further submissions in relation to the non-disclosure of documents relevant to Mr Smith’s case where the onus is on him to prove a lack of reasonable management action ... We will not make further submissions as we feel further delay is highly detrimental to Mr Smith’s wellbeing and likely to make no difference.[68] 

  1. [89]
    I have reviewed the submissions and proposed redactions in respect of the State’s Redactions v 1 and the State’s Redactions v 2.[69] I am satisfied the redacted content in the State’s Redactions v 1 should not be disclosed, for one or more of the following reasons, namely:
  • The content is not directly relevant to any of Mr Smith’s alleged stressors.[70]
  • The content relates to an entirely separate allegation, pertaining to two individuals who are not a party to the substantive proceedings.[71]
  • The content relates to Ms Todd’s own submissions about the management of allegations against her and is not related or directly relevant to Ms Todd’s management of Dr Sherlock’s complaints.[72]
  • The content is irrelevant to issues to be determined in Mr Smith's Worker’s Compensation proceedings, and arguably the subject of separate (unrelated) PIDs.[73]
  • The content relates to personal medical information which is irrelevant to how Ms Todd managed or assessed Dr Sherlock’s complaints.[74]
  1. [90]
    In reaching this decision, I have given due weight to the observations of President Martin J in DP World Brisbane Pty Ltd v Rogers & Anor.[75] While His Honour ultimately concluded that, as a general principle, considerations of confidentiality ought not to override the administration of justice, His Honour nonetheless acknowledged that:

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.[76]

  1. [91]
    I am satisfied that the State of Queensland has established there is content contained within Attachment N of the Mapien Report (Part 2) that is sensitive and unnecessary in terms of disclosure. Having regard to the submissions outlined above, I am further satisfied that the State’s Redactions v 1 strikes an appropriate balance between preserving both privacy and confidentiality and ensuring Mr Smith is afforded access to documentation directly relevant to his matter.

Correspondence Exchanged between MNHHS and Mapien

  1. [92]
    Mr Smith has not provided an adequate explanation as to why the correspondence between Mapien and MNHHS is relevant to Mr Smith’s SOFC or his List of Stressors. In those circumstances, I am not satisfied disclosure of those documents should be compelled.

Conclusion

  1. [93]
    For the reasons given above, I order accordingly.

Orders

  1. Within 14 days, the State of Queensland (Queensland Health) to produce to Mr Smith a copy of Attachment N of the Mapien Report (Part 2), containing v 1 of the State’s redactions.

Footnotes

[1]Form 29 – Notice of non-party disclosure, filed 5 April 2024, 3.

[2]Nominated Party Objection to Notice of Non-Party Disclosure, Mapien, filed 10 April 2024.

[3]The State of Queensland's (Queensland Health) ('the State') submissions filed 13 May 2024, [3].

[4]T 1-23, ll 8–10.

[5]Further Directions Order (No 5) of Industrial Commissioner Knight issued 7 August 2024.

[6]T 1-3, ll 10–15.

[7]Further Directions Order (No 5) of Industrial Commissioner Knight issued 7 August 2024.

[8]State's submissions filed 13 May 2024, [7].

[9]Form 29 – Notice of non-party disclosure, filed 5 April 2024, 3.

[10]Ibid 8-9.

[11]Mr Smith’s Submissions filed 24 April 2024, [18].

[12]State's submissions filed 13 May 2024, [2].

[13]Ibid [5].

[14]Ibid [9].

[15]Ibid [10]-[11].

[16]Ibid [12].

[17]Ibid [13].

[18]Ibid [14].

[19]Ibid [16].

[20]Mapien's submissions filed 24 May 2024, [10].

[21]Ibid [10].

[22]Ibid [11].

[23]Mr Smith’s Submissions filed 24 April 2024, [15].

[24]Form 4 – Application in existing proceedings, filed 3 August 2023, 3.

[25]Mr Smith’s Submissions filed 24 April 2024, [20].

[26]Ibid [17]-[19].

[27]Ibid [21].

[28]Ibid [23].

[29]Ibid [21].

[30]Mr Smith's submissions filed 24 August 2023, [19].

[31]Ibid [20]-[21].

[32]Tribunal Rules, r 64 G.

[33]Workers' Compensation and Rehabilitation Act 2003 (Qld) s 32.

[34][2023] ICQ 025, citing Mercantile Mutual Custodians Pty Ltd v Village/Nine Network Restaurant & Bars Pty Ltd [2001] 1 Qd R 276, 282-3 and Xstrata Queensland Ltd v Santos Ltd [2005] QSC 323, [45].

[35][2020] QIRC 3, 7.

[36][2016] QIRC 75.

[37]Ibid [4].

[38]State's submissions filed 13 May 2024, 4-8.

[39]T 1-9, l 10.

[40]T 1-10, ll 12-31.

[41]Email to the Industrial Registry from Dr S Sherlock, on behalf of Mr Smith, 23 August 2024, Attachments 'Friends' School Inc v Edmiston [2014] TASSC 68' and 'Citation List'.

[42]Xstrata Queensland Ltd v Santos Ltd [2005] QSC 323, [45].

[43]Ibid [55] citing National Employers' Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372, 378-86 (Moffitt P).

[44]Robson v Engineering Pty Ltd [1997] 2 Qd R 102, 105 cited in Rubin v Bank of Queensland Ltd [2010] QSC 175.

[45]Mapien Report (Part 2) 3-4.

[46]Form 29 – Notice of non-party disclosure, filed 5 April 2024, 8-11.

[47]Mapien Report (Part 2).

[48]Form 29 – Notice of non-party disclosure, filed 5 April 2024, Table of Stressors at 8-9.

[49]T 1-27, ll 25-30.

[50]T 1-29, ll 40-41.

[51][2015] ICQ 031, 7-8.

[52]Harris v Caladine (1991) 172 CLR 84, 124-5.

[53][2021] QIRC 062, [39].

[54]Mapien's submissions filed 24 May 2024, [11].

[55]DP World Brisbane Pty Ltd v Rogers & Anor [2014] ICQ 010, [18].

[56][1999] QSC 337.

[57]Esso Australia Resources Limited and Ors v Plowman (1995) 183 CLR 10, [36], citing Alterskye v Scott [1948] 1 All ER 469, 470. 

[58]State's submissions filed 13 May 2024, [15].

[59]State's submissions filed 10 April 2025, [6].

[60]T 1-2, ll 30-40.

[61]Further Directions Order (No 8) of Industrial Commissioner Knight, issued 7 April 2025.

[62]Email to the Industrial Registry from Mr B Dwyer, on behalf of the State of Queensland, 9 April 2025.

[63]Email to the Industrial Registry from Dr S Sherlock, on behalf of Mr Smith, 10 April 2025.

[64]State's submissions filed 10 April 2025.

[65]Further Directions Order (No 9) of Industrial Commissioner Knight, issued 10 April 2025.

[66]Email from Mr B Dwyer to the Industrial Registry, 10 April 2025.

[67]Email from the Industrial Registry to the Parties to the NNPD (WC/2023/11), 10 April 2025.

[68]Email from Dr S Sherlock, on behalf of Mr P Smith, 10 April 2025.

[69]State's submissions filed 10 April 2025, Attachments 'State’s Redactions v 1' and 'State’s Redactions v 2'.

[70]State's submissions filed 10 April 2025, 6.

[71]Ibid.

[72]Ibid.

[73]Ibid 8.

[74]Ibid 9.

[75]DP World Brisbane Pty Ltd v Rogers & Anor [2014] ICQ 010, [18].

[76]Ibid.

Close

Editorial Notes

  • Published Case Name:

    Smith v Workers' Compensation Regulator

  • Shortened Case Name:

    Smith v Workers' Compensation Regulator

  • MNC:

    [2025] QIRC 105

  • Court:

    QIRC

  • Judge(s):

    Knight IC

  • Date:

    17 Apr 2025

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
Alterskye v Scott (1948) 1 All E.R. 469
1 citation
Jump To
Cite 1 - (1948) 1 All E.R. 469
Boorman v State of Queensland (Department of Justice and Attorney-General) [2021] QIRC 62
2 citations
Jump To
Cite 1 - [2021] QIRC 62
Cite 2 - [2021] QIRC 62
Church v Workers' Compensation Regulator [2015] ICQ 31
2 citations
Jump To
Cite 1 - [2015] ICQ 31
Cite 2 - [2015] ICQ 31
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
Esso Australia Resources v Plowman (1995) 183 CLR 10
1 citation
Jump To
Cite 1 - (1995) 183 CLR 10
Harris v Caladine (1991) 172 C.L.R 84
2 citations
Jump To
Cite 1 - (1991) 172 C.L.R 84
Cite 2 - (1991) 172 C.L.R 84
Mohr-Edgar v Legal Aid Queensland [2023] ICQ 25
1 citation
Jump To
Cite 1 - [2023] ICQ 25
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
National Employers' Mutual General Association Ltd v Waind and Hill (1978) 1 N.S.W. L.R. 372
2 citations
Jump To
Cite 1 - (1978) 1 N.S.W. L.R. 372
Cite 2 - (1978) 1 N.S.W. L.R. 372
Robson v REB Engineering Pty Ltd [1997] 2 Qd R 102
2 citations
Jump To
Cite 1 - [1997] 2 Qd R 102
Cite 2 - [1997] 2 Qd R 102
Rubin v Bank of Queensland Ltd [2010] QSC 175
2 citations
Jump To
Cite 1 - [2010] QSC 175
Cite 2 - [2010] QSC 175
Village/Nine Network Restaurants & Bars Pty Ltd v Mercantile Mutual Custodians Pty Ltd[2001] 1 Qd R 276; [1999] QCA 276
2 citations
Jump To
Cite 1 - [2001] 1 Qd R 276
Cite 2 - [2001] 1 Qd R 276
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
1 citation
Jump To
Cite 1 - [1999] QSC 337
Xstrata Queensland Ltd v Santos Ltd [2005] QSC 323
3 citations
Jump To
Cite 1 - [2005] QSC 323
Cite 2 - [2005] QSC 323
Cite 3 - [2005] QSC 323

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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