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AB v Workers' Compensation Regulator[2025] QIRC 113

AB v Workers' Compensation Regulator[2025] QIRC 113

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

AB v Workers' Compensation Regulator [2025] QIRC 113

PARTIES:

AB

(Appellant)

v

Workers' Compensation Regulator

(Respondent)

CASE NO:

WC/2024/106

PROCEEDING:

Objections to notices of non-party production

DELIVERED ON:

8 May 2025

MEMBER:

Pidgeon IC

ORDERS:

The Orders contained at paragraph [189] of these reasons for decision.

CATCHWORDS:

PROCEDURE – NOTICE OF NON-PARTY DISCLOSURE – where Kmart object to production on grounds of relevance – where Kmart object to production on grounds of confidentiality – where Kmart object to production on grounds of relevance – where Kmart object to production on grounds of expense and inconvenience – where Kmart object to production on grounds that the documents sought have not been identified with sufficient particularity – whether the Commission should set aside part or all of the documents contained in the Appellant's notice of non-party disclosure – consideration of the Industrial Relations (Tribunals) Rules 2011

LEGISLATION:

Industrial Relations (Tribunals) Rules rr 64B, 64E, 64G

CASES:

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

Mohr-Edgar v Legal Aid Queensland [2023] ICQ 025

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

Reasons for Decision

Introduction

  1. [1]
    AB ('the Appellant') was employed by Kmart Australia Limited. On 3 November 2023, Wesfarmers ('the Nominated and Affected Parties'), which owns the Kmart Group, rejected AB's application for workers' compensation.
  1. [2]
    The following day, AB made an application in accordance with the Workers' Compensation and Rehabilitation Act 2003 ('the WCR Act') to the Workers' Compensation Regulator ('the Respondent'). The Respondent confirmed the original decision of Wesfarmers in a letter to the Appellant dated 1 May 2024.
  1. [3]
    Pursuant to ch 13, pt 3, div 1 of the WCR Act, AB appeals to the Queensland Industrial Relations Commission ('the Commission') against the review decision of the Respondent.
  1. [4]
    On 30 September 2024, the Appellant, pursuant to r 64B of the Industrial Relations (Tribunals) Rules ('the Rules'), requested two notices of non-party production ('NNPD') for specified documents which, for all practical purposes, were directed to the Nominated and Affected Parties. AB's two NNPDs were issued on 1 October 2024.
  1. [5]
    By objections filed on 6 November 2024 pursuant to r 64E of the Rules, the Nominated and Affected Parties objected to the production of the specified documents. In a letter dated 7 November 2024, the Nominated and Affected Parties stated:

…

Having regard to the sheer volume of documentation sought by the Applicant in the Form 29-Notice of Non-party disclosure (the Notice), we asked the Applicant to provide a copy of his Statement of Facts and Contentions and the Regulator's Statement of Facts and Contentions to clarify the relevant issues in dispute. Save for the Notice, the Applicant has not provided Kmart with any documentation about the matter which is the subject of this proceeding. Notwithstanding the absence of this documentation, and in accordance with the extension granted by Commissioner Pidgeon on 15 October 2024, please find attached Kmart's Objections to the Production of the Documents sought by the Applicant in the Notice.

  1. [6]
    That correspondence was accompanied by a table which addresses the objections to the 21 categories of documents sought by the Appellant over 18 pages.
  1. [7]
    Upon receipt of the objections, I listed the matter for mention. At the mention, I noted that in circumstances where a Statement of Facts and Contentions was yet to be filed, I intended to direct that the Appellant consider the objections which had been raised and that where he still sought the documents in question, he file and serve an amended or new NNPD providing better particulars as to the documents or categories of documents he was seeking be disclosed. Following the mention, I issued the following directions:
  1. That the Appellant is to file in the Industrial Registry and serve on the nominated and affected parties an amended Notice of Non-party disclosure which addresses the objections to disclosure by 4.00 pm on Friday, 3 January 2025.
  1. That the nominated and affected parties file in the Industrial Registry and serve on the Appellant any objections to the amended Notice of Non-party disclosure by 4.00 pm on Friday, 24 January 2025.

AB's amended notices of non-party production and the objections by the Nominated and Affected Parties

  1. [8]
    The Appellant filed an amended NNPD in the Industrial Registry on 3 January 2025. This was issued on 6 January 2025.
  1. [9]
    In the section of the NNPD titled The matter in issue in the proceedings about which the document(s) sought is/are directly relevant as follows, AB wrote:

The worker's (sic) compensation regulator has determined upon review that the injury arose from section 32(5)(a) of (WORKERS' COMPENSATION AND REHABILITATION ACT 2003), by reasonable management action taken in a reasonable way by the employer in connection with the worker's employment.

The applicant contends that documents requested are relevant as follows –

  1. –The documents will demonstrate that the applicant consistently performed his duties to a high standard and was consistently recognised as doing through (sic) until around the time that the applicant left employment.
  2. –The applicant is confident that documents requested exist, however is not always certain of the method of communication as such requests a broad review of communication platforms to identify the documents requested.
  3. –The applicant has been careful to request information that includes the following a) As much as possible only contains information about the applicant as the subject to maintain confidentiality of others (could also be redacted); b) That other information is not commercially sensitive on the basis that the applicant already holds a significant amount of information including by way of retained documents and reports (including over 1000 pages from insurer files for worker's (sic) compensation claim); and that the applicant has not used this information improperly during or after employment; that financial information is not subject to blackout of results reporting for FY2022; and is also generally publicly available by way of stock market reporting.
  4. –The applicant contends that the information requested will show that he was treated with prejudice by Kmart Australia and that these documents will demonstrate this; as such also expects that Kmart will rigorously defend providing the information requested. The applicant believes that the nominated parties acted improperly with regard to managing the applicants (sic) employment; possibly without Kmart's full knowledge of the facts at the time; the applicant believes that these facts were better established only after the lodgement of a worker's compensation (sic) claim, which was beyond the date of the applicant's employment.
  5. –That Kmart's profits exceed $1billion annually, that a claim of burden or cost on them to provide these documents is fanciful, all electronic communication would be available on company servers or archived; and easily obtainable.
  6. –That both Mr Jason Collins and Mr Renshaw are still within employment with Kmart and have retained ongoing active mobile phone accounts that have not been wiped or deleted. Mr Riby post-employment likely retained his device and or account which contains forms of electronic messaging beyond previous work emails.
  1. [10]
    In a Schedule of Documents attached to the Form 29, the Appellant sets out 19 documents or categories of documents he seeks be disclosed by Kmart.[1]
  1. [11]
    The Nominated and Affected Parties filed amended objections to AB's amended NNPD on 21 February 2025. In this Amended schedule of documents, Kmart sets out its objections to every document or category of document the Appellant has sought.
  1. [12]
    AB advised the Commission that he wished for the amended NNPD to be enforced on 23 March 2025. While this was not within the time period provided under the Rules, I have decided to waive the time period in order to deal with the objections with a view to progressing the substantive matter. I also note that for several reasons, both parties have required extensions of time to file material in this proceeding.
  1. [13]
    I listed the matter for a further telephone mention. Following this, the Nominated and Affected Parties made further submissions on 3 April 2025.
  1. [14]
    While he was not directed to do so, the Appellant sent an email containing further submissions on 8 April 2025. I had not directed AB to make further submissions. I have considered that email and I do not believe it contains anything substantive that serves to significantly add to the content of the Form 29 and the attached Schedule of documents. I note that this email was, as required, also sent to the Non-party. The Non-party did not seek to be heard in reply.

The legal framework

  1. [15]
    Pursuant to r 64E(4) of the Rules provides the following non exhaustive reasons for objection to production:
  1. if the objector is the non-party—the expense and inconvenience likely to be incurred by the non-party in complying with the notice;
  1. the lack of relevance to the proceeding of the documents mentioned in the notice;
  1. the lack of particularity with which the documents are described;
  1. a claim of privilege;
  1. the confidential nature of the documents or their contents;
  1. the effect production would have on any person;
  1. if the objector was not served with the notice—the fact that the objector should have been served.
  1. [16]
    In addition to the operation of r 64E of the Rules, further principles relevant to the process of considering objections to disclosure can be readily extracted from Industrial Commissioner Fisher's decision of Weston and Parer v State of Queensland (Department of Justice and Attorney General) (No. 4).[2] Notably:[3]

[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.

Relevance

  1. [17]
    In Mohr-Edgar v Legal Aid Queensland,[4] when considering the relevance of a document, his Honour President Davis J determined that:

[42]  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.[5]

[43]  Here, a fact in issue between the parties is the content of the conversation of 9 May 2018. Ms Mohr-Edgar asserts that the subject of the conversation was her being moved. Legal Aid says the subject of the conversation was client files. Evidence which tends to disprove the position of one party does, in fact, assist the proof by the other party of its contrary position. That is because, logically, in proving a particular position, a party disproves a contrary position. Put another way, if there are two competing positions and one is disproved, the likelihood of the other being found to be correct is enhanced.

Sensitivity/Confidentiality

  1. [18]
    In DP World Brisbane Pty Ltd v Rogers & Anor ('DP World'),[6] President Martin J (as his Honour then was) delineated the relevant principles to consider when assessing the validity of a claim of confidentiality over documents to be produced:

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.[7]

Consideration

  1. [19]
    I intend to simply work through each of the documents or classes of documents sought by the Appellant. In doing so, I will consider the reasons for the objection and any specific submissions made by the parties about each.
  1. [20]
    However, both Kmart and the Appellant have provided some general submissions addressing the NNPD and the objections. I will summarise those here.

AB's submissions relating to his request that the Notice be enforced

  1. [21]
    The Appellant notes that the fresh objection continues to be made for all requests he makes. He disputes the objections made by the non-party. AB believes he has stated his grounds as to the relevance of the information he requests. AB says that he has substantial evidence that he was meeting and exceeding the performance requirements of his contract of employment and says that he was not under investigation for any breaches of his employment contract or subject to any allegations of misconduct.
  1. [22]
    The Appellant says that for reasons unknown to him, he was bullied by the actions of his employer. AB says that the documents he seeks 'will assist in revealing the true nature and motivations' of his manager.
  1. [23]
    The Appellant believes the non-party has a reasonable capacity to produce all of the documents he requests and says that the objections have been made because the non-party does not wish for him to discover further information in support of his claim.
  1. [24]
    AB says that there is still crucial information he needs to demonstrate that there are no performance or behavioural issues relating to his employment.
  1. [25]
    AB disputes that his NNPD is a 'fishing exercise' as he believes the documents exist and he has narrowed his request carefully to what he considers will support his claims of bullying. However, he acknowledges that he 'cannot specifically pinpoint otherwise the precise dates, precise subjects, or people who may have been involved'.  the Appellant says that he would not object to the reasonable redaction of individual's details as long as it does not diminish the content of the information being sought.
  1. [26]
    AB says that the range of dates he has nominated 'remain relevant' as to the commencement of unreasonable behaviour' towards him through to the period when he was leaving his employer. The Appellant says that electronic conversations which then took place through his claims period and beyond are also relevant.
  1. [27]
    AB says that the insurer was previously able to 'selectively' obtain records and documents that the non-party submitted to them in defence of his claim and which he obtained through access to his file. The Appellant says 'it seems incredulous that they are now incapable of accessing similar records on servers in the same way that they have done previously'.
  1. [28]
    AB says that the dates for which he is seeking documents extend beyond his employment dates as the matters of concern to the non-party and insurer were 'more properly identified' after his departure.
  1. [29]
    The Appellant objects to the non-party claiming privilege on any information, particularly if it is not subject to privilege conditions based on the dates of claimed privilege and the strict requirements to manage the information carefully to maintain privilege.

Kmart's submissions in support of their objections

  1. [30]
    Kmart submits that AB has not properly particularised his grounds of appeal where he states that, 'The appellant will appeal on the grounds that the evidence has not sufficiently been considered and will provide a further summary in due course within the application'. As the NNPD does not set out what that evidence is, and AB is yet to file a Statement of Facts and Contentions, Kmart says that it is difficult to know what issues are in dispute and, therefore, the relevance of any documents sought.
  1. [31]
    Kmart notes the Appellant's reference to the 'substantial evidence' he was able to provide at the first s 552A conference and says that this would appear to make the need for NNPDs to Kmart redundant.
  1. [32]
    Kmart submits that it is not able to provide submissions on the merits of the appeal as it has not been provided with the necessary information and documentation required to do so.
  1. [33]
    Kmart denies that AB was subjected to any bullying during his employment.
  1. [34]
    Notwithstanding Kmart's objections to the amended Form 29, Kmart says that should the Commission order disclosure of documents with redactions, it would be a very time consuming and costly exercise given the sheer volume of the documentation sought.
  1. [35]
    Kmart says that there is no relevance to the request for documents created after the cessation of the Appellant's employment.

Consideration of documents sought and objections with a ruling on each

Document Category 1

  1. [36]
    The first set of documents AB seeks to be disclosed relate to dates from 1/01/2014 to 30/06/2022. The Appellant describes this category of documents as:

Copies of finalised full year individual performance review documents relating to the applicant. These documents demonstrate the ongoing and consistent high performance of the applicant, whilst a narrative of underperformance was being manufactured. They are saved in Success Factors database and previous years (sic) documents were integrated into this system upon change and can be accessed by an employee at any time. These documents relate only to the applicant and can't be disputed on the basis of confidentiality.

  1. [37]
    Kmart objects to the production of this category of documents on the following grounds:
  1. It is unclear as to the relevance of the documents sought to the matters in dispute in this proceeding;
  1. assuming the documents sought exist and are relevant (which is disputed), there would be considerable expense and inconvenience on the part of the nominated and affected parties in trying to locate and identify the documents to comply because, for among other reasons, there was no centralised database /repository to capture these kind (sic) of documents prior to the introduction of the performance module in Success Factors in the financial year ending 2021;
  1. Further, the Applicant ceased employment with Kmart on 27 July 2022, which was prior to the completion of the calibration process for the financial year 2022.
  1. [38]
    AB initially filed NNPD forms which stated that in his appeal he would be seeking to demonstrate that management action taken by his employer was not reasonable. In his Amended NNPD, the Appellant makes clear that he is seeking to demonstrate that he was performing well in his role while a 'narrative of underperformance was being manufactured'. On that basis, I am satisfied that is sufficiently clear that individual performance review documents relating to AB are relevant to his appeal.

Order for production – Document Category 1

  1. [39]
    The Appellant has identified the database in which he says the documents are held. They relate directly to him and his performance. I order that any of AB's full year individual performance review documents which are in the Success Factors database pertaining to the period of 01/01/2014 to 30/06/2022 be disclosed to him.
  1. [40]
    I understand that Kmart says the 'calibration process' had not been completed when AB ceased employment on 27 July 2022. Therefore, the final full year performance review document should be disclosed in whatever state of completion it is in.
  1. [41]
    If any or all the documents do not exist or are unable to be located, the relevant officer of Kmart must file an affidavit outlining the search which was undertaken and the outcome of that search.

Document Category 2

  1. [42]
    The Appellant describes the second category of documents sought as:

Documents which outline the processes; company expectations; and guidelines for the achievement and growth conversations to deliver to all leaders to Kmart standards and were provided every 6 months to accompany performance review preparations. These documents show the required process for which these conversations should be handled and how evaluation must be performed. There would be an identical or slightly modified version of this process still in use by Kmart today. There is no commencement date because the current document as at 27 July 2022 is being sought.

  1. [43]
    Kmart objects to the request for production of this category of documents on the grounds that it is unclear as to the relevance of the document sought to the matters in dispute in this proceeding. Further, Kmart says that the documents and the contents of the documents sought in this category are confidential. Kmart also says that the documents sought have not been identified with reasonable particularity and that there is no start date from which the documents are sought and therefore the scope of the request is too broad. Kmart also says that the burden of producing the documents sought in this category is oppressive.
  1. [44]
    In circumstances where I have determined that the Appellant's individual performance review documents are relevant and are to be disclosed, it follows that a document which sets out how the individual performance review conversation is to be handled and how the evaluation must be performed is relevant. This is particularly the case where  AB seeks to demonstrate that management action has not been reasonable. The scope of the request is not too broad. AB seeks the version of the document which was in place on 27 July 2022. He has identified that this is the document provided every 6 months to accompany performance review preparations. I am satisfied that this gives Kmart sufficient particulars to identify the document/s used at the relevant time.

Order for Production – Document Category 2

  1. [45]
    I direct that Kmart disclose to the Appellant the document/s provided to accompany performance review preparations in 2022.
  1. [46]
    To the extent that some of the content of the document/s is confidential, I direct that documents be produced to the Appellant on the basis that they are used solely for the purpose of these proceedings.

Document Category 3

  1. [47]
    AB describes document category 3 as relating to the:

Kmart talent matrix (derived from Wesfarmers talent matrix) used for the determination of talent mapping including an explanation of the definitions of the framework and any emails, documents or text messages about the applicant relating to his Wesfarmers talent mapping outcome. This document will show the framework for what constitutes performance including underperformance, (sic) this framework is relatively generic and not subject to IP protection or commercial sensitivity.

  1. [48]
    Kmart objects to the production of those documents on the following grounds:
  1. it seeks documents from a separate legal entity, Wesfarmers Limited, which is not a party to the Amended Notice;
  1. the highly confidential and commercially sensitive nature of the documents sought and their contents. Documents dealing with "talent" are likely to reference third party individuals;
  1. it is unclear as to the relevance of the documents sought to matters in dispute in this proceeding. Talent mapping relates to succession planning and risk management, rather than performance;
  1. the scope of the request is too broad because it does not provide a start date for the documentation sought;
  1. the Applicant does not define with any particularity the documents sought, for example, we do not know what "the framework" means nor do we know who the emails or text messages sought are passing to and from. Kmart is not able to conduct a generic IT search of emails without knowing the initiating emailing party and the recipient;
  1. assuming the documents sought exist and are relevant (which is disputed), there would be considerable expense and inconvenience on the part of the nominated an affected parties in trying to locate and identify the documents to comply with this part of the Amended notice;
  1. further, Kmart does not retain text messages sent or received by former team members, including the affected party, David Riby, on their Kmart issued mobile phones. Upon cessation of employment with Kmart, team member mobile phones are returned and wiped – even if the mobile phone number is retained.
  1. [49]
    With regard to the 'talent matrix', I do not understand this request to be of Wesfarmers as clearly identifies that the talent matrix is for Kmart. AB says that the document identifies what constitutes performance and underperformance. This relates to the particulars identified in his NNPD where he identifies that he is seeking to demonstrate that he was not underperforming. I understand that Kmart says the document deals with succession planning and risk management rather than performance, but to the extent that it may refer to the expectations, skills and knowledge required of 'talent' at Kmart, I am satisfied that it is relevant.
  1. [50]
    The request for 'any emails, documents or text messages about the applicant relating to his Wesfarmers talent mapping outcome' is too broad to enable Kmart to reasonably locate and identify the documents.
  1. [51]
    If the Appellant believes there is a specific document relating to his Wesfarmers talent mapping outcome, it is open to him to seek production of that document. However, I accept that without knowledge of who the emails or messages are passing to and from and without any specific dates or time periods being identified, the objection regarding 'any emails, documents or text messages…relating to [AB's] Wesfarmers talent mapping outcome' should be upheld.

Order for production – Document Category 3

  1. [52]
    The Kmart 'talent matrix' which was in place on 27 July 2022 is to be disclosed to AB. To the extent that it references third party individuals, this information may be redacted. To the extent that the 'talent matrix' is confidential or commercially sensitive, I order that the document is to be used solely for the purpose of these proceedings.
  1. [53]
    If the Kmart talent matrix does not exist and is in fact a Wesfarmers document only in possession of Wesfarmers, the relevant officer of Kmart is to file an Affidavit to this effect.
  1. [54]
    The request for production of the remainder of documents in this category is set aside.

Document Category 4

  1. [55]
    The Appellant describes Document Category 4, of which he says that time period spans 01/01/2021 to 27/07/2022 as relating to:

Kmart company guidelines used to determine the performance review ratings adjustments for zones with stores in NSW and VIC due to COVID impacted stores and the rationale/logic behind these adjustments. They may be in the form of a guidelines document or an email. These documents will demonstrate particularly that there were known KPI impacts due to COVID constraints and what adjustments were to be made when considering performance. These guidelines were made available to 1000+ employees at performance review and would not be subject to commercial sensitivity.

  1. [56]
    Kmart objects to this request of the grounds that it is unclear what the relevance of the documents sought is to the matters in dispute in the proceeding. Kmart also says that the documents sought have not been identified with reasonable particularity and that the documents are confidential and commercially sensitive. Kmart also says that assuming the documents sought exist and are relevant (which is disputed), there would be considerable expense and inconvenience on the part of the Nominated and Affected Parties in trying to locate and identify the documents.
  1. [57]
    I am satisfied that AB has identified the document he is seeking with sufficient particularity for Kmart to locate it. The Appellant is aware that there was a set of guidelines used to adjust performance review ratings due to COVID constraints. He says that this information was provided either by way of a document or an email and that it was provided to more than 1000 employees at time of the performance review. He has identified a window of time of approximately 18-months.
  1. [58]
    AB has noted that his appeal pertains to management action and has identified that he will be arguing that he was not underperforming. The guidelines he seeks relate to performance reviews. I am satisfied that the document is relevant to the matters in dispute in the proceeding. To the extent that the material is confidential or commercially sensitive, this has been discussed at paragraphs [110], [155] and [165] of these reasons for decision.
  1. [59]
    A request for any 'additional documents' which discuss the 'rationale/logic' behind the adjustments is not specific and does not contain sufficient particulars for Kmart to comply with production.

Order for production regarding Document Category 4

  1. [60]
    I direct that the Kmart company guidelines used to determine performance review ratings adjustments for zones with stores in 'NSW and VIC' due to the impacts of COVID be disclosed to AB. The documents are to be used solely for the purpose of these proceedings.
  1. [61]
    The request for provision of additional documents discussing the 'rationale/logic' behind the adjustments is set aside.

Document Category 5

  1. [62]
    Document Category 5 is described as including:

Specifically a copy of the email that the applicant sent to David Riby on the morning of the 24th of June 2022; and any comments by way of sharing of this email with Mr Christopher Renshaw and/or Mr Jason Collins, including their reply of the reply of others who were forwarded this email; this email is with regard to the additional information provided to him following a performance summary review discussion the previous day. This email will show that the requirement to enter into performance management was reasonably being disputed by the applicant on the basis of the contents of the email which is also the basis for the applicant refusing to participate until the contents of this dispute were considered; and that Mr Riby had failed in his duty and responsibility to consider external impacts to performance due to COVID and also where he accidentally or deliberately under-rated achievements and agreed outcomes. Despite this has sought to follow-through with a conversation that morning about the applicant leaving their employment.

  1. [63]
    Kmart says that it is unclear what the relevance of the documents are to the matters in dispute in this proceeding. Further, Kmart says that the documents sought have not been identified with reasonable particularity. With regard to the request for replies and any replies of others who received the email, Kmart says that it is not able to conduct a generic IT search of emails without knowing the initiating emailing party and the recipient.
  1. [64]
    Kmart also says that the documents sought and some of their contents are confidential and assuming the documents sought exist and are relevant (which is disputed), there would be considerable expense and inconvenience on the part of the Nominated and Affected Parties in trying to locate and identify the documents to comply with this part of the notice.
  1. [65]
    I am satisfied that the emails sought are directly relevant to the Appellant's appeal grounds which relate to management action. AB has plainly identified performance review and performance management as relevant to his matter. They are described with particularity such that Kmart is able to identify and search for the document/s.

Order for production – Document Category 5

  1. [66]
    The Appellant has specifically nominated an email that he sent to David Riby on 24 June 2022. That email is to be located and disclosed by Kmart.
  1. [67]
    AB has also specified that he seeks emails from Mr Riby sharing that email referred to in paragraph [66] above with Mr Renshaw and/or Mr Collins. This is specific, and names both the initiating party and the recipient. The subject line and subject matter of the email will have been identified via the originating email, and the very specific date upon which the original email was sent, would not incur a considerable inconvenience and expense in locating the original email and any other emails. If Mr Riby shared the email with either Mr Renshaw or Mr Collins, these emails and/or email chains are to be located and disclosed by Kmart.

Document Category 6

  1. [68]
    AB sets out the parameters around Document Category 6 as being:

Copies of all emails that the applicant sent during this period to David Riby [01/01/2022 – 27/07/2022]. Please also provide copies of the responses received to these emails; or the forwarding of these emails from David Riby to Chris Renshaw or any other currently unknown party. These emails will show where the applicant was calling out reasonable operational barriers imposed due to COVID related impacts (which Kmart deemed reasonable at the time).

  1. [69]
    Kmart objects to the request for production of the documents on the following grounds:
  • It is unclear as to the relevance of the documents sought to matters in dispute in the proceeding, in particular the request for 'Copies of all emails that the applicant sent during this period to David Riby. Please also provide copies of responses received…'.
  • Kmart says that Mr Riby became AB's manager when he began his role and therefore a 'not insignificant' number of emails would have passed between the two during that six-month period covering a range of topics.
  • The documents sought have not been identified with reasonable particularity, which would make it difficult to locate them, for example, 'forwarding of emails from David Riby to Chris Renshaw or any other currently unknown party'. Kmart says it is not able to conduct a generic IT search of emails without knowing the initiating emailing party and the recipient.
  • Assuming the documents are relevant (which is disputed), there would be considerable expense and inconvenience in trying to locate and identify the documents.
  • The documents are of a confidential and commercially sensitive nature.
  • The scope of the documents is too broad, and is arguably a 'fishing expedition', having regard to the large volume of documents requested over a six month period covering a range of topics.
  1. [70]
    I agree with Kmart that this category of documents is too broad and not sufficiently particularised. It appears that the Appellant wants production of many emails and replies in order to identify a sub-category of emails where he was 'calling out' operational barriers. Further, it appears that AB is not sure of who else may have had these emails forwarded to them.
  1. [71]
    The Appellant says that the relevance of the emails is that they will demonstrate actions he was taking to raise matters with Mr Riby. Without more specificity, I do not think that the request for production of this category of documents is reasonable. I am not able to identify a clear link to the matters in issue in the proceeding as they have been set out in the NNPD.
  1. [72]
    The Appellant will be able to provide oral evidence to the Commission regarding the issues he says he raised with Mr Riby. These matters may also be put to Mr Riby at the hearing.

Document Category 6 of the NNPD is set aside

  1. [73]
    The objection to the request for production of the sixth category of documents is upheld. This part of the NNPD is set aside.

Document Category 7

  1. [74]
    Document Category 7 is described as:

Copies of various emails and reports which show the closures to public of all stores [redacted] due to COVID … These are relevant due to the proven impact on KPI's, the information is not commercially sensitive since it relates to publicly known closure dates furthermore the applicant has in his possession already detailed financial reports over multiple financial years for the entire company and has not demonstrated any misuse of this information during or after employment.

  1. [75]
    Kmart objects to this request for production of documents and says: the relevance of the documents is unclear; the scope of the request is too broad and lacks particularity as it does not identify who the 'various emails' are to and from and does not identify the specific reports sought. Kmart says it cannot conduct a generic IT search of emails without knowing the initiating emailing party and the recipient.
  1. [76]
    Kmart also says that the documents are confidential and commercially sensitive. Further, Kmart says that assuming the documents exist and are relevant (which it denies), there would be considerable expense and inconvenience in trying to locate and identify the documents.
  1. [77]
    With regard to AB's submission that he already has detailed financial reports over multiple years, Kmart says it is unclear why he requires the additional documentation. Kmart also notes with regard to the documents the Appellant says he has in his possession, that this may mean he is in breach of employment conditions, especially his 'Obligations on Termination'.
  1. [78]
    I agree with Kmart that this category of documents AB seeks is too broad and lacks particularity and that to require production would be unreasonable given the expense and inconvenience involved.
  1. [79]
    I will not consider further the matter of the Appellant retaining documents and whether he is in breach of Kmart's post-termination policies. I will note, however, that AB says the closures of the stores are public knowledge and that he is already in possession of financial reports available to him. It is my view that this is sufficient for the Appellant to provide oral evidence regarding the impact of store closures due to COVID and floods.
  1. [80]
    I further note that I have ordered production of Document Category 4 which addresses adjustments to KPIs resulting from the impacts of COVID.

Document Category 7 of the NNPD is set aside

  1. [81]
    The objection to the Document category 7 is upheld. Category 7 within the NNPD is set aside.

Document Category 8

  1. [82]
    This category of documents is described as pertaining to the period 01/07/2021 – 27/07/2022. AB outlines this category as relating to:

Copies of weekly Microsoft Viva emails to the applicant showing the number of quiet days each week and other personal technology use insights. These emails show a consistent pattern of needing to work 7 days per week.

  1. [83]
    Kmart objects to this request for the production of the documents on the basis that: it is unclear what the relevance of the documents is to matters in dispute in the proceeding; assuming the documents exist and are relevant (which is disputed), there would be considerable expense and inconvenience on the part of the Nominated and Affected Parties in trying to locate and identify the documents to comply with the notice. Kmart also says that the scope of the request is too broad and is arguably a 'fishing expedition', having regard to the large volume of emails requested over a twelve-month period.
  1. [84]
    I am satisfied that the Appellant has described the documents with sufficient particularity that they will be able to be located. I do not find this request could be considered a 'fishing expedition' as the specific source of the email is identified, it is noted that they were sent weekly, and a specific time period has been nominated. AB has specifically described the relevance of the documents as demonstrating his consistent pattern of work. Where the Appellant's employment is central to his Workers' Compensation Appeal, I am satisfied that establishing a pattern of work is sufficiently connected to the matters in dispute, if only to provide context to his more specific arguments regarding management action and performance.

Order for production of Document Category 8

  1. [85]
    I order that the weekly 'Microsoft Viva' emails received by AB for the period 01/07/2021 – 27/07/2022 be produced.

Document Category 9

  1. [86]
    This category of documents is said to be relevant on the basis of the information set out in the Form 29 and contains:

All emails; text messages; electronic messages; or documents of any kind where the applicant …; or any other alias was mentioned regarding any other general subject or concern of any kind at all, either originating from, or being received by; or shared between David Riby, Chris (Christopher) Renshaw; and/or Jason Collins.

  1. [87]
    AB says that he believes the information exists but does not know the method in which this would have been communicated between parties; and as such, he requests this information 'by broadly capturing by way of various communication platforms'.  The Appellant believes the conversations were ongoing beyond the dates of employment  extending to the period in which he claimed for workers' compensation and went through various reviews of claim with the Workers' Compensation Regulator.
  1. [88]
    AB says that Kmart has manufactured an artificial 'performance narrative' to bully him and end his employment and that the documents in this category will likely demonstrate this. AB says that he believes such emails are not confidential as they only concern him. However, the Appellant says that if others are identified in the documents, their particulars can be redacted. AB says that Kmart with its vast resources should easily be able to obtain archived emails and records with little effort or expense.
  1. [89]
    Kmart objects to this request for the production of documents in Document Category 9. Kmart says the relevance of the documents is not clear and further questions the relevance of documents created after 27 July 2022, being the Appellant's end date of employment.
  1. [90]
    Kmart says that there is a lack of particularity within which the documents are described which makes it difficult to identify the precise documents sought to be produced and between whom they were passing.
  1. [91]
    Kmart says that the scope of the request is too broad and is arguably a 'fishing expedition', further, it relates to a two year period.
  1. [92]
    Kmart submits that some of the documents sought are likely to be subject to a claim for legal privilege. Kmart also submits that assuming the documents exist and are relevant, which it denies, there would be considerable expense and inconvenience arising from compliance with this part of the amended notice.
  1. [93]
    Kmart says that the nature of the documents sought is confidential and potentially commercially sensitive.
  1. [94]
    Further, Kmart says that it does not retain text messages sent or received by former team members, including David Riby, on their Kmart issued mobile phones. Kmart says that upon cessation of employment with Kmart, team member mobile phones are returned and wiped – even if the mobile phone number is retained.
  1. [95]
    I agree with Kmart that this category of documents is so broad and lacking in particularity that it could be described as a 'fishing expedition'. The Appellant 'believes the information exists' but the information he describes is regarding 'any other general subject or concern of any kind at all'. AB broadly nominates a range of communication platforms and the three people amongst whom messages may have been exchanged over a two year period. It is impossible for me to determine the relevance of such a broad category of such loosely described documents to matters in issue in the appeal.
  1. [96]
    Beyond this, the broad nature of the documents sought is such that I find it would place an unreasonable burden on Kmart to search for documents sent over a two year period which are so broadly and indiscriminately described.

Document Category 9 of the NNPD is set aside

  1. [97]
    The objection to the production of documents set out in Category 9 is upheld. Document Category 9 is set aside.

Document Category 10

  1. [98]
    The category of documents sought from the period 01/01/2022 to 27/07/2022 is said to be:

Documents relating to specific meetings with the applicant that David Riby organised to clearly discuss performance issues with David Riby including any agreed actions. The applicant claims that no such meetings took place and is therefore providing the non-party the opportunity to produce evidence to the contrary; and will also prove lack of genuine performance issues by Kmart or failure to follow a process in the event of such concerns. The information sought relates only to the applicant and is therefore not confidential relating to any other person.

  1. [99]
    Kmart objects to this request. The most relevant of the grounds of objection raised regarding this category is that the request is unreasonable on the basis that the Applicant himself claims that 'no such meetings took place'.
  1. [100]
    Document Category 10 is misguided. AB has sought the production of documents which he knows do not exist for the purpose of demonstrating that they do not exist. The request for the documents (or absence thereof) in document category 10 is not a proper request for production of documents. It is a request for information or an admission of facts.

Document Category 10 of the NNPD is set aside

  1. [101]
    Document Category 10 is misguided and is set aside.

Document Category 11

  1. [102]
    The 11th category of documents AB seeks relates to the period 01/01/2021 to 31/12/2022 and is described as:

Documents for performance review calibration directions for Kmart Zone Managers and Store Managers ratings; particularly relating to any proposed adjustment to performance review ratings during this period; particularly around key performance indicators adjustments relating to COVID periods. These documents were used over multiple years until recently and would not be difficult to locate, these guidelines would be made available to any relevant employee upon request at the time (more than 1000 people). The request for such information beyond the dates of employment relate to the currency of this information for the period of time in which the applicant made application for workers' compensation.

  1. [103]
    Kmart questions the relevance of the documents and specifically queries the relevance of documents created after the cessation of the Appellant's employment. Kmart says that there is a lack of particularity within which the documents are described which makes it difficult to identify the precise documents sought.
  1. [104]
    Kmart also objects to production on the basis that the documents are confidential and highly sensitive and arguably identify the performance review information of other employees.
  1. [105]
    Kmart says that assuming the documents sought exist and are relevant, which is disputed, there would be considerable expense and inconvenience involved in locating and identifying the documents to comply with the notice.
  1. [106]
    It is clear that AB is focused on demonstrating that he was not underperforming in his role and that any management action said to be addressing performance management was not reasonable. Therefore, I find that the relevance of documents addressing key performance indicators has been made out.
  1. [107]
    While the documents are not specifically named, I find that there is a sufficient information contained in the request for Kmart to identify 'performance review calibration directions for Kmart Zone Managers' and Store Managers' ratings' for the period described. I understand that the documents the Appellant seeks are for a period extending beyond his employment. To that extent, Kmart is directed to identify the version of the document relevant at the time AB's employment ended and is not required to disclose any version of the document which came into effect after his employment ended.
  1. [108]
    I am not satisfied that the expense and inconvenience involved in locating these documents is such that I should not order their production. While Kmart says that it is difficult for it to identify the precise documents sought, it also refers to the 'confidential and highly sensitive nature' of the documents. I am satisfied that Kmart has sufficient knowledge of the documents sought.

Order for production of Document Category 11

  1. [109]
    Kmart is to locate and produce the document or documents described as 'performance review calibration directions for Kmart Zone Managers' and Store Managers' ratings' for the period specified in the Appellant's Form 29 being, 01/01/2021 to 31/12/2022. However, any version of the document which came into effect after AB's employment ended and would not have been used in his final performance review is not required to be produced.
  1. [110]
    To the extent that the documents are confidential, I direct that AB use the documents only for the purposes of his Workers' Compensation Appeal. To the extent that the documents include the performance review information of other employees, this information may be redacted prior to production.

Document Category 12

  1. [111]
    Document Category 12 relates to the period from 01/06/2022 to 27/07/2022, and is described as:

All emails; text messages or electronic messages of any kind discussing the applicant leaving the business (or exit strategy, or similar) particularly originating from, being received by; or shared between David Riby and/or Chris (Christopher) Renshaw; and/or Jason Collins.

  1. [112]
    The Appellant says that the relevance of these documents is set out on page two of his Form 29. AB says that an artificial performance narrative was manufactured to bully him in his employment and that these documents will demonstrate the true motivations behind this.
  1. [113]
    The Appellant submits that he believes the information exists but that he does not know the method in which this would have been communicated between the parties; and, as such requests this information by broadly capturing by way of various communication platforms.
  1. [114]
    AB says that the information requested is for a period of less than two months and that given its vast resources, Kmart could easily obtain the documents from archived emails/records etc with little effort; or expense. AB says the information he seeks relates only to him and is therefore not confidential.
  1. [115]
    Kmart objects on the grounds that it is unclear what the relevance of the documents sought is to the matters in dispute in the proceeding. Further, Kmart cites a lack of particularity within the documents which makes it difficult to identify the precise documents sought. Kmart also says that it is unclear who the messages are passing between and that it cannot conduct a generic IT search of emails without knowing the initiating emailing party and the recipient.
  1. [116]
    Kmart also says that the request for documents is too broad and that there would be considerable expense and inconvenience involved in attempting to identify and locate the documents sought.
  1. [117]
    Further, Kmart repeats its earlier submission that it does not retain text messages sent or received by former team members, including David Riby on their Kmart issued mobile phones.
  1. [118]
    Kmart also cites confidentiality and legal professional privilege as objections to production.
  1. [119]
    I am not satisfied that this category of documents sought has been sufficiently particularized by AB. It appears that the Appellant has a belief that these interactions took place, but is unable to provide any additional information than that. To that extent, the request may be considered a 'fishing expedition'. Further, I understand that the time period for which AB seeks the documents is only two months, however, the broad nature of what he seeks would, in my opinion, require considerable expense and inconvenience to undertake such a search. Essentially, every incoming or outgoing piece of communication relating to the three named people over a two month period would need to be located and searched to ascertain whether it fits within this category.

Document Category 12 of the NNPD is set aside

  1. [120]
    The objection to Document Category 12 is upheld. Document Category 12 in the NNPD is set aside.

Document Category 13

  1. [121]
    For completeness, I note that this request was removed in the Appellant's amended Form 29.

Document Category 14

  1. [122]
    The category of documents sought is for the period of 01/01/2022 to 30/06/2022 and is described as:

All emails; text messages; electronic messages; or documents of any kind between
David Riby and Chris (Christopher) Renshaw about the applicant changing roles into a supply chain role.

  1. [123]
    The Appellant says that he believes the information exists, but does not know the method in which this would have been communicated between parties and as such he requests the information by broadly capturing by way of various communication platforms. AB says that the documents are relevant as they relate to his assertion that performance issues were manufactured to bully him in his employment.
  1. [124]
    Kmart objects to this request for production the grounds that it is unclear what the relevance of the documents sought is to the matters in dispute in the proceeding. Further, Kmart cites a lack of particularity with which the documents are described.
  1. [125]
    Kmart says that assuming the documents exist and are relevant, which it denies, there would be considerable expense and inconvenience involved in complying with this part of the notice. Further, Kmart repeats that it does not retain text messages sent or received by former team members. Kmart also cites confidentiality as a ground of objection.
  1. [126]
    I am not satisfied that the Appellant has provided enough information in either his appeal document or the Form 29 to explain the relevance of communications regarding a change of role into a supply chain role to the matters in issue in his appeal.
  1. [127]
    Further to this, even if I were satisfied of the relevance of this set of documents, I find the lack of particularity regarding the documents the Appellant believes exist means that Kmart would incur considerable inconvenience in undertaking a search for this category of documents.

Document Category 14 of the NNPD is set aside.

  1. [128]
    The objection to category 14 of the NNPD is upheld. Document Category 14 of the NNPD is set aside.

Document Category 15

  1. [129]
    The category of documents requested is for the period 01/06/2022 to 27/07/2022 and is described as:

All emails; text messages or electronic messages of any kind between David Riby and Chris (Christopher) Renshaw about the applicant's end of year performance review rating calibration.

  1. [130]
    AB says that he believes these documents exist but that he does not know the method in which they were communicated between the parties and as such is requesting the information broadly. The Appellant repeats his submission that a matter in dispute in the proceedings is his contention that performance issues were manufactured as a way of bullying him. AB notes that the documents sought relate to a two-month period and that the information sought relates only to him and is not confidential relating to any other person.
  1. [131]
    Kmart objects on the basis that it doesn't understand the relevance of the documents sought. Further, Kmart says that at the time the Appellant ceased his employment, it had not completed the performance review rating calibration process. Kmart also cites the lack of particularity of documents sought and the expense and inconvenience of locating the documents as reasons for its objection. 
  1. [132]
    Kmart repeats that it does not retain text messages sent or received by former team members, including David Riby on Kmart issued phones. Kmart also says that the documents may contain confidential information including the performance review of peers.
  1. [133]
    In my view, any such documents, if they exist, are relevant to a matter in dispute in the proceedings. The Appellant has clearly identified his performance as a key issue in dispute and the documents he seeks go directly to AB's end of year performance review. I understand that the performance review calibration process was not complete, but in my view, discussions about it are relevant.
  1. [134]
    While the Appellant identifies 'emails, text messages and electronic messages' and this is a broad category, it is narrowed by the fact that he has identified the two people that the messages passed between, the specific content of the messages and a confined period in which the messages were exchanged. In my view, these documents will be able to be identified without great expense and inconvenience.
  1. [135]
    I understand that Kmart has not retained text messages from Mr Riby, however, if the messages were exchanged between he and Mr Renshaw and Mr Renshaw retains a work phone, a search should be undertaken for text messages about this topic. If the text messages are found, they must be produced.

Order regarding Document Category 15

  1. [136]
    I order that Kmart search emails, text messages and electronic messages exchanged between Mr David Riby and Mr Chris Renshaw for the period 01/06/2022 – 27/07/2022 and produce any documents relating to AB's end of year performance review rating calibration.
  1. [137]
    To the extent that the documents reveal information about other people's performance reviews, this information may be redacted as necessary to protect their privacy.

Document Category 16

  1. [138]
    The 16th category of documents the Appellant seeks to have disclosed is for the period 01/01/2022 to 27/07/2022 and is described as:

All emails; text messages; electronic messages; or documents of any kind impacting the applicant between David Riby and Chris (Christopher) Renshaw about any changes to Zones [redacted] relating to the applicant.

  1. [139]
    AB says that the relevance of these documents is set out in second page of his Form 29. The Appellant says that these documents will demonstrate the true motivation behind what he says is a manufactured artificial performance narrative to bully him and end his employment.
  1. [140]
    As with some other documents sought, AB says that he believes this information exists but that he does not know the method in which it was communicated between parties and so he is requesting a broad search of communication platforms.
  1. [141]
    The Appellant says that the information sought relates only to him and is therefore not confidential to the extent that it relates to other people. AB says that if the information refers to other people, those details can be redacted. AB says that with Kmart's vast resources, this information could be easily obtained from archives with little effort or expense.
  1. [142]
    Kmart objects to production of these documents on the basis that it is unclear what the relevance is to the matters in dispute in the proceedings. Further Kmart says that there is a lack of particularity in the description of the documents. Kmart again cites the inconvenience and expense involved in locating and identifying the documents to comply with the notice.
  1. [143]
    Kmart repeats its submission that it does not retain text messages sent or received by former team members, including David Riby. Kmart also objects on the basis that the documents sought are confidential.
  2. [144]
    I do not think that the Appellant has satisfactorily made out the relevance of this category of documents to the matters in dispute in this proceeding. It may be that this relevance will become clear after AB has filed a Statement of Facts and Contentions.
  1. [145]
    In any case, the category of documents sought does not contain sufficient specificity. Documents are sought for the period of approximately 6 months, a broad range of communications platforms would need to be searched and the description of the contents of the documents is vague.
  1. [146]
    In the absence of satisfactory relevance to the matters in issue weighing towards the making of an order to produce, the parameters of the documents sought are such that the difficulty of searching for and producing such documents weighs against ordering production.

Document Category 16 of the NNPD is set aside

  1. [147]
    The objection to this category of documents is upheld and Document Category 16 of the NNPD is set aside.

Document Category 17

  1. [148]
    This category of documents relates to the period between 01/05/2022 – 30/06/2022 and is described as:

All emails; text messages or electronic messages of any kind between David Riby or Chris (Christopher) Renshaw about the store visits … including the selection of stores, reasoning for selection of those stores and the discussion following those visits on 9 and 10 June and breakfast meeting on 10 June 2022.

  1. [149]
    AB says that the information sought relates only to himself and so is not confidential to the extent that it does not relate to any other person. AB believes the information exists but does not know the method of communication, hence the request for a broad set of communications.
  1. [150]
    AB says that this information is relevant as it relates to the manufacturing of an artificial performance narrative to bully the Appellant and end his employment. AB says that the information requested is for a period of less than two months and that Kmart has vast resources and can easily obtain this information from the archives.
  1. [151]
    Kmart objects on the basis that it is unclear what the relevance of the documents sought is to the matters at issue in the proceeding. Further, Kmart says that there is a lack of particularity within which the documents are described. Kmart repeats its ground of objection that an order for production would lead to considerable expense and inconvenience in attempting to locate and identify the documents. Kmart also repeats that it does not retain text messages sent or received by former team members, including David Riby on Kmart issued mobile phones. Kmart also says that the documents are confidential.
  1. [152]
    I find this category of documents is sufficiently relevant. It stands to reason that store visits in AB's area of responsibility are relevant to an issue in dispute between the parties, being that an artificial narrative was being manufactured regarding his performance. I do not consider this request to be a 'fishing expedition' as it relates to store visits that appear to have occurred on 9 and 10 June and a subsequent breakfast meeting. It is reasonable for the Appellant to believe that communications relating to the selection of stores, the visits to stores and the subsequent breakfast meeting exist, and are relevant to the matter of his performance.
  1. [153]
    The period for which the documents are sought is confined to several weeks and the topic or content of the documents sought and the people between whom they were exchanged is sufficiently clear that they will be able to be identified. While noting that Mr Riby's text messages sent and received on his Kmart phone have not been retained, to the extent that any such messages, if they exist, are retained on the phone of Mr Renshaw, these may be able to be located. I am not satisfied that any inconvenience or expense arising from searching for and disclosing these documents is such that it militates against ordering production.

Order for Production regarding Document Category 17

  1. [154]
    I order production of any emails, text messages, electronic messages or other documents shared between Mr Riby and Mr Renshaw between 01/05/2022 and 30/06/2022 regarding store visits to be undertaken in June 2022, visits undertaken on 9 and 10 June and the breakfast meeting on 10 June 2022.
  1. [155]
    To the extent that the documents are confidential, I order that they are produced to the Appellant for the sole purpose of this appeal.

Document Category 18

  1. [156]
    The 18th category of documents sought by AB relates to the period 01/05/2022 to 30/06/2022 and is described as:

All emails; text messages; electronic messages or documents of any kind between David Riby and/or Chris (Christopher) Renshaw and/or Jason Collins about the planned performance review meeting with the applicant in June 2022.

  1. [157]
    The Appellant says that the relevance of these documents is set out in his Form 29 and that it relates to his contention that Kmart manufactured an artificial narrative regarding his performance in order to bully him and end his employment.
  1. [158]
    AB says that the documents relate only to him and so are not confidential regarding any other person. The Appellant believes the documents exist but is not sure of the communication platform on which they were shared and so makes the request for the broad category of platforms.
  1. [159]
    AB notes the confined time period across which he seeks the documents and says that Kmart has vast resources and can easily obtain the information with little effort or expense.
  1. [160]
    Kmart objects on grounds that the relevance of the documents sought to the matters in dispute in the proceedings is unclear. Further, Kmart cites the lack of particularity with which the documents are described and the confidentiality of such documents as grounds for objection. Kmart says that assuming the documents exist and are relevant (which it disputes), there would be considerable inconvenience and cost involved in locating and identifying the documents. Kmart repeats that it does not retain the text messages sent or received by former team members.
  1. [161]
    This category of documents is clearly relevant to a matter in dispute in the proceedings. A planned performance review meeting in June 2022 is directly relevant to the Appellant's contention that performance issues had been manufactured in order to bully him and end his employment.
  1. [162]
    I am satisfied that the confined time period, the specificity with which the parties between whom the communication occurred and the narrow topic or content of communication, being the planned performance review meeting to be held with AB in June 2022 means that the documents across various communication platforms will be able to be identified without undue inconvenience or cost.
  1. [163]
    I understand that text messages on Mr Riby's Kmart mobile phone have not been retained, but to the extent that they exist, any such exchanges found on Mr Renshaw's or Mr Collins' mobile phones are to be produced.

Order for production of documents in category 18

  1. [164]
    I order production of the documents listed in category 18.
  1. [165]
    To the extent that any of these documents are confidential, I order that they are to be used for the sole purpose of this proceeding.

Document Category 19

  1. [166]
    This document category relates to the period 01/07/2021 to 27/07/2022 and is described as:

Summary from Kmart Australia showing the full year individual KPI results for the following for every individual zone in Australia: REM variance to hours tracker; Engagement; Shrink; Online DIF; NPS; AHR; Compliance & TRIFR.

  1. [167]
    AB says that this information is relevant to the issues in dispute as it relates to his claim that Kmart manufactured artificial performance issues to bully him and end his employment.
  1. [168]
    The Appellant says that he is already in possession of much of this information 'piecemeal by way of various reports retained at end of employment'. He says that he has not treated this information improperly during or after employment and that the information was made readily available during the reporting period to 1000+ employees and much is publicly disclosed in FY2022 financial reports by Wesfarmers. AB says the 'blackout period' on these results has substantially passed and that the information is therefore not commercially sensitive.
  1. [169]
    The Appellant says that this information summary would exist for the purposes of end of year calibration for the financial year 2022 and as such would not require considerable time or expense to locate.
  1. [170]
    Kmart objects on grounds of relevance and says that this request is merely a fishing expedition. Kmart also cites the highly confidential and sensitive nature of the documents and says that it does not publicly report information about the trading positions of its individual stores and zones.
  1. [171]
    Kmart also says that there would be considerable expense and inconvenience involved in trying to locate and identify the documents in order to comply with the notice.
  1. [172]
    Kmart notes that AB submits he 'is already in possession of much of this information' and so says it is not clear why he is requesting it. Kmart also notes that by retaining possession of this material, the Appellant is arguably in breach of his obligations on termination pursuant to his Agreement with Kmart. As I stated at paragraph [79] of these reasons, I will not consider this matter beyond canvassing the Nominated Party's objections to production.
  1. [173]
    AB has said that he already has much of this information in his possession and that much of it is publicly disclosed in FY2022 financial reports by Wesfarmers. To that extent, I agree that seeking the production of a substantial number of 'individual KPI results for every individual zone in Australia', could be categorised as a fishing expedition. Further, if the Appellant already possesses relevant information and knows of where he can source publicly available information, he has not made out the necessity of the production of the documents sought and it is unreasonable to put the non-party to the  inconvenience and incur the expense of producing the reports.

Document Category 19 of the NNPD is set aside.

  1. [174]
    The objection to Document Category 19 is upheld. Document Category 19 in the NNPD is set aside.

Document Category 20

  1. [175]
    For completeness, I note that the request for Document 20 has been removed in AB's amended NNPD.

Document Category 21

  1. [176]
    The period for which this category of documents is sought is 01/10/2022 to 31/12/2023. The documents are described as:

All internal correspondence including documents and emails within Kmart; and those submitted to any external parties (including Wesfarmers Group Team Cover) in relation to the applicant's claim for compensation, including but not limited to internal investigations completed, internal concerns raised about the claim and/or the ability to defend the claim; and or internal facts obtained in considering the merits of the claim.

  1. [177]
    The Appellant says that the relevance of these documents is set out in his Form 29 and that it relates to his claim that Kmart has manufactured an artificial performance narrative to bully him and end his employment.
  1. [178]
    AB says that the information he seeks relates only to him and is therefore not confidential to the extent that it does not relate to any other person.
  1. [179]
    The Appellant believes the information exists but does not know the method of communication and therefore seeks the broad category of various communication platforms. AB says that Kmart has vast resources and could easily obtain archived emails and records with little effort or expense.
  1. [180]
    The Appellant says that the information he seeks extends beyond the period of employment to reflect the fact that he raised his application for workers' compensation within the time limits after employment and that information was sought and shared internally in defence of his claim including periods of review by the workers' compensation regulator.
  1. [181]
    Kmart objects to this request for production of documents on the grounds that it is unclear what the relevance is to matters in dispute in the proceedings and specifically questions the relevance of documents created after 27 July 2022 which was the end date of AB's employment.
  1. [182]
    Kmart submits that the scope of the request is too broad and equates to a 'fishing expedition' as the Appellant has requested documents over a 14-month period which post-dates his employment with Kmart.
  1. [183]
    Kmart says that there is a lack of particularity within which the documents are described which makes it difficult to identify the documents sought. Kmart also says it is not able to conduct a generic IT search without knowing the initiating party and the recipient. Kmart submits that there would be considerable expense and inconvenience in trying to locate and identify the documents in order to comply with the notice.
  1. [184]
    Kmart further says that the documents sought are confidential and some of the documents sought are subject to a claim of legal professional privilege.
  1. [185]
    This category of documents is impermissibly broad even with the specified timeframe of 14-months. In my view, the process of ascertaining the potential relevancy of documents, or, in the first place, whether they exist, and should be disclosed would be unfeasible given the breadth of recipients and senders of communication across various platforms in this category. On this basis, the inconvenience and expense incurred by the non-Party would militate against an order for production. I agree with the non-party that such a broad category of documents could be considered a 'fishing expedition'.

Document Category 21 of the NNPD is set aside

  1. [186]
    The objection to production of this category of documents is upheld. Document Category 21 of the NNPD is set aside.

Conclusion

  1. [187]
    With respect to documents in categories 1, 2, 3, 4, 5, 8, 11, 15, 17 and 18, I order that these are produced by the Nominated Party. My reasons for ordering the production of these categories as well as the parameters I have set with respect to each category is considered at the following respective paragraphs: [38]–[41]; [41]–[46]; [49]–[54]; [58]–[61]; [65]–[67]; [84]–[85]; [106]–[110]; [133]–[137]; [152]–[155]; and [161]–[165].
  1. [188]
    I have determined to set aside the following categories of documents and uphold the objections to production. These categories not subject to an order of production are 6, 7, 9, 10, 12, 14, 16, 19 and 21. My reasons with respect to these categories are at the following respective paragraphs: [70]–[73], [78]–[81], [95]–[97], [100]–[101], [119]–[120], [126]–[128], [144]–[147], [173]–[174] and [185]–[186].

Orders

  1. [189]
    Pursuant to r 64G of the Rules, I make the following orders:
  1. Document categories 6, 7, 9, 10, 12, 14, 16, 19 and 21 are set aside.
  1. I order production of the following categories of documents:
  1. Document Category 1 in terms set out at paragraphs [39]–[41];
  1. Document Category 2 in terms set out at paragraphs [45]–[46];
  1. Document Category 3 in terms set out at paragraphs [52]–[53];
  1. Document Category 4 in terms set out at paragraphs [60]–[61];
  1. Document Category 5 in terms set out at paragraphs [66]–[67];
  1. Document Category 8 in terms set out at paragraph [85];
  1. Document Category 11 in terms set out at paragraphs [109]–[110];
  1. Document Category 15 in terms set out at paragraphs [136]–[137];
  1. Document Category 17 in terms set out at paragraphs [154]–[155]; and
  1. Document Category 18 in terms set out at paragraphs [164]–[165].
  1. Parties are to bear their own costs.

Footnotes

[1] In the table, these are numbered 1-21 as there are placeholders for the two categories of documents the Appellant removed from his amended NNPD (Namely, document categories 13 and 20).

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

[3] Ibid [4].

[4] [2023] ICQ 025.

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

[6] [2014] ICQ 010.

[7] Ibid [18].

Close

Editorial Notes

  • Published Case Name:

    AB v Workers' Compensation Regulator

  • Shortened Case Name:

    AB v Workers' Compensation Regulator

  • MNC:

    [2025] QIRC 113

  • Court:

    QIRC

  • Judge(s):

    Pidgeon IC

  • Date:

    08 May 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
DP World Brisbane Pty Ltd v Rogers & Anor [2014] ICQ 10
2 citations
Jump To
Cite 1 - [2014] ICQ 10
Cite 2 - [2014] ICQ 10
Mohr-Edgar v Legal Aid Queensland [2023] ICQ 25
2 citations
Jump To
Cite 1 - [2023] ICQ 25
Cite 2 - [2023] ICQ 25
Village/Nine Network Restaurants & Bars Pty Ltd v Mercantile Mutual Custodians Pty Ltd[2001] 1 Qd R 276; [1999] QCA 276
1 citation
Jump To
Cite 1 - [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
Xstrata Queensland Ltd v Santos Ltd [2005] QSC 323
1 citation
Jump To
Cite 1 - [2005] QSC 323

Cases Citing

Case NameFull CitationFrequency
AB v Workers' Compensation Regulator (No 2) [2025] QIRC 2122 citations
1

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