Wolff v MiHaven Pty Ltd[2025] QIRC 135

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

Reasons for Decision

1. [1]
   On 10 February 2025, Mr Wolff filed a Form 29 – Notice of Non-Party Disclosure with the Industrial Registry ('the Form 29 Notice'). 

2. [2]
   The Form 29 Notice sought to compel his former employer, MiHaven Pty Ltd, to produce various documents that Mr Wolff requires for the future substantive Hearing of his Workers' Compensation Appeal.

3. [3]
   The Workers' Compensation Regulator ('the Regulator') is Respondent in that substantive appeal matter. 

4. [4]
   Mr Wolff contended that the documents held by MiHaven Pty Ltd ('the company') are:

… directly relevant to determining whether MiHaven Pty Ltd engaged in unreasonable management actions, contributing to the Appellant's psychological injury through excessive workload, lack of support and mishandling of compliance duties, complaints and investigations …^[1]

5. [5]
   The question of whether or not Mr Wolff was subjected to "reasonable management action taken in a reasonable way"^[2] will be significant in determining his Workers Compensation Appeal.

The Tribunals Rules

6. [6]
   By way of application under r 64G of the Industrial Relations (Tribunals) Rules 2011 ('the Tribunals Rules'), Mr Wolff has sought to have that Form 29 Notice enforced.  Under that rule, the tribunal's options are to order that the Notice be:

• Enforced (by way of lifting the stay on the notice); or

• Varied; or

• Set aside.

7. [7]
   I issued a Directions Order on 4 March 2025 to obtain written submissions from Mr Wolff and MiHaven, with an invitation to also hear the Regulator and other named affected parties should they so desire.  Those written submissions were sought to inform my decision with respect to the Form 4 – Application filed by Mr Wolff on 26 February 2025, asking the Commission to order the company to produce the documents listed in the Form 29 Notice.  Submissions from the Regulator and Mr Aedan Wolff (Affected Party) were filed.

8. [8]
   Rule 64B(1) of the Tribunals Rules says (emphasis added):

Notice requiring non-party production

1. A party to a proceeding may, by notice of non-party production, require a person who is not a 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. directly relevant to a matter in issue in the proceeding; and
2. in the possession or under the control of the non-party; and
3. that is a document the non-party could be required to produce at the hearing for the proceeding.

9. [9]
   The key point of the Tribunal Rule above is that a party to a proceeding may compel a third party to produce a "directly relevant" document "in the possession or under the control of" the non-party.  Direct relevance is first assessed with reference to the Statement of Facts and Contentions filed.

10. [10]
    In Mullins v Workers' Compensation Regulator; Ex parte Drake International Pty Ltd (No. 2),^[3] Commissioner Black considered the application in these terms:

In Goldsmith v Sandilands, the High Court said that "evidence is relevant if it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding."

In Xstrata Queensland Ltd v Santos Ltd & Ors, McMurdo J was asked to consider the distinction between the test of relevance under the general law and the requirement of the Uniform Civil Procedure Rules 1999 (Qld) (UCRP) which is that only directly relevant documents must be disclosed.  In this respect, McMurdo J said that "a document is directly relevant in this sense only if it tends to prove or disprove an allegation in issue in the proceedings."

11. [11]
    The Tribunals Rules envisage that a non-party may object to the production of documents.

12. [12]
    Rule 64E(3)(d) of the Tribunals Rules says:

Objection to production

3. The objection must –

…

4. clearly state the reasons for the objection.

13. [13]
    Rule 64E(4) further states that:

Objection to production

4. The reasons may include, but are not limited to, the following –

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;
2. the lack of relevance to the proceeding of the documents mentioned in the notice;
3. the lack of particularity with which the documents are described;
4. a claim of privilege;
5. the confidential nature of the documents or their contents;
6. the effect production would have on any person;
7. if the objector was not served with the notice – the fact that the objector should have been served.

Objections

14. [14]
    In this case, the company objected to providing only some of the documents sought by Mr Wolff. 

15. [15]
    The company's response to the Form 29 Notice is contained in correspondence dated 27 February 2025.  In summary, that correspondence outlined the company provided documents pertaining to Items 3, 4, 5 and 8 of the Notice.  Though the company further stated documents pertaining to Items 6, 7 and 9 were not in its possession or under its control.

16. [16]
    In those circumstances, one may assume Mr Wolff's Application has been filed to obtain documents referred to in Items 1 and 2.  However, as his Application does not expressly state whether he is content with the company's responses to Items 3 to 9, out of an abundance of fairness and caution, I will address those matters briefly here too.

Items 4 and 5 of the Notice

17. [17]
    With respect to Item 4, described in the Form 29 Notice, Mr Wolff had sought the following documents:

4 Investigation Records (Aedan Wolff's Apprenticeship) – Any reports, emails or notes documenting how Mi-Haven assessed and responded to the Appellant's concerns regarding his son's training.

18. [18]
    Mr Aedan Wolff's (Affected Party) submission dated 31 March 2025 support the Applicant's Form 29 Notice with respect to Item 4.

19. [19]
    With respect to both Item 4 and Item 5, the company's correspondence dated 27 February 2025 stated that the "Documents are produced" to Mr Wolff, as requested. 

20. [20]
    Where production of documents sought in the Notice has not been objected to, the Notice is not stayed.  The Commission is not required to make an order in such circumstances. 

Items 3 and 8 of the Notice

21. [21]
    In the Form 29 Notice, Mr Wolff sought the following documents:

3Staff Role Descriptions – Job descriptions for Kris Hunt, Thalia Carey, and Kareena White to compare how compliance duties were distributed post-Appellant's departure.

8Post-Employment Compliance Staffing Records – Documents showing who was assigned compliance tasks after the Appellant's departure.

22. [22]
    The company's correspondence dated 27 February 2025 stated that:

Item 3:

The requested documents are not directly relevant to the matter at issue in the proceeding as they relate to staff role descriptions post-Appellant's departure.

Additionally, the requested documents lack particularity in the timeframes required for the role descriptions.

As a Registered Training Organisation (RTO) experiencing fluctuating demands for existing training and new course development, employee roles, responsibilities, and workload distribution have inevitably evolved over the 14 months since the Appellant's departure.

However, the following documents have been made available:

•  Kris Hunt – pre-Appellant's departure unchanged since July 2023.

•  Tahlia Carey – January 2024.

•  Kareena White – pre-Appellant's departure unchanged November 2023.

Item 8:

The requested documents are not directly relevant to the matter at issue in the proceedings as they relate to compliance staffing records post-Appellant's departure.

Additionally, the request for documents lacks particularity in the timeframes required considering it is over 14 months since the departure of the Appellant.

However, refer to Item 3 for documents that have been available.

23. [23]
    In summary, the company's response was that the 'Item 3' and 'Item 8' documents sought were not directly relevant to a matter at issue in the proceeding and that the requested documents lack particularity in the timeframes required for the role descriptions.  Notwithstanding that, the company did make available documentation relating to the positions of Ms Hunt, Ms Carey and Ms White.

24. [24]
    In these types of matters, it is often observed that what happens after an injury cannot have contributed to it.  For that reason, I do not consider the position descriptions of other employees – or who was allocated what compliance duties – after Mr Wolff's departure is directly relevant to the substantive matter. 

25. [25]
    The rules provide that such "lack of relevance" is a reason why the provision of a document sought may be objected to.  As I have agreed with the company's position, I will not compel the company to produce any further documentation with respect to Items 3 and 8.

26. [26]
    Notwithstanding that, it is noted that while the company had reasonable grounds for objection, it has provided some documentation requested by Mr Wolff anyway.  That is a sensible approach in the circumstances.

Items 6, 7 and 9 of the Notice

27. [27]
    In the Form 29 Notice, Mr Wolff sought the following documents:

6 Deed of Settlement with Fair Work – Any settlement agreement or HR documentation confirming financial arrangements (or lack thereof) related to Mi-Haven's financial assistance

7 Workload Documentation – Any Ganti charts, task lists, or internal planning records showing the Appellant's responsibilities, deadlines and workload.

…

9 Financial and Correspondence Records, Emails, messages, bank statements, receipts or any written agreement documenting financial assistance or accommodation support provided by James or Sarah Mort, including any repayment expectations.

28. [28]
    The company's correspondence dated 27 February 2025 stated that:

Item 6:

No document/s is/are in the possession or control of the nominated party.

Item 7:

No document/s is/are in the possession or control of the nominated party.

…

Item 9:

No document/s is/are in the possession or control of the nominated party.

Items 6 and 9

29. [29]
    Under the Rules, a non-party is not required to produce a document sought that is not "in the possession or under the control of the non-party."  The company has stated is the case here, with respect to documents under Items 6, 7 and 9.

30. [30]
    Mr Wolff has filed a document which indicates Mr Mort's evidence will include parameters of financial assistance provided to him for accommodation, travel to Germany and funding further study.  Items 6 and 9 sought in the Notice pertain to financial assistance / arrangements said to have been provided to Mr Wolff.  Mr Wolff asserted that:

MiHaven Pty Ltd appears to have made statements portraying itself as an exceptionally reasonable employer, claiming it provided me with financial assistance and housing support during an alleged eviction.

I strongly deny these claims and submit that they were made to enhance MiHaven Pty Ltd's credibility while undermining my own.

I will be able to demonstrate that these claims never occurred in the way they have been presented by the Respondent.

The absence of documentary evidence supporting these claims suggests fabrication, particularly as the requested documents have not been disclosed in response to the Form 29 request.

If MiHaven Pty Ltd genuinely provided financial support, as alleged in its statements to WorkCover and the Regulator, it should be able to produce documents verifying these claims.

Failure to provide these documents strongly suggests that these statements were made without factual basis and may have been designed to damage my credibility.

31. [31]
    As earlier noted, the company stated that such documents are not in its possession or under its control.  However, as it appears Mr Mort will be called as a witness by the Regulator at the Hearing of the substantive matter, Mr Wolff will have the opportunity to cross-examine him on the financial assistance claim.  As envisaged by the Rules, that may well be "another reasonably simple and inexpensive way of proving the matter sought to be proved by the document."  The Industrial Commissioner who hears the matter will have the opportunity to make their own assessment of witness credit, with respect to that and all other matters. 

32. [32]
    Mi-Haven's 1 April 2025 correspondence attached a copy of the "Deed of Settlement with Fair Work" dated 22 April 2024.  That is referred to as Item 6 in the Form 29 Notice.  As that Deed contains Mr Wolff's signature, I cannot see why he himself did not retain a copy of it.

33. [33]
    For those reasons, I will not compel the company to produce any further financial documentation, with respect to Items 6 and 9. 

Item 7

34. [34]
    Item 7 does not pertain to financial matters, but rather to "Workload Documentation", described by Mr Wolff to include "Any Ganti charts, task lists, or internal planning records showing the Appellant's responsibilities, deadlines and workload."

35. [35]
    The company has stated that such documents sought under Item 7 are not in its possession or under its control. 

36. [36]
    As earlier explained at paragraph [31] above, it appears Mr Mort will be called as a witness by the Regulator at the Hearing of the substantive matter, so Mr Wolff will have the opportunity to cross-examine him on those matters.  However, I also note the Respondent's Statement of Facts and Contentions makes reference to:

1. The position description of the Compliance Officer role;^[4]

2. Performance milestones / standards that Mr Wolff was required to achieve, in order to progress to the next level in the classification structure;^[5]

3. "Mentoring and training" provided to Mr Wolff by Ms Hunt;^[6]

4. Agreed tasks that Mr Wolff was to complete during his period of absence in Germany in the period proximate to December 2023;^[7]

5. A probation review where Mr Wolff was said to be "completing approximately only 50% of the Compliance Officer tasks";^[8]

6. An email from Ms Hunt to Ms Tunjic, in which the former stated that she would "need to hand over the remaining compliance tasks";^[9]

7. Weekly one-on-one work review discussions;^[10]

8. Weekly team meetings;^[11]

9. Auditing monthly compliance activities.^[12]

37. [37]
    I appreciate the Regulator's 15 April 2025 submission with respect to the Commission's decision in Bunney v Workers' Compensation Regulator,^[13] however I imagine the Regulator would only include material in its Statement of Facts and Contentions that it considered to be directly relevant to the substantive matter.  It appears to me that the items at [36] above do pertain to task lists, internal planning and Mr Wolff's responsibilities, deadlines, and workload.  Any such documents would ordinarily be expected to appear in the "list of documents" provided by the Regulator to Mr Wolff, in accordance with the Directions Order issued on 13 May 2024.  That seems to be the simplest place to start to identify any such documents in existence.  I note the Regulator's submission that "The Appellant has been put on notice of the Regulator's case by way of our Statement of Facts and Contentions and Outlines of Witness Evidence.  All relevant material obtained throughout the course of our preparations for hearing so far has been disclosed."  It is understood that the parties have an ongoing duty of disclosure to each other, so any further documentation either may obtain (that is relevant to the matters at issue) must be exchanged without delay.  Therefore, the Regulator may be well-placed to assist Mi-Haven in locating the documents referred to in the Respondent's Statement of Facts and Contentions, so the documents may in turn be provided to Mr Wolff.

38. [38]
    I will make an Order to vary the Notice to compel MiHaven to produce any documents referred to in [36] above, created in the period between 25 July 2022^[14] and 1 September 2023.

Items 1 and 2 of the Notice

39. [39]
    In the Form 29 Notice, Mr Wolff sought the following documents:

1 Internal emails & Correspondence – Emails between MiHaven management discussing the Appellant's workload, stress, compliance duties, or WorkCover claim.

2 Meeting Minutes & Notes – Records of meetings where workload distribution, compliance tasks, and staffing issues were discussed.

40. [40]
    With respect to both Items 1 and 2, the company has responded that it:

• does not object to producing the requested documents per se;

• the documents are described lack particularity;

• a specific document is not identified, rather a 'blanket request' without dates, authors / attendees, type ascribed;

• lack of particularity of documents sought would impose a burden of significant expense and inconvenience on the company.  With respect to Item 1, an order to produce would necessitate the employ of "an external Information Technology (IT) support company to restore all emails, beyond the standard 12-month Microsoft Outlook retention period, and to then search all emails to possibly identify the requested documents."

41. [41]
    In circumstances where an objection is made on the grounds of expense and operational inconvenience in complying with the notice, Rule 64I offers a solution.  The rule provides that the party pay the 'reasonable expenses' of producing the required documents as incurred by the company.  For that reason, I am not persuaded to set aside the Notice on that basis.  The company's account of the hurdles to producing the required documents are neither so significant nor so onerous as to outweigh Mr Wolff's right to discover them to assist his preparation for the Hearing of the substantive matter.

42. [42]
    However, the company has also failed to produce the material described as Items 1 and 2 because the documents sought are not clearly identified, but are instead a "blanket request".  That argument has merit.  Attempts to discover broad categories of unparticularised documents have been characterised as "fishing expeditions" and the Commission is not generally minded to grant such Applications.

43. [43]
    Though I am also mindful of the need for the timely and efficient conduct of matters, that object would be defeated if the Application with respect to Items 1 and 2 were denied entirely, such that Mr Wolff then set about to file and serve further Form 29 Notices that better particularised and narrowed the documents sought.

44. [44]
    For those reasons, I believe the fairest and most practical outcome is achieved by making an order to vary the Notice with respect to Items 1 and 2. 

Item 1

45. [45]
    The group of documents sought by Mr Wolff can better particularised by:

• Document type: Internal emails;

• Time period: 25 July 2022^[15] to 1 September 2023;^[16]

• Subject matter: Mr Wolff's workload and / or stress;

• Sent between any of the following people: Mr James Mort, Ms Kristine Hunt and / or Ms Andrea Tunjic;

46. [46]
    I will vary the Notice to order production of the above category of documents.

47. [47]
    I note Mr Wolff also sought non-party disclosure of documents about "compliance duties" and his "WorkCover claim".  My view on those remaining matters are that:

• My decision to vary the Notice at [38], with respect to the earlier consideration of Item 7, addresses Mr Wolff's attempt to obtain relevant documents about "compliance duties".

• Internal emails that may (or may not) have been sent after Mr Wolff's injury was said to have occurred, are not directly relevant to the substantive matter.

Item 2

48. [48]
    Mr Wolff sought disclosure of "Meeting Minutes & Notes – Records of meetings where workload distribution, compliance tasks, and staffing issues were discussed."  The company has argued that is far too broad and I accept that to be the case. 

49. [49]
    My consideration of Item 7 above addressed disclosure of documents relevant to workload and compliance tasks - other than documents produced in preparation for, or as a result of, the meeting between Mr Wolff and Ms Tunjic that was held on 1 August 2023.^[17]  The Respondent asserted that was the first time Mr Wolff raised a complaint about workload. 

50. [50]
    The appropriate approach is to vary the Notice, to order that the company disclose:

• Any Agenda that may have been produced for the 1 August 2023 meeting;

• Any Minutes of the 1 August 2023 Meeting that may have been produced;

• Any email or internal memorandum that may have been sent by Ms Tunjic to either Mr Mort, Ms Hunt or Mr Wolff (between 1 August 2023 and 1 September 2023) regarding Mr Wolff's workload and / or stress and / or the 1 August 2023 meeting.

51. [51]
    I will make no order pertaining to "staffing issues".  That is too broad and could capture documents about other staff members not directly relevant to a matter at issue. 

Conclusion

52. [52]
    The effect of this Decision is that MiHaven Pty Ltd must disclose the documents ordered by variation of the Notice (where such documents exist and are under its possession or control) within 14 days, pursuant to r 64B.

53. [53]
    Bearing in mind that the default position under r 64G(3) is that each party to an application such as this bears their own costs, and given the brevity of this matter, I am not minded to award costs in this instance.  Each party is to bear their own costs of this application.

54. [54]
    I order accordingly.

Orders

1.The Notice to Produce served on MiHaven Pty Ltd on 10 February 2025 is varied, with respect to the categories of documents referred to at numbers 1, 2 and 7 at page 3 of the itemised 'Schedule of documents'.  Such that it reads:

1.All internal emails that may have been sent between Mr Mort and / or Ms Hunt and / or Ms Tunjic, in the period from 25 July 2022 to 1 September 2023 (inclusive), about Mr Wolff's workload and / or stress. 

2.All documents that may have been produced pertaining to the meeting held on 1 August 2023 between Ms Tunjic and Mr Wolff, specifically –

1. Any documents that may have been produced by Ms Tunjic in preparation for the 1 August 2023 meeting with Mr Wolff, such as an: Agenda, calendar invite or email exchange between the pair about matters to be discussed at the meeting;

2. Any documents that may have been produced by Ms Tunjic (in the period from 1 August 2023 to 1 September 2023) about either the 1 August 2023 meeting, Mr Wolff's workload and / or stress, such as a diary note;

3. Any documents that may have been produced by Ms Tunjic (in the period from 1 August 2023 to 1 September 2023) pertaining to either the 1 August 2023 meeting, Mr Wolff's workload and / or stress, such as a: file note, diary note, or internal memorandum;

4. Any email exchange that may have occurred between Ms Tunjic and Mr Mort, Ms Hunt and / or Mr Wolff (between 1 August 2023 and 1 September 2023) about either the 1 August 2023 meeting, Mr Wolff's workload and / or stress;

5. Any Minutes of the 1 August 2023 Meeting that may have been produced.

7.All documents referred to in the Respondent's Statement of Facts and Contentions that may have been produced, in the period between 25 July 2022 and 1 September 2023, specifically –

1. Compliance Officer Position Description;

2. Documented performance standards that Mr Wolff was required to achieve, in order to progress to the next level in the classification structure;

3. Documented "Mentoring and training" that may have been provided to Mr Wolff by Ms Hunt;

4. Documented agreed tasks that Mr Wolff was to complete during his period of absence in Germany in the period proximate to December 2023;

5. The probation review where Mr Wolff was said to be "completing approximately only 50% of the Compliance Officer tasks";

6. An email from Ms Hunt to Ms Tunjic, in which the former stated that she would "need to hand over the remaining compliance tasks";

7. Agendas and minutes that may have been produced for the weekly one-on-one work review discussions, that may have been held with Mr Wolff;

8. Agendas and minutes that may have been produced for the weekly team meetings, that included Mr Wolff;

9. Documented Audits of monthly compliance activities, that included tasks completed by Mr Wolff, that may have been produced.

2.Each party is to bear their own costs.