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  4. Wolff v MiHaven Pty Ltd (No. 3) - [2025] QIRC 137

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Wolff v MiHaven Pty Ltd (No. 3)[2025] QIRC 137

Wolff v MiHaven Pty Ltd (No. 3)[2025] QIRC 137

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Wolff v MiHaven Pty Ltd (No. 3) [2025] QIRC 137

PARTIES:

Wolff, Christian

(Applicant)

v

MiHaven Pty Ltd

(Respondent)

CASE NO:

WC/2024/97

PROCEEDING:

Application to lift a stay on a Form 29 Notice of Non-Party Disclosure

DELIVERED ON:

29 May 2025

SUBMISSIONS:

Appellant's submissions filed 17 March 2025

Affected Party submissions filed 31 March 2025

Respondent's submissions filed 8 April 2025

Worker's Compensation Regulator submissions filed 23 April 2025

Applicant's reply submissions filed 22 April 2025

MEMBER:

McLennan IC

HEARD AT:

On the papers

ORDERS:

The orders contained in paragraph [42] of these Reasons for Decision.

CATCHWORDS:

INDUSTRIAL LAW – APPLICATION TO LIFT A STAY ON A FORM 29 NOTICE OF NON-PARTY DISCLOSURE – objections to produce documents

LEGISLATION:

Industrial Relations (Tribunals) Rules 2011

r 64B, r 64E, r 64G

CASES:

Bunney v Workers' Compensation Regulator [2020] QIRC 210

Mullins v Workers' Compensation Regulator; Ex parte Drake International Pty Ltd (No. 2) [2020] QIRC 003

Reasons for Decision

  1. [1]
    On 12 February 2025, Mr Wolff filed a Form 29 Notice of Non-Party Disclosure ('the Form 29 Notice') with the Industrial Registry. 
  1. [2]
    The Form 29 Notice sought to compel production of various documents that Mr Wolff requires for the future substantive Hearing of his Workers' Compensation Appeal. 
  1. [3]
    The Form 29 Notice stated the "nominated party" to be (emphasis added):

MiHaven Pty Ltd T/A MiHaven Training

Human Resources Consultant / Human Resources Officer

  1. [4]
    The Form 29 Notice listed the "affected parties" to be Andrea Tunjic, Kristine Hunt, James Mort and Aedan Wolff.
  1. [5]
    The Workers' Compensation Regulator ('the Regulator') is Respondent in that substantive appeal matter. 
  1. [6]
    Mr Wolff contended that:

The documents sought 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 workplace mistreatment.  These issues were raised in Andrea Tunjic's witness outline, and the requested records will establish whether MiHaven Pty Ltd failed to take reasonable steps to mitigate foreseeable psychological harm.[1]

  1. [7]
    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

  1. [8]
    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.
  1. [9]
    I issued a Directions Order on 12 March 2025 to obtain written submissions from Mr Wolff and "the Nominated Party (and any Affected Parties)" – with an invitation to also hear the Regulator 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 5 March 2025, asking the Commission to make "An order directing Andrea Tunjic to comply with the Form 29 – Notice of Non-Party Disclosure …"  That is the subject of this Decision.
  1. [10]
    Submissions from the Regulator and Mr Aedan Wolff (Affected Party) were filed, together with submissions from Mr Wolff and MiHaven.
  1. [11]
    The Form 4 Application filed by Mr Wolff on 5 March 2025 also asks the Commission to order Ms Tunjic to provide the requested documents "in an electronic format." I will not make that order, for the reasons I have explained to the parties in writing on 3 March 2025.  Provision of hard copies of any documents that I may order, either in person or by post, complies with Rule 64H(1)(3) of the Tribunals Rules. While Mr Wolff has avidly advanced his preference to receive documents disclosed via email in the numerous Applications he has filed, the non-party to whom the Notices were directed do not wish to oblige him in that preference.  The Rules do not compel them to do so.  Mr Wolff and Mr Mort have earlier accepted my 3 March 2025 recommendation that documents provided are to be promptly posted to him.  There is no reason to depart from that determination.
  1. [12]
    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.
  1. [13]
    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.
  1. [14]
    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."

  1. [15]
    The Tribunals Rules envisage that a non-party may object to the production of documents.
  1. [16]
    Rule 64E(3)(d) of the Tribunals Rules says:

Objection to production

  1. The objection must –

…

  1. clearly state the reasons for the objection.
  1. [17]
    Rule 64E(4) further states that:

Objection to production

  1. 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

  1. [18]
    In this case, the non-party stated "documents have been produced, that to the best of knowledge and ability to search across multiple criteria, meet the Notice requirement;" notwithstanding hurdles such as lack of particularity including timeframes, lack of relevance and / or confidentiality concerns.[4] 
  1. [19]
    Mr Wolff takes issue with the correspondence not being prepared and / or signed by Ms Tunjic herself, as the non-party to whom the Notice is directed.  However, I note that Ms Tunjic will be called as a witness[5] in the substantive matter, her evidence subject to cross-examination, and credibility as a witness will be assessed at that time.  I concur with the Regulator's observations that:

… the Appellant will have the opportunity to make submissions in respect of any credibility matters or adverse inferences that he contends should be drawn by the Commission in respect of the evidence given by Ms Tunjic.  Ultimately it is the role of the Commissioner hearing the matter to reach judgements relating to any, "unsubstantiated and potentially misleading" evidence given by Ms Tunjic at the conclusion of the hearing.[6]

  1. [20]
    I also accept the Regulator's submission that Mr Mort's:

… response on behalf of Ms Tunic is not inappropriate given all material sought is ultimately the property of Mi-Haven … [and that] any notes produced by Ms Tunjic are necessarily created by her … [so] we do not agree that the provisions of the documents via Mr Mort or any other representatives of MiHaven puts the Appellant at a procedural disadvantage as alleged.[7]

  1. [21]
    I agree with MiHaven's assessment that the Notice issued contained rather broad and non-specific descriptors for categories of documents 1-5.
  1. [22]
    I have reproduced the 5 categories of documents sought by Mr Wolff below.  Under each category, MiHaven's correspondence dated 28 February and 8 April 2025 indicates whether or not requested documents have been produced. 

Categories of documents sought at Items 1-5

Item 1:

Emails & Internal Correspondence –

Communications between Ms. Tunjic, the Appellant, and MiHaven management regarding meetings, discussions, or concerns raised by the Appellant.

This includes any records where the Appellant requested meetings or documented concerns about workplace treatment, excessive workload, or psychological stress.

MiHaven's response dated 28 February 2025:

"A specific document (or documents) is not being requested, rather a blanket request to produce any internal email or correspondence pertaining to vague discussion points. The documents requested do not include a timeframe or specific date to search.

The request for documents is exceptionally broad and all encompassing, and without particularity. However, documents have been produced, that to the best of my knowledge and ability to search across multiple criteria, meet the Notice requirement."

Item 2:

Meeting Notes & HR Records -

Any official or informal notes, summaries, or reports maintained by Ms. Tunjic or Mi-Haven HR regarding discussions with the Appellant. 

These records will confirm whether workplace concerns were raised and if Ms. Tunjic accurately recalled the  nature of these conversations.

MiHaven's response dated 28 February 2025:

"A specific document (or documents) is not being requested, rather a blanket request to produce meeting notes and HR records pertaining to vague discussion points. The documents requested do not include a timeframe or specific date to search.

The request for documents is exceptionally broad and all encompassing, and without particularity. Due to the lack of particularity many of the documents produced are duplicates of Items 1, 3, and 4."

Item 3:

Records of Workplace Complaints Raised During Discussions -

Any internal documentation, complaints, or emails that indicate whether work-related issues, stress, or workload concerns were raised during discussions with Ms. Tunjic.

These records will confirm whether she accurately represented the nature of these discussions or omitted critical information.

MiHaven's response dated 28 February 2025:

"A specific document (or documents) is not being requested, rather a blanket request to produce records pertaining to vague discussion points. The documents requested do not include a timeframe or specific date to search.

The request for documents is exceptionally broad and all encompassing, and without particularity. Due to the lack of particularity many of the documents produced are duplicates of Items 1, 2, and 4."

Item 4:

Any HR or Management Follow-Up Actions -

Documents showing whether Ms. Tunjic or MiHaven management took any action in response to issues raised by the Appellant.

MiHaven's response dated 28 February 2025:

"A specific document (or documents) is not being requested, rather a blanket request to produce documents pertaining to vague discussion points. The documents requested do not include a timeframe or specific date to search.

The request for documents is exceptionally broad and all encompassing, and without particularity. Due to the lack of particularity many of the documents produced are duplicates of Items 1, 2, and 3."

Item 5:

Comparison with Other Employee HR Records -

If Ms. Tunjic recorded discussions with the Appellant regarding non-work matters, similar HR documentation should exist for other employees.

MiHaven's response dated 28 February 2025:

"A specific document (or documents) is not being requested, rather a blanket request to produce HR documents pertaining to all other MiHaven employees over an indefinite period, possibly since business operations commenced in 2011.

The request for documents is exceptionally broad and all encompassing, and without particularity. If documents did exist the content would be private or confidential in nature, and the content lacking relevance to the proceeding mentioned in the Notice.

This lack of particularity prohibits the ability for MiHaven to produce any documents requested in the timeframes required."

MiHaven's response dated 8 April 2025:

"Item 5 was also a blanket request, without specific dates or particulars of actual documents being requested.  The request was for HR records of any MiHaven employee, over an indefinite period, related to non-work matters discussed with Ms Tunjic.  If documents existed, the content would be HR private or confidential and lack relevance to the matter in the proceedings."

Mr Wolff's position

  1. [23]
    Mr Wolff submitted that "While MiHaven has provided some documents, several key records remain missing.  Attached is a summary of what has been received and what is still outstanding."[8]  Of the various 'Requested Documents' contained in Mr Wolff's attached schedule,[9] I note that some have since been provided (Settlement Agreement with Fair Work), Mr Wolff had earlier accepted my determination that some would not be provided (Prickly2Sweet Usage Logs) and the descriptors of Items 1-5 contained in this particular Notice did not appear to be listed in the schedule in any case.  That does not assist me.
  1. [24]
    However, it is clear from Mr Wolff's submissions that he actually seeks production of any documents that support:
  • the statements attributed to Ms Tunjic, as contained in the Respondent's Statement of Facts and Contentions; and
  • the evidence Ms Tunjic is expected to give at the Hearing of the substantive matter, as contained in the Witness Outline.[10]
  1. [25]
    As Mr Wolff has explained his position to be (emphasis added):

The Regulator's case against my claim is based on MiHaven's statements during the WorkCover investigation.  These statements were used to justify rejecting my claim, yet MiHaven is now unable to produce actual records that allegedly support its position.  If these records do not exist or contradict MiHaven's claims, this calls into question the fairness of the entire investigation.  Without access to the underlying records, I am at a disadvantage in properly responding to the claims made against me.

MiHaven argues that my request is too broad and lacks specificity, stating that I have not defined exact meetings, attendees, or timeframes.  However, the documents I am requesting relate to incidents and references that MiHaven itself introduced into the record...MiHaven cannot claim its own statements are valid while refusing to provide the evidence it relied upon to make them.  If these documents were reliable enough to justify rejecting my claim, the must be disclosed so they can be independently assessed.[11]

  1. [26]
    As the Commission will be hearing the substantive matter afresh, "the WorkCover investigation" is no longer relevant.  Mr Wolff's appeal is now against the review decision of the Regulator.  That may alleviate some of Mr Wolff's expressed concerns about WorkCover's determinative process.
  1. [27]
    However, Mr Wolff's desire to obtain any documentary evidence that exists to support the statements attributed to Ms Tunjic (as contained in the Respondent's Statement of Facts and Contentions) and the evidence Ms Tunjic is expected to give at the Hearing of the substantive matter (as contained in the Witness Outline) is reasonable – if such documentary evidence does exist, and the assertions are not simply what Ms Tunjic remembered was the case.  I accept that to be a reasonable request.
  1. [28]
    However, Mr Wolff's submissions as to what the Commission ought to make of any lack of documentary evidence to support claims attributed to Ms Tunjic go too far, in terms of making an "adverse inference" are an assessment properly made after all the evidence at the Hearing of the substantive matter (if at all).
  1. [29]
    With respect to Items 1-4, the Regulator explained that (emphasis added):

… we wish to clarify in response to the Appellant's position o the Outlines (now before the Commission) and our Statement of Facts and Contentions; that these documents were produced by the Regulator after our initial pre-hearing conferencing.  Ms Tunjic's Outline was created to put the Appellant on notice of the evidence we anticipate will be given at the hearing.  The evidence will include her memory of discussions had with Mr Wolff.  It is not agreed that Ms Tunjic has alleged she, "genuinely possesses records supporting these [her] claims in the Outline nor the Statement of Facts and Contentions as submitted by the Appellant.

In any case it is noted that MiHaven has responded to the best of their ability by providing notes they have available that fit within the criteria of documents requested by the Appellant for items 1, 2, 3 and 4.[12]

  1. [30]
    With respect to Items 1-4, my view is that if there are any documents that support a claim made in the Respondent's Statement of Facts and Contentions, that should have been already disclosed to Mr Wolff in the document discovery process subject of the Directions Order issued on 13 May 2024.  As ordered, the Regulator would have provided Mr Wolff with "a list of documents in their possession or under their control directly relevant to a matter in issue in the proceeding."  Mr Wolff was able to request copies of any document on that list from the Regulator by 17 June 2024.  I note that is now some time ago.  I suggest an efficient way forward is for the Regulator to again provide Mr Wolff with a copy of the list of documents and provide him with copies of any that he requests. 
  1. [31]
    Similarly, I note the Regulator submitted that pre-hearing conferencing had occurred with Ms Tunjic, in order to prepare the Witness Outline required to be provided to Mr Wolff.  I suggest an efficient way forward is for the Regulator to provide Mr Wolff with a copy of any documents it intends to rely on to support a statement in the Witness Outline, including:
  • Any Meeting Minutes, file note, memorandum, report or diary note, prepared by Ms Tunjic in May 2023, regarding discussions with Mr Wolff about his son's apparent unhappiness about his treatment from Mi-Haven employees.
  • Any Meeting Minutes, file note, memorandum, report or diary note, prepared by Ms Tunjic in August 2023, regarding Mr Wolff's complaints of being overworked, workplace stress and / or workplace treatment.
  • Any Meeting Minutes, file note, memorandum, report or diary note, prepared by Ms Tunjic in August 2023, regarding an incident in which Mr Wolff allegedly shut his office door on Ms Hunt.
  1. [32]
    I note that email from Mr Mort to Mr Wolff dated 21 November 2024, that refers to Ms Tunjic as "our HR Consultant" and specifies her "hourly charge out rate".  It appears that Ms Tunjic may not be directly employed by MiHaven, in which case it is possible that she may have kept her own files or records separately from those of the company. 
  1. [33]
    Out of an abundance of fairness and caution, I will also order that Ms Tunjic produce to Mr Wolff any documents in her possession or under her control as described below:
  • Any Meeting Minutes, file note, memorandum, report or diary note, prepared by Ms Tunjic in May 2023, regarding discussions with Mr Wolff about his son's apparent unhappiness about his treatment from Mi-Haven employees.
  • Any Meeting Minutes, file note, memorandum, report or diary note, prepared by Ms Tunjic in August 2023, regarding Mr Wolff's complaints of being overworked, workplace stress and / or workplace treatment.
  • Any Meeting Minutes, file note, memorandum, report or diary note, prepared by Ms Tunjic in August 2023, regarding an incident in which Mr Wolff allegedly shut his office door on Ms Hunt.
  1. [34]
    Mr Wolff should now know that if there is not a document disclosed to him by the Regulator that evidences a particular claim made in the Statement of Facts and Contentions, then it is likely to be made out by the oral evidence alone of a witness at the Hearing of the substantive matter.  In that case, it is the witnesses' own (often different) recollections of what occurred that will be presented to the Commission, which the other party will have the opportunity to test in cross-examination.  That is the normal course.  It is for the Commissioner who hears the matter to decide which witness account is believed, especially so in the absence of any supporting documentary evidence.
  1. [35]
    I believe Mr Wolff has erroneously assumed that all statements and claims attributed to Ms Tunjic (in this case, and to others in the previous interlocutory decisions I have issued in this matter) must be able to be supported by documents.  If Mr Wolff does not have that documentary proof, he appears to have assumed it is being withheld from him.  It may well be the case that the documents do not exist, but are simply a matter of what a person remembers.  Memories fade and witness recollections of events differ – Mr Wolff will have opportunity to give his own evidence and account of all that at the Hearing.
  1. [36]
    If any other relevant documents came to light after that time, the parties are reminded that they have an ongoing duty of disclosure to each other.
  1. [37]
    With respect to Item 5, the Regulator has correctly observed that Mr Wolff's request for documents recording Ms Tunjic's discussions with other employees about non-work matters (emphasis added):

… is plainly irrelevant to the proceedings.  Whether or not Ms Tunjic recorded notes of meetings with other unnamed employees and their "non-work related issues", does not go to establishing a matter in issue between the parties.[13]

  1. [38]
    I will make no order with respect to Item 5.

Conclusion

  1. [39]
    The effect of this Decision is that Ms Tunjic must disclose the documents ordered by variation of the Notice (where such documents exist and are under her possession or control) within 14 days, pursuant to r 64B.
  1. [40]
    The Regulator is the Respondent in the substantive matter, and so not a 'non-party' to be subject of any order in this Application.  As a model litigant though, I have requested their assistance to the Commission and Appellant to provide documents with respect to Items 1-4, in accordance with an efficient way forward as outlined at [30]-[31] above.  I would respectfully request that also occur within 14 days.
  1. [41]
    Bearing in mind that the default position under Rule 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.
  1. [42]
    I order accordingly.

Orders

1.The Notice to Produce served on "MiHaven Pty Ltd T/A MiHaven Training, Human Resources Consultant / Human Resources Officer" (Ms Andrea Tunjic) on 12 February 2025 is varied, with respect to the categories of documents referred to at numbers 1-4 at page 3 of the itemised 'Schedule of documents'. 

Ms Tunjic must produce the documents below that may be in her possession or under her control:

1.Any Meeting Minutes, file note, memorandum, report or diary note, prepared by Ms Tunjic in May 2023, regarding:

i.Discussions with Mr Wolff about his son's apparent unhappiness about his treatment from Mi-Haven employees.

2.Any Meeting Minutes, file note, memorandum, report or diary note, prepared by Ms Tunjic in August 2023, regarding:

i.Mr Wolff's complaints of being overworked, workplace stress and / or workplace treatment.

ii.An incident in which Mr Wolff allegedly shut his office door on Ms Hunt.

2.Each party is to bear their own costs.

Footnotes

[1] Form 29 – Notice of Non-Party Disclosure, filed 10 February 2025.

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

[3] [2020] QIRC 003.

[4] Correspondence from Mr Mort to Mr Wolff dated 28 February 2025.

[5] Regulator's submissions filed 23 April 2025, [5].

[6] Ibid [6]-[7].

[7] Ibid [15]-[16].

[8] Appellant's submissions filed 17 March 2025, [4], VI Schedule 1.

[9] Ibid VI Schedule 1.

[10] Now before the Commission, as noted by the Regulator.

[11] Appellant's submissions filed 17 March 2025, [6]-[7].

[12] Regulator's submissions filed 23 April 2025, [10].

[13] Regulator's submissions filed 23 April 2025, [13].

Close

Editorial Notes

  • Published Case Name:

    Wolff v MiHaven Pty Ltd (No. 3)

  • Shortened Case Name:

    Wolff v MiHaven Pty Ltd (No. 3)

  • MNC:

    [2025] QIRC 137

  • Court:

    QIRC

  • Judge(s):

    McLennan IC

  • Date:

    29 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
Bunney v Workers' Compensation Regulator [2020] QIRC 210
1 citation
Jump To
Cite 1 - [2020] QIRC 210
Mullins v Workers' Compensation Regulator; Ex parte Drake International Pty Ltd (No 2) [2020] QIRC 3
2 citations
Jump To
Cite 1 - [2020] QIRC 3
Cite 2 - [2020] QIRC 3

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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