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State of Queensland (Department of Families, Seniors, Disability Services and Child Safety) v Workers' Compensation Regulator[2025] QIRC 179

State of Queensland (Department of Families, Seniors, Disability Services and Child Safety) v Workers' Compensation Regulator[2025] QIRC 179

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

State of Queensland (Department of Families, Seniors, Disability Services and Child Safety) v Workers' Compensation Regulator [2025] QIRC 179

PARTIES:

State of Queensland (Department of Families, Seniors, Disability Services and Child Safety)  

(Appellant)

v

Workers' Compensation Regulator

(Respondent)

CASE NO:

WC/2025/31

PROCEEDING:

Objections to notices of non-party production

DELIVERED ON:

11 July 2025

DATES OF WRITTEN SUBMISSIONS:

Appellant's written submissions filed on 15 May 2025 and written submissions in reply filed on 26 June 2025

Written submissions of Dr Carolyn Perry filed on 28 May 2025

Written submissions of Ms Silvana Clement filed on 12 June 2025 and on 7 July 2025

MEMBER:

Merrell DP

HEARD AT:

On the papers

ORDER:

The orders contained in paragraph 95 of these reasons for decision

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE OR TERRITORY COURTS – PROCEDURAL ASPECTS OF EVIDENCE – SUBPOENAS AND NOTICES TO PRODUCE AT HEARING – GENERALLY – worker employed by the Appellant as a Senior Team Leader in what was the Department of Child Safety, Seniors and Disability Services and Multicultural Affairs – worker applied for workers' compensation pursuant to the Workers' Compensation and Rehabilitation Act 2003 in respect of a psychological/psychiatric injury – application for worker's compensation rejected by WorkCover Queensland – on application for review by the worker, the Respondent set aside the decision of WorkCover Queensland and made a new decision that the worker's application for workers' compensation was one for acceptance –  appeal by the Appellant to the Queensland Industrial Relations Commission against the review decision of the Respondent – in March 2025, the Appellant served notices of non-party production on the worker's general practitioner, the worker's accredited mental health social worker, Medicare and the Appellant's Employee Assistance Provider – the worker objected to all four notices of non-party production – the worker's accredited mental health social worker objected to the notice of non-party production served on her – Appellant applied to lift the stays on the notices of non-party production brought about by the service on it of the objections and to vary certain of the notices of non-party production – whether the documents sought to be produced by virtue of the notices of non-party production are directly relevant to an issue in the Appellant's appeal against the review decision – whether the stays on the operation of the notices of non-party production should be lifted – whether the direct relevance of those documents outweighs the alleged effect on the mental health and recovery of the worker and the right to privacy of the worker under s 25 of the Human Rights Act 2019 – whether variations proposed by the Appellant to certain notices of non-party production should be made – orders that certain notices of non-party production be varied – orders that the stays on the operation of the notices of non-party production be lifted

LEGISLATION:

Charter of Human Rights and Responsibilities Act 2006, s 13

Industrial Relations (Tribunals) Rules 2011, r 6, r 64B, r 64C, r 64E, r 64F and r 64G

Human Rights Act 2019, s 13 and s 25

Uniform Civil Procedure Rules 1999, r 242, r 243, r 244, r 245, r 246 and r 247

Workers' Compensation and Rehabilitation Act 2003, s 32, and s 553

CASES:

Adani Mining Pty Ltd & Anor v Pennings [2025] QSC 157

Avis v WorkCover Queensland [2000] QIC 67; (2000) 165 QGIG 788

CSR Ltd v Casaron Pty Ltd [2003] QSC 126

Chenoweth v ING Australia Ltd [2004] QSC 143

Church v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 031; (2015) 252 IR 461

Corney v Workers' Compensation Regulator [2023] QIRC 170

Elias v Commissioner of Taxation [2002] FCA 845; (2002) 123 FCR 499

Goldenwater LDL Pty Ltd & Ors v Kin Sun Chan & Ors [2020] QSC 358

Johnston v Carroll [2024] QSC 2; (2024) 329 IR 365

Kavanagh v Commonwealth [1960] HCA 25; (1960) 103 CLR 547

Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705

Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24

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

Murphy Operator & Ors v Gladstone Ports & Anor (No 5) [2020] QSC 36

Newberry v Suncorp Metway Insurance Ltd [2006] QCA 48; (2006) 1 Qd R 519

Niceforo v Berkshire Hathaway Specialty Insurance Company & Ors [2023] QSC 282

State of Queensland (Queensland Health) v Q-Comp and Beverley Coyne [2003] ICQ 9; (2003) 172 QGIG 1447

State of Queensland (Department of Health) v WorkCover Queensland [2020] QIRC 113

Theiss Pty Ltd v Q-Comp [2010] ICQ 27

Thompson v Minogue [2021] VSCA 358; (2021) 67 VR 301

Westsand Pty Ltd v Johnson [1999] QSC 337

Xstrata Queensland Ltd v Santos Ltd & Ors; Santos Ltd & Ors v Xstrata Queensland Ltd [2005] QSC 323

Reasons for Decision

Introduction

  1. [1]
    Ms Silvana Clement is employed by the State of Queensland through what is now the Department of Families, Seniors, Disability Services and Child Safety ('the Department').[1] On 12 September 2023, Ms Clement, pursuant to the Workers' Compensation and Rehabilitation Act 2003 ('the Act'), made an application for workers' compensation in respect of a psychological injury. At the material time, Ms Clement was working as Team Leader for Child Safety at Morayfield.
  1. [2]
    Ms Clement's application for workers' compensation was rejected by WorkCover Queensland.  Ms Clement then applied to the Workers' Compensation Regulator ('the Regulator') for a review of the WorkCover decision. By review decision dated 26 April 2024, the Regulator set aside the WorkCover decision and returned the matter to WorkCover, with certain directions, to make a fresh decision. One of the directions was that Ms Clement be reviewed by an independent psychiatrist.[2] Following a report dated 6 September 2024 by Dr Benjamin Duke, Consultant Psychiatrist ('Dr Duke'), by decision dated 26 September 2024, WorkCover again rejected Ms Clement's application for compensation.[3] Following Ms Clement's further application to the Regulator, by a second review decision dated 16 January  2025, the Regulator decided that Ms Clement's application for workers' compensation was one for acceptance ('the review decision').
  1. [3]
    By WCR notice of appeal filed on 14 February 2025 the Department, pursuant to ch 13, pt 3, div 1 of the Act, appealed to this Commission against the review decision ('the Department's appeal'). Ms Clement has decided not to be a party to the Department's appeal.
  1. [4]
    In March 2025, the Department, pursuant to r 64B of the Industrial Relations (Tribunals) Rules 2011 ('the Rules') filed four notices of non-party production. The first was directed to Ms Clement's general practitioner, Dr Sam Hariri of The Health Hub Doctors Morayfield ('Dr Hariri' and 'Dr Hariri's NNPP'). The second was directed to Ms Clement's accredited mental health social worker, Dr Carolyn Perry of A T Psychology, Caboolture South ('Dr Perry' and 'Dr Perry's NNPP'). The third was directed to the Nominated Officer, Medicare ('the Medicare NNPP'). The fourth was directed to the Proper Officer, TELUS Health, which is the Employee Assistance Program provider to the Department ('the TELUS NNPP' and collectively 'the four NNPPs'). The four NNPPs were issued by the Industrial Registry on 31 March 2025 and were then served on the non-parties, and on Ms Clement, by the Department's lawyer on 2 April 2025.[4]
  1. [5]
    On 4 April 2025, Ms Clement served objections to the four NNPPs.[5] On 8 April 2025, Dr Perry served an objection to the NNPP served on her.[6] By virtue of r 64F of the Rules, Ms Clement's objections stay the four NNPPs and Dr Perry's objection stays the NNPP served on her.
  1. [6]
    By application in existing proceedings filed on 11 April 2025, the Department:
  • pursuant to r 64G(2)(a) of the Rules, applies:
  1. –for orders lifting the stays on Dr Perry's NNPP and on the TELUS NNPP; and
  1. –for orders directing Dr Perry and TELUS to respectively comply with the NNPPs served on them: and
  • pursuant to r 64G(2)(b) of the Rules, applies for orders varying Dr Hariri's NNPP and the Medicare NNPP '… so as to exclude any documents in the possession or control of Medicare and/or Dr Hariri regarding any surgeries and/or physical procedures from the documents relating to' Ms Clement required to be disclosed under the Medicare NNPP and under Dr Hariri's NNPP ('the Department's application').
  1. [7]
    By its submissions in reply, for reasons referred to later in these reasons, the Department sought to further vary Dr Hariri's NNPP and the Medicare NNPP to further limit their scope to records beginning from 2016.[7]
  1. [8]
    This is my decision about the Department's application.
  2. [9]
    For the reasons that follow, I will grant the Department's application.

Background

The review decision

  1. [10]
    The review decision is annexed to the Department's WCR notice of appeal. The review decision was that:
  • Ms Clement suffered a personal injury of '…chronic adjustment disorder with mixed anxiety and depression';
  • Ms Clement's personal injury arose out of, or in the course of, her employment with the Department and her employment in the Department was a significant contributing factor to that injury; and
  • Ms Clement's personal injury did not arise out of, or in the course of, reasonable management action taken in a reasonable way by the Department in connection with her employment.

The Department's appeal

  1. [11]
    An appeal of this type is a hearing de novo[8] of the issue determined by the review decision,[9] namely, whether Ms Clement has suffered an injury within the meaning of the Act. The legal onus of proof is on the Department to prove, on the balance of probabilities, that Ms Clement did not suffer an injury within the meaning of the Act.[10]
  1. [12]
    Because of the present issue about the four NNPPs, the earlier Directions Orders issued for the hearing and determination of the Department's appeal had been vacated. As a consequence, at the present time, neither the Department nor the Regulator have filed statements of facts and contentions.
  1. [13]
    Schedule 1 to the Department's WCR Notice of appeal filed on 14 February 2025 sets out the grounds of the Department's appeal. Relevantly, the Department contends that the Regulator, in the review decision, erred in every aspect of the application of s 32(1) and s 32(5)(a) and (b) of the Act to Ms Clement's application for compensation.
  1. [14]
    On that basis, the practical effect of the Department's appeal is that, in the hearing and determination of its appeal, it puts in contest the following issues:
  • whether Ms Clement suffered a personal injury of a psychological/psychiatric nature; and, if so
  • whether such a personal injury arose out of, or in the course of, Ms Clement's employment in the Department; and, if so
  • whether Ms Clement's employment in the Department was a significant contributing factor to such an injury; and, if so
  • whether such an injury arose out of, or in the course of:
  1. –reasonable management action taken in a reasonable way by the Department in connection with Ms Clement's employment; or
  1. –Ms Clement's expectation or perception of reasonable management action being taken against her.

The four NNPPs

  1. [15]
    The four NNPPs all provide the same explanation of the matters in issue about which the documents sought to be produced are all directly relevant to the Department's appeal. The four NNPPs state:
  1. Whether or not Ms Silvana Clement suffered a personal injury which was an "injury" for the purpose of s 32 of the Workers' Compensation and Rehabilitation Act 2003; and/or alternatively
  1. Whether Ms Clement sustained a personal injury that arose out of, or in the course of, her employment with the Department of Families, Seniors, Disability Services and Child Safety in the context of stressors identified by the Workers' Compensation Regulator; and/or alternatively
  1. Whether Ms Clement's employment with the Department of Families, Seniors, Disability Services and Child Safety, in the context of the stressors identified by the Workers' Compensation Regulator, was a significant contributing factor to Ms Clement's alleged personal injury under s 32 (1) of the Act.[11]
  1. [16]
    The NNPPs served on Dr Hariri and on Dr Perry provide the same description of the documents to be produced:

All records in the nominated party's possession or control, and which do not contain any deleted or redacted information relating to the treatment, assessment or any consultations with SILVANA CLEMENT (DOB:09/06/1973) including but not limited to admission and claim forms, statements, correspondence, notes, reports, memoranda, medical certificates, medical reports and charts, test results in other documents regarding:

  1. the treatment of Ms Clement for any reason at any time;
  2. all records relating to any diagnosed or suspected medical condition suffered by Ms Clement at any time; and
  3. Ms Clement's claim(s) for workers' compensation.[12]
  1. [17]
    The TELUS NNPP is in a similar form to the NNPPs served on Dr Hariri and on Dr Perry as set out immediately above. The Medicare NNPP seeks production of:

All records in the nominated party's possession or control, and which do not contain any deleted or redacted information relating to SILVANA CLEMENT (DOB:09/06/1973) including but not limited to Medicare Benefits Scheme Summary, Medicare and PBS records/claims history statements and PBS medication reports.[13]

The grounds of objection by Ms Clement and by Dr Perry

  1. [18]
    Ms Clement relevantly objects to the four NNPPs because:
  • the breadth of the NNPPs '…is overly broad, invasive, and a serious violation of my privacy';
  • the documents requested of Medicare and Dr Hariri, about her entire medical history, contain highly sensitive and personal health information the disclosure of which is irrelevant and is not justified;
  • she has not consented to the sharing of her confidential disclosures to Dr Perry;
  • the production of confidential information:
  1. –would adversely affect her as a patient and as a woman;
  1. –would cause her personal medical history to be scrutinised by people who have already negatively impacted on her well-being, which would be deeply intrusive and would negatively affect her mental well-being; and
  1. –would cause her '…significant psychological distress and harm';
  • the disclosure of '…unrelated medical details could exacerbate my condition';
  • documents concerning her entire medical history, including records unrelated to the Department's appeal are irrelevant and constitute '…an unreasonable intrusion into my private medical information'; and
  • the '…principles of necessity and proportionality in human rights law require that any requested personal information be strictly relevant in the least intrusive means available.'[14]
  1. [19]
    Dr Perry objects to the NNPP served on her because:
  • she is able to produce the documentation required '…in a more simple and inexpensive way, by way of producing the report written for Work Cover dated 13/06/24 and the most recent report for Work Cover dated 13/02/25.'; and
  • in her opinion, the release of full case notes '…would generate unnecessary psychological distress for the client which may impede her recovery.'[15]
  1. [20]
    By a second further Directions Order issued on 17 April 2025, I directed the Department, the Regulator, Ms Clement and Dr Perry to file and serve written submissions, and any supporting material, for the hearing and determination of the Department's application on the papers. Ms Clement and Dr Perry filed written submissions. The Regulator did not file any submissions or affidavit material. The Department filed and served written submissions and affidavit material.

The Department's submissions

  1. [21]
    The Department filed and served detailed written submissions in support of its application. The Department's principal written submissions may be summarised by reference to three fundamental points.
  1. [22]
    First, the Department submits that r 64B of the Rules allows a party to require a non-party to produce a document:
  • that is directly relevant to a matter in issue in the proceedings;
  • that is in the possession or under the control of the non-party; and
  • is one which the non-party could be required to produce at the hearing for the proceedings.[16]
  1. [23]
    Secondly, the Department submits that a document will be directly relevant if it tends to prove or disprove an allegation in issue in the proceedings but that the document does not have to itself prove the case of the party seeking production of it.[17]
  1. [24]
    Thirdly, the Department submits that the information sought in the NNPPs ought to be disclosed because it is medical information directly informing the question of whether Ms Clement suffered any psychological injury, the nature of any injury, the date of the injury and the cause of the injury.[18]

Ms Clement's submissions

  1. [25]
    In summary, Ms Clement relevantly submits that:
  • the direct relevance rule contained in r 64B(1)(a) of the Rules is intended to narrow disclosure and not allow '…a general trawl of documents';
  • the release of her '…private notes and medical records do not tend to prove or disprove any of the matters in issue';
  • there is no proof of a prior psychological issue to justify such an invasive request; and
  • the language used by the Department in its submissions in paragraphs 14 and 16 underscores the speculative nature of the request '…revealing an intent to explore undefined or tangential issues rather than to obtain information directly relevant to a matter in dispute.'[19]
  1. [26]
    Paragraphs 24 and 25 of Ms Clement's submissions best summarises the principal ground of her objection:
  1. Moreover, paragraph 2 of the appellant's submissions states: "...the State will be denied a critical avenue of factual enquiry...". This assertion plainly reveals that the State is not pursuing a clearly defined line of relevance but rather seeking broad and speculative access to information in the hope that something useful may emerge. This further underscores my objection that the scope of the proposed disclosure fails to meet the threshold of direct relevance required under the Industrial Relations Rules.
  1. They argue that clinical notes may contradict my self-reporting, yet the key experts – Dr Hariri and Dr Perry – had the full records and found no such contradiction. If the Department disputes their conclusions, they can seek clarification or cross-examine. There is no basis to invade sensitive material already reviewed by qualified clinicians.
  1. [27]
    Ms Clement then makes three further submissions.
  1. [28]
    First, Ms Clement refers to s 25(a) of the Human Rights Act 2019 and submits that the provision protects her right to privacy, the four NNPPs seek '…deeply personal and unrelated medical history with no limitation in scope'; and that s 13 of the Human Rights Act 2019 requires that any interference with a person's human rights must be '…necessary and proportionate' and given that four clinicians have already answered the question of causation of her injury, '…the test is not met.'[20]
  1. [29]
    Secondly, Ms Clement refers to the advice of Dr Perry that disclosure would impede her recovery and points to the opinion of another doctor that if her mental health condition significantly declined or the risks escalated, there may be some consideration of assertive treatment for her within a hospital setting.[21]
  1. [30]
    Thirdly, Ms Clement submits that the four NNPPs '…are vague and limitless' and even with the Department's attempt to '…narrow them, they are still open-ended, not tied to specific issues or providers' and that the Commission '…must ensure disclosure is strictly necessary.'[22]

Dr Perry's submissions

  1. [31]
    Dr Perry, in her submissions, repeats the two grounds upon which  she  based  her objection to the NNPP served on her.[23]
  1. [32]
    The next submission Dr Perry makes is that the reports that have been provided by herself, Dr Hariri, Dr Duke and by Dr David Nguyen, Consultant Psychiatrist ('Dr Nguyen'):

[A]re all consistent in the nature of the events and circumstances that generated Ms Clements [sic] distress. In all assessments undertaken, there is no evidence of a pre-existing condition.[24]

  1. [33]
    In respect of Dr Perry's contention that disclosure of Ms Clement's personal information '…would be likely to generate unnecessary psychological distress for Ms Clements [sic] which may impede her recovery'[25], Dr Perry points to a number of issues, including:
  • the sharing of deeply personal sub-conscious material that has arisen while processing Ms Clement's trauma '…is likely to increase Ms Clements [sic] feelings of vulnerability and re-enforce a lack of safety for her.';[26]
  • Ms Clement has already experienced feeling scrutinised and judged by the Department and sharing '…her deeply personal information is likely to make her feel more scrutinised and unsafe which would not support her recovery';[27]
  • Ms Clement now finds herself in a position again where she is experiencing feelings of powerlessness in relation to the Department and '…the releasing of deeply personal information is likely to increase her feelings of powerlessness which is contrary to her recovery';[28]
  • the disclosure of highly personal memories would violate both the sense of safety and grounding that has been provided to Ms Clement through therapy she has received;[29] and
  • the purpose of case notes is to track the symptoms Ms Clement is experiencing which often arise in nightmares and through exposure to triggers in day-to-day life and that such notes are designed '…to provide a record of symptoms and treatment and while they substantiate her condition, there have been adequate reports which already perform this role.'[30]
  1. [34]
    Dr Perry then submits:
  1. The disclosure of Ms Clements personal information would be a contravention of the AASW Code of Ethics in that I am bound to in my profession. In particular, to 'be mindful to provide a humane service, undertake duty of care and do no harm to others.' (AASW Code of Ethics, 2020).[31]

The Department's submissions in reply

  1. [35]
    In its submissions in reply, the Department submits that:
  • ultimately, having regard to r 6 of the Rules, it is a question of ensuring the just and expeditious resolution of its appeal;[32]
  • in their submissions, Ms Clement and Dr Perry impermissibly argue the merits of the appeal;[33]
  • given Ms Clement's submissions about the scope of the four NNPPs, and having regard to the decision of Deputy President Hartigan in Corney v Workers' Compensation Regulator,[34] it proposes to further vary the NNPPs issued to Medicare and to Dr Hariri to confine them to records beginning from 2016 being the year in which Ms Clement asserts that the Mason Lee tragedy had an emotional impact on her as a worker;[35]
  • the assertions made by Dr Perry in her submissions about the psychological harm to Ms Clement that might arise from the disclosure of the documents sought by the NNPPs, while relevant to the exercise of the discretion of the Commission, must be balanced against the Department's statutory right to appeal and its entitlement to seek disclosure of directly relevant documents for the just and expeditious disposition of its appeal;[36] and
  • while Dr Perry submits that disclosure would not support Ms Clements recovery, there is no suggestion that such impact would reach levels that are beyond management by Dr Perry and other healthcare professionals or that such disclosure would wholly preclude Ms Clement's recovery.[37]

Should the Department's application be granted?

  1. [36]
    In my view, the question of whether or not the Department's application should be granted requires the consideration of three issues:
  • whether the documents sought to be produced are directly relevant to a matter in issue in the proceeding within the meaning of r 64B(1) of the Rules; and, if so
  • whether the issues raised by Ms Clement and Dr Perry about the risks to Ms Clement's mental health and recovery and, or in the alternative, the issues raised by Ms Clement about the operation of s 25(a) of the Human Rights Act  2019, are determinative in respect of the exercise of the Commission's discretion to lift the stays as sought by the Department; and, if not
  • whether the NNPPs served on Dr Hariri and on the Nominated Officer, Medicare should be limited in scope as submitted by the Department in its submissions in reply.

The relevant provisions of the Act and the Rules

  1. [37]
    By virtue of s 553(1) of the Act, the Rules apply to appeals made to this Commission pursuant to ch 13, pt 3, div 1 of the Act. Part 2, div 2, sub-div 7A of the Rules deals with notices of non-party production.
  1. [38]
    Rule 64B of the Rules authorised the four NNPPs served by the Department. That rule provides:

64B  Notice requiring non-party production

  1. A party to a proceeding may, by notice of non-party production, require a person who is not party to the proceeding (the non-party) to produce to the party, within 14 days after service of the notice on the non-party, a document–
  1. directly relevant to a matter in issue in the proceeding; and
  1. in the possession or under the control of the non-party; and
  1. that is a document the non-party could be required to produce at the hearing for the proceeding.
  1. The party may not require production of a document if there is available to the party another reasonably simple and inexpensive way of proving the matter sought to be proved by the document.
  1. The non-party must comply with the notice but not before the end of 7 days after service of the notice on the non-party.
  1. The requirement, under this rule, for a non-party to produce a document is not an ongoing duty.
  1. [39]
    Rule 64C of the Rules provides:

64C  Form and service of notice

  1. A notice must–
  1. state the matter in issue in the proceeding about which the document sought is directly relevant; and
  1. be in the approved form; and
  1. be served on the non-party.
  1. However, the party may serve the non-party only after the party has served all other persons who are required to be served under rule 64D.
  1. [40]
    The objections made by Ms Clements and Dr Perry to the four NNPPs were made pursuant to r 64E of the Rules. That rule provides:

64E  Objection to production

  1. The non-party, or a person who has been served with a copy of the notice under rule 64D, may object to the production of some or all of the documents mentioned in the notice within 7 days after its service or, with the leave of the industrial tribunal, a later time.
  1. Also, another person who would be affected by the notice and who has not been served may object to the production of some or all of the documents mentioned in the notice at any time with the leave of the industrial tribunal.
  1. The objection must–
  1. be written; and
  1. be served on the party; and
  1. if the person objecting (the objector) is not the non-party–be served on the non-party; and
  1. clearly state the reasons for the objection.
  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;
  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. [41]
    Rule 64E(4) of the Rules does not limit the grounds upon which a non-party or other person may object to an NNPP.
  1. [42]
    By its present application, the Department applies to the Commission to exercise its power pursuant to r 64G(2) of the Rules. Rule 64G provides:

64G  Industrial tribunal’s decision about objection

  1. Within 7 days after service of an objection under rule 64E, the party may apply to the industrial tribunal for a decision about the objection.
  1. The industrial tribunal may make any order it considers appropriate including, but not limited to, an order–
  1. lifting the stay; or
  2. varying the notice; or
  1. setting aside the notice.
  1. Unless the industrial tribunal otherwise orders, each party to an application to decide an objection must bear the party’s own costs of the application.
  1. [43]
    Rules 64B-G are similar to rr 242-249 of the Uniform Civil Procedure Rules 1999 which have been considered by the Supreme Court of Queensland.
  1. [44]
    The purpose of the procedure of notice of non-party production is to enable a party to litigation to require a non-party to produce a document, provided that the document is directly relevant to a matter in issue in the proceeding, is in the possession or under the control of the non-party, and is a document that the non-party could be required to produce at the hearing for the proceeding.[38] At the core of that process is the 'one-off' production of the document described in the notice.[39] The process is similar to a subpoena for production of documents.[40]
  1. [45]
    An issuing party must do what r 64C(1)(a) of the Rules requires and specify the matter in issue in the proceeding about which the document is directly relevant.[41]
  1. [46]
    A document will be '…directly relevant to a matter in issue in the proceeding', within the meaning of r 64B(1)(a) of the Rules, if the document would tend to prove or disprove an allegation in issue in the proceedings.[42] The expression '…directly relevant to a matter in issue in the proceeding' should not be taken to mean direct evidence as opposed to circumstantial evidence and, for example, a document may not itself prove a fact in issue but it may nonetheless supply circumstantial evidence, which taken, with other evidence, tends to do so.[43] The question is not whether the allegations in the notice of non-party disclosure are directly relevant; it is whether the documents required to be produced are directly relevant to the allegations.[44] Furthermore, the document does not have to in itself prove the case of the party seeking production of it. [45]
  1. [47]
    Further still, as Burns J stated in Niceforo v Berkshire Hathaway Speciality Insurance Company & Ors[46] (citations omitted):
  1. [19]
    Of course, the notice will need to be founded on a legitimate forensic purpose; plainly enough, the rule will not authorise a fishing expedition. It must accordingly represent a genuine attempt to obtain evidence to support the party's pleaded case as opposed to what might be thought to be an exercise in speculation or general intelligence gathering. In this regard, the onus is on the party seeking production to demonstrate that the documents (or categories of documents) sought are directly relevant to an allegation in issue in the proceeding.
  1. [48]
    Similarly, in Goldenwater LDL Pty Ltd & Ors v Kin Sun Chan & Ors,[47] Flanagan J explained (citations omitted):
  1. [1]
    The term "directly relevant" means "something which tends to prove or disprove the allegation in issue".  Rule 242 does not authorise a fishing expedition.  As to what constitutes a "fishing expedition", Brownie AJA (with whom Spigelman CJ and Ipp AJA concurred) stated:

"[T]he opponents were not entitled to procure the issue of the subpoena for the purpose of fishing, that is, endeavouring not to obtain evidence to support their case, but to discover whether they had a case at all, or to discover the nature of the case of the defendant.  In the language of Lord Wilberforce in [Air Canada v Secretary of State for Trade [1983] 2 AC 394] at 439 there must be something beyond speculation, some common ground for belief that takes the case beyond a mere fishing expedition."

  1. [49]
    A party gaining access to a document pursuant to a notice of non-party disclosure is subject to an implied undertaking not to use it except for the purpose of the litigation.[48]
  1. [50]
    There are no factors stated in r 64G(2) of the Rules that are to be considered in respect of the named discretions that may be exercised. Therefore, such factors must be determined by implication from the subject matter, scope and purpose of the relevant rules.[49] In terms of the unconfined discretion for the Commission to make '…any order it considers appropriate', the factors to be taken into account are also unconfined, except as there may be found in the subject matter, scope and purpose of the Rules, some implied limitation on the factors to which the Commission may legitimately have regard.[50]  Where a discretion is conferred in very general terms, it is largely for the Commission, in light of the matters placed before it by the parties, to determine which matters are relevant and the comparative importance to be afforded to those matters.[51]

Are the documents directly relevant to a matter in issue in the proceeding within the meaning of r 64B(1)(a) of the Rules?

  1. [51]
    This issue involves a consideration of the submissions made by Ms Clement and by Dr Perry about the documents sought to be produced not having any relevance to the Department's appeal.
  1. [52]
    As referred to earlier, the Department's appeal against the review decision to this Commission is a hearing de novo. As explained by Martin J, President in Church v Simon Blackwood (Workers' Compensation Regulator) (citations omitted):[52]

29 In describing the nature of a hearing de novo, Dawson J refers to the parties commencing "the application again". In order to understand what is before the Commission it is necessary, then, to determine what the "application" is. It was put in another way by Lush J in R v Pilgrim where he said:

Generally speaking, on appeal to the quarter sessions the justices are not limited to

the evidence before the petty sessions, but they have to hear the whole matter de

novo, and the issue is the same, and the justices are put in the same position as the

justices in the court below.

(Emphasis added)

30 While it is correct to say that the parties start again, it is necessary to determine what it is that the parties are starting again. As Dawson J said in Harris v Caladine the "complainant starts again and has to make out his case and call his witnesses". What is the "case" to be made out? If, as Lush J put it: "the issue is the same", what is the "issue"?

  1. [53]
    In the present case, the 'issue' is whether or not Ms Clement suffered an injury within the meaning of s  32 of the Act as that was the issue decided in the review decision. [53] The Department has exercised its right, pursuant to ch 13, pt 3, div 1 of the Act, to appeal against the review decision. Having regard to the Department's grounds of appeal, the Department has, in respect of the 'issue', put into contest every element of the definition of injury contained in s 32 of the Act in respect of Ms Clement's application for workers' compensation.[54] Therefore, for the reasons given earlier in paragraph [14] of these reasons, the matters in issue in the proceeding are:
  • whether Ms Clement suffered a psychiatric or psychological injury;
  • if Ms Clement did suffer such an injury, did that injury arise out of, or in the course of, her employment in the Department and, if so, was Ms Clement's employment in the Department a significant contributing factor to such a personal injury; and, if so
  • was Ms Clement's injury withdrawn from being a compensable injury by virtue of the application of either s 32(5)(a) or s 32(5)(b) of the Act.
  1. [54]
    The NNPPs served on Dr Hariri, Dr Perry, Medicare and TELUS Health expressly referred to the matters contained in the first two dot points of the previous paragraph when describing the matters in issue in the proceedings about which the documents, sought to be produced, are directly relevant. In that regard, the Department has complied with r 64C(1)(a) of the Rules.
  1. [55]
    An injury which arises out of employment occurs where there is a causal connection between the employment and the injury.[55] Although the phrase '…arising out of' does not require the direct or proximate relationship which would be necessary if the phrase used was '…caused by', there must be some causal or consequential relationship between the worker's employment and the injury.[56] An injury '…in the course of employment' means an injury sustained while the worker is engaged in the work which is part of the worker's employment but is also something which is incidental to his or her service.[57] The requirement that the employment is a significant contributing factor to the injury requires that the exigencies of the employment must contribute in some significant way to the occurrence of the injury.[58]
  1. [56]
    The Department submitted that the question of whether or not Ms Clement has suffered a psychological injury within the meaning of s 32 of the Act is factually complex and requires a broad review of her circumstances to determine the question. In support of this submission, the Department referred to State of Queensland (Department of Health) v WorkCover Queensland[59] where Industrial Commissioner McLennan stated:
  1. [27]
    The cause and nature of a psychological injury can be difficult to determine, and a conclusion that an injury was work-related requires careful consideration of all of the circumstances which affected a person's psychological health. Any other psychological injuries which were said to have arisen closely in time to the accepted injury could certainly be relevant to determining whether the injury was connected with work.
  1. [57]
    In general, I accept this submission. Medical records of the kind sought to be produced by the Department as particularised by its present application[60] about Ms Clement's psychological state would tend to prove or disprove if Ms Clement had a psychological injury and, if so, its nature. They would also tend to prove or disprove if there was a causal or consequential relationship between Ms Clement's employment and any such injury and, or in the alternative, whether her employment contributed in some significant way to the occurrence of the injury. Further such medical records may supply circumstantial evidence, which taken with other evidence, may tend to prove or disprove those four issues.
  1. [58]
    Given the basis of the Department's appeal to the Commission, it is very probable that the opinions of medical experts will play a significant role in determining the question of whether Ms Clement has suffered an injury within the meaning of the Act. As the Department submits, the prime duty of experts giving opinion evidence is to furnish the Commission with criteria enabling the evaluation of the validity of the expert's conclusions. As a consequence, the factual basis upon which the opinions of Dr Hariri and Dr Perry have been made, should be known.[61] Issues of this kind, concerning expert witnesses in civil cases, were examined by Heydon J in Makita (Australia) Pty Ltd v Sprowles[62] where his Honour stated:

85 In short, if evidence tendered as expert opinion evidence is to be admissible,  it must be agreed or demonstrated that there is a field of "specialised knowledge"; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be "wholly or substantially based on the witness's expert knowledge"; so far as the opinion is based on facts "observed" by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on "assumed" or "accepted" facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert's evidence must explain how the field of "specialised knowledge" in which the witness is expert by reason of "training, study or experience", and on which the opinion is "wholly or substantially based", applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert's specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight. And an attempt to make the basis of the opinion explicit may reveal that it is not based on specialised expert knowledge, but, to use Gleeson CJ's characterisation of the evidence in HG v The Queen (at 428 [41]), on "a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise".[63]

  1. [59]
    For these same reasons, I reject the submissions made by Ms Clement that the documents sought to be produced by the four NNPPs, including private notes and medical records:
  • do not tend to prove or disprove any of the matters in issue; and
  • are irrelevant.
  1. [60]
    Ms Clement's submission is that the four NNPPs, served by the Department, involve speculation to explore undefined or tangential issues rather than obtain information directly relevant to the Department's appeal. Ms Clement's further submission is that the Department's service of the four NNPPs was to access information '…in the hope that something useful may emerge', namely, that the service of the four NNPPs involves a fishing expedition. I reject these submissions. Having regard to the records sought to be produced,  as set out in paragraphs [16] and [17] of these reasons, and as narrowed by its present application in respect of Dr Hariri 's NNPP and the Medicare NNPP (to exclude any documents regarding any surgeries and, or in the alternative '… physical procedures') and for the reasons I give below in relation to the Department's further narrowing of the scope of the documents sought by those two NNPPs, I am not persuaded that the Department seeks production of the records to determine if it has a case.
  1. [61]
    The matters in issue in respect of the Department's appeal are whether Ms Clement suffered a psychological injury and, if she did, its nature, whether that injury has a causal or consequential relationship with her employment, and whether her employment contributed in some significant way to the occurrence of any such injury. For the reasons I have given in paragraphs [53] to [58] of these reasons, the documents sought to be produced by the Department through the four NNPPs are founded on a legitimate forensic purpose, namely, a genuine attempt to obtain evidence to support its case on appeal as articulated in its grounds of appeal.
  1. [62]
    In addition, while I appreciate that Ms Clement is representing herself in respect of the Department's application, her own view about the ultimate conclusion to be drawn from the reports by Dr Hariri and Dr Perry (about whether Ms Clement has a compensable injury)[64] is not a matter that is relevant in respect of the exercise of the Commission's discretion pursuant to r 64G(2) of the Rules. That ultimate issue is for the Commission to decide. Further, it is a question for the Commission as to whether the documents sought to be produced by the four NNPPs are directly relevant to a matter in issue in the proceeding. For the reasons I have given, such a question is to be determined by a consideration of the issue to be decided in the Department's de novo appeal. This includes having regard to the matters that are in contest and, in having regard to those matters, undertaking an objective analysis of the documents sought to be produced.
  1. [63]
    For the same reasons, Dr Perry's submissions, to the extent she submits the medical reports that have been provided by herself, Dr Hariri and other medical practitioners are all consistent in the nature of the events and circumstances that generated Ms Clement's distress, and that there is no evidence of a pre-existing condition, are not determinative in respect of the Department's application.
  1. [64]
    Furthermore, while I appreciate Dr Perry's submissions about the purpose of case notes that she has compiled in respect of her consultations, and her submission that there have been adequate reports which already performed that role (by which I assume Dr Perry refers to previous reports she has prepared for WorkCover Queensland dated 13 June 2024 and 13 February 2025, as set out in her notice of objection), it is the fact that Dr Perry has taken case notes in respect of her consultations with Ms Clement which, as Dr Perry submits, '…substantiate her [Ms Clement's] condition'[65] that makes them directly relevant. That is, such case notes would tend to prove or disprove, at the very least, the causal connection between any psychological injury suffered by Ms Clement and her employment.
  1. [65]
    For the reasons I have given, my view is that the documents sought to be produced by:
  • Dr Hariri's NNPP and the Medicare NNPP as narrowed by the Department's application to exclude any documents regarding '…any surgeries and/or physical procedures';  and
  • Dr Perry's NNPP and the TELUS NNPP,

are directly relevant to matters in issue in the proceeding.

Ms Clement's mental health and recovery and the issue raised by Ms Clement about the operation of s 25(a) of the Human Rights Act 2019

Ms Clement's mental health and recovery

  1. [66]
    Having regard to r 64E(4)(f) of the Rules, my view is that the effect production of the documents, the subject of the four NNPPs, would have on Ms Clement's mental health and recovery is a relevant consideration in respect of the exercise of the discretion to lift the stays.
  2. [67]
    However, also having regard to the information upon which that objection is based, I am not persuaded that it has a material effect against the exercise of that discretion. As explained below, this is because of the nature of the information upon which this ground of objection is based.

Ms Clement's submissions

  1. [68]
    Ms Clement submits, by reference to the report dated 25 March 2025 of Dr Nguyen[66] – which expresses the opinion that should her (Ms Clement's) condition significantly decline, or her risks escalate, there may be some consideration of assertive treatment within a hospital setting – that such opinion '…reinforces the psychological danger of disclosure with respect to my psychological state and the Commission must exercise its discretion mindful of this serious risk.'[67]
  1. [69]
    However, as the Department submits,[68] the opinion of Dr Nguyen, to which Ms Clement refers, was about a decline in her condition or an escalation of risks in general and is not given in the context of the disclosure of medical records, of the kind sought in the four NNPPs, to the Department's lawyers, the Department and the Regulator. For this reason, I do not accept this submission by Ms Clement.

Dr Perry's submissions

  1. [70]
    Dr Perry submits that:
  • the sharing of '…deeply personal sub-conscious material' that has arisen while processing Ms Clement's trauma, '…is likely to increase Ms Clements [sic] feelings of vulnerability and re-enforce a lack of safety for her';[69]
  • sharing Ms Clement's '…deeply personal information is likely to make her feel more scrutinised and unsafe which will not support her recovery';[70]
  • the '…releasing of deeply personal information is likely to increase [Ms Clement's] feelings of powerlessness which is contrary to her recovery.';[71] and
  • in the context of Ms Clement receiving Eye Movement Desensitisation and Reprocessing Therapy, '…the disclosure of highly personal memories would violate both the sense of safety and grounding that has been provided to date.'[72]
  1. [71]
    I am not persuaded by Dr Perry's submissions.  In my opinion, Dr Perry does not adequately explain why production to the Department's lawyers, the Department and the Regulator,[73] of the documents identified in the NNPP served on her, would be likely to have the stated detrimental impact on Ms Clement's mental state and on her recovery.
  1. [72]
    First, there is no explanation of, at the very least, the general nature of the '…deeply personal sub-conscious material', the '…deeply personal information' and the '… highly personal memories' to which reference is made.
  1. [73]
    Secondly, there is no precise explanation of why the release of such material and information to the Department's lawyers, the Department and the Regulator would have the likely effects on Ms Clement pointed to by Dr Perry, namely, Ms Clement feeling unsafe and her recovery being impeded. These assertions are made very generally.  I acknowledge that Dr Perry does state that the experiences Ms Clement encountered in the lead up to 12 September 2023[74] would '…seem to have made her feel extremely vulnerable and targeted'[75] and that she has already experienced feeling '…scrutinised and judged by the Department'.[76] However, there is no clear explanation why the mere production of the documents, in the context of the present litigation between the Department and the Regulator, would be likely to increase or exacerbate Ms Clement's feelings of powerlessness, vulnerability, scrutiny and a lack of safety. Indeed, there is no explanation of what Dr Perry means by Ms Clement feeling '…unsafe.'  The asserted consequences are described very generally. For that reason, the asserted connection between those matters and the stated impediment to Ms Clement's recovery is also not clearly explained. In my view, Dr Perry's expressed opinions are repetitive and vague.
  1. [74]
    Dr Perry's opinions do not persuade me that there would be an effect on Ms Clement, brought about by the production of the documents sought by the service of the NNPP on her, that outweighs the otherwise required production of the documents which are directly relevant to the matters in issue in the Department's appeal.
  1. [75]
    For these reasons,  I am not persuaded that any effect the production of the documents would have on Ms Clement outweighs the Department's entitlement to production of the directly relevant documents which are the subject of the four NNPPs.    

Section 25(a) of the Human Rights Act 2019

  1. [76]
    Section 25 of the Human Rights Act 2019 provides:

25  Privacy and reputation

A person has the right–

  1. not to have the person's privacy, family, home or correspondence unlawfully or arbitrarily interfered with; and
  1. not to have the person's reputation unlawfully attacked.
  1. [77]
    Leaving aside the question of whether the Commission, in determining the Department's application, is bound to apply the Human Rights Act 2019,[77] the Department submits that the four NNPPs do not unlawfully or arbitrarily interfere with Ms Clement's right to privacy.[78]  
  1. [78]
    In this regard, the Department refers to the decision of the Victorian Court of Appeal in Thompson v Minogue ('Minogue')[79] which held, in respect of the equivalent right to s 25 of the Human Rights Act 2019 as contained in s 13 of the Charter of Human Rights and Responsibilities Act 2006:[80] 
  • an unlawful interference with a person's privacy is one which infringes an applicable law;[81]
  • an arbitrary interference is one which is capricious, or has resulted from conduct which is unpredictable, unjust or unreasonable in the sense of not being proportionate to the legitimate aim sought;[82]
  • the phrase '…unreasonable in the sense of not being proportionate to the legitimate aim sought' requires a broad and general assessment of whether, in all the circumstances, the interference extends beyond what is reasonably necessary to achieve the statutory or other lawful purpose being pursued;[83] and
  • the proportionality that inheres in non-arbitrariness is not the same thing as proportionality for the purposes of s 13 of the Human Rights Act 2019.[84]
  1. [79]
    Having regard to these principles, the Department submits that it has a right under the Rules to seek the documents and if the Commission considers its discretion is enlivened, to lift the stays and give it access to the documents as authorised by the Rules.[85] Having regard to the purpose of pt 2, div 2 sub-div 7A of the Rules and to the meaning of unlawful interference as articulated in Minogue, I accept this submission.
  1. [80]
    The Department further submits:[86]
  • the exercise of the discretion, pursuant to r 64G(2) of the Rules, could not amount to an arbitrary interference with Ms Clement's right to privacy; and, as a consequence
  • the  right to privacy is not relevantly engaged  and therefore the proportionality test under s 13 of the Human Rights Act 2019 is not enlivened.
  1. [81]
    I accept this submission. Given the purpose of pt 2, div 2, sub-div 7A of the Rules, the Department's appeal, the basis for that appeal and the reason for the service by the Department of the four NNPPs, there is no arbitrary interference with Ms Clement's right to privacy. The service of the four NNPPs does not amount to interference with Ms Clement's right to privacy that extends beyond what is reasonably necessary to achieve the statutory purpose of the Department's right to appeal against the review decision under the Act and the statutory purpose of pt 2, div 2, sub-div 7A of the Rules. Thus, in these circumstances, and on the authority of Minogue, s 13 of the                      Human Rights Act 2019 is not enlivened.
  1. [82]
    Finally, it was not suggested by Ms Clement that any document described in any of the NNPPs was not in the possession or not under the direct control of the relevant non-party. Similarly, it was not suggested by Ms Clement that any document described in the NNPPs could not be required to be produced at the hearing of the proceeding. Dr Perry did not make any such submissions in respect of the NNPP directed to herself.
  1. [83]
    As a consequence, subject to what I say below about the proposed further variations to the NNPPs served on Dr Hariri and on the Nominated Officer, Medicare, as sought by the Department's submissions in reply, the stays of the four NNPPs will be lifted.

Should the NNPPs served on Dr Hariri and on the Nominated Officer, Medicare be further limited in scope as submitted by the Department in its submissions in reply?

  1. [84]
    As a general proposition, in a case where documents are described by reference to a class, a notice of non-party production would be more likely to survive objection based on r 64E(4)(c) of the Rules if it described the documents by reference to contents demonstrating relevance to an issue, than if it defined the class of the documents by reference to a tendency to prove facts relating to an issue, relevance to it, or the inference to be ultimately drawn. Furthermore, the drawing of such a notice would require attention to detail and accurate conceptualisation, but the more specific the description, the better the chance would be of surviving objection.[87]
  1. [85]
    Given that the requirement for a non-party to produce documents, by virtue of a notice served under pt 2, div 2, sub-div 7A of the Rules, is not an ongoing duty, Dr Hariri's NNPP and the Medicare NNPP must be interpreted as requiring discovery of the described documentation for the whole period Ms Clement was a patient of Dr Hariri,[88] and for the whole period Ms Clement has received benefits from Medicare, to the date of the filing of those NNPPs.[89] Self-evidently, that is too broad.[90]
  1. [86]
    For the reasons given by the Department as referred to in the third dot point of paragraph [35] of these reasons, the Department, as set out in its submissions in reply, proposes to further limit the scope of Dr Hariri's NNPP and the Medicare NNPP, to beginning from January 2016.
  1. [87]
    In that regard, the Department points to material which it submits supports the production of documents from that time, which demonstrates direct relevance to a matter in issue in the Department's appeal.[91]
  1. [88]
    Ms Clement provided WorkCover with a written document entitled 'STATEMENT OF EVENTS' in support of her claim for workers' compensation that was lodged on 12 September 2023. In that statement, Ms Clement states:
  • she has worked for '…Child Safety' in Queensland for about 12 years in Caboolture and then in Morayfield; and
  • in 2016 she was '…exposed and impacted by the Mason Lee tragedy which has a significant emotional impact on me as a worker' and that she promised herself to ensure that her practice was of high quality as the death of a child is a tragic event.[92]
  1. [89]
    Given this issue was raised by the Department in its submissions in reply, I gave Ms Clement and Dr Perry an opportunity to make submissions about it.  Ms Clement availed herself of that opportunity and further submitted (footnote omitted):
  1. I reject the State's assertion that I sustained a psychological injury from the Mason Lee incident in 2016. I was not involved in managing that case. While the event understandably affected the workplace, I did not suffer psychological injury nor seek any medical or psychological treatment. The State's reliance on my mention of the incident is misleading and taken out of context. My full statement was: "…and I promised myself to ensure that my practice was of high quality as the death of a child is a tragic event." This reflected a professional commitment to improvement – not an injury.
  2. Following the incident, the entire office was strongly advised to attend a Telus Health debrief. Like most staff, any attendance by me was precautionary, brief, and unrelated to any diagnosis, treatment, or psychological concern.[93]
  1. [90]
    I cannot accept Ms Clement's submission. As set out above, Ms Clement referred to '…the Mason Lee tragedy' in a document headed 'STATEMENT OF EVENTS' submitted in support of her application for workers' compensation. Ms Clement also stated that she was '…exposed and impacted' by that event which had '… a significant emotional impact on me as a worker.' While Ms Clement did then state she promised herself to ensure her practice was of a high quality as the event was a tragic event, Ms Clement also stated:

I also witnessed lots of my colleagues becoming mentally unwell and getting broken by the system due to a lack of support to all who experienced this tragic event in first person, as well as others like me who have seen these people's life and career destroyed. We were offered counselling, however, the option we have, called EAS failed to provide professional support. Our Wellbeing team as well as the Executive team are aware of the inefficiency of the EAS support and this has been brought up to their attention several times and yet nothing has been done over the years to improve this system of support. This type of support is ineffective mostly due to the few available counsellors who have a considerable waiting list, these counsellors are not specialised in child protection trauma on workers and in many cases their advice are [sic] useless.[94]

  1. [91]
    As a consequence of the above, the Department submits[95] (footnotes omitted):

The range is therefore triggered by the identification of an identified psychological event raised by the employee as affecting her. Despite Ms Clement's view, such an event is evidently directly relevant to the question State of Queensland (Department of Families, Seniors, Disability Services and Child Safety) v Workers' Compensation Regulator [2025] QIRC 179whether an injury, being a psychological injury, exists, including the timing and causes of any such injury. When combined with the initial variation seeking to exclude records about surgeries and medical procedures, the NNPD is significantly and sufficiently narrowed in scope.

  1. [92]
    As I have stated, given that this information pointed to by the Department comes from a document entitled  'STATEMENT OF EVENTS' provided by Ms Clement in support of her application for workers' compensation and, in particular, where she refers to the emotional impact on her as a worker as a result of the event to which she refers, it seems to me that documentation from Dr Hariri and from Medicare from 2016 would be directly relevant to a matter in issue in the proceeding; namely, if Ms Clement does have a psychological injury, whether or not her employment had a causal connection with such a psychological injury. That is, such documentation would tend to prove or disprove that issue.
  1. [93]
    For these reasons, I accept the Department's submissions in reply that the NNPPs served on Dr Hariri and on the Nominated Officer, Medicare should be further varied and limited in scope to only require documents brought into existence from 2016.

Conclusion

  1. [94]
    For the reasons I have given, I will grant relief sought by the Department in its application and lift the stays. Further, in respect of Dr Hariri's NNPP and the Medicare NNPP, I will vary them as sought in the Department's submissions in reply.

Orders

  1. [95]
    I make the following orders:
  1. Pursuant to r 64G(2)(a) of the Industrial Relations (Tribunals) Rules 2011 ('the Rules'), the stay on the notice of non-party disclosure, directed to Dr Carolyn Perry of A T Psychology, 8/107 Morayfield Road, Caboolture South, Queensland, 4150 ('Dr Perry'), issued on 31 March 2025 and served on 2 April 2025, is lifted.
  1. Pursuant to r 64G(2) of the Rules, Dr  Perry is to forthwith produce the documents specified in the notice of non-party disclosure directed to Dr Perry, as issued on 31 March 2025 and served on Dr Perry on 2 April 2025, to the requesting party's lawyer at the requesting party's lawyer's address, or to the requesting party's lawyer's email address, as specified in that notice.
  1. Pursuant to r 64G(2)(a) of the Rules, the stay on the notice of non-party disclosure, directed to the Proper Officer of TELUS Health of Level 4, 340 Adelaide Street, Brisbane, Queensland 4000 ('the Proper Officer, TELUS Health'), issued on 31 March 2025 and served on 2 April 2025, is lifted.
  1. Pursuant to r 64G(2) of the Rules, the Proper Officer, TELUS Health is to forthwith produce the documents specified in the notice of non-party disclosure directed to the Proper Officer, TELUS Health, as issued on 31 March 2025 and served on the Proper Officer, TELUS Health on 2 April 2025, to the requesting party's lawyer at the requesting party's lawyer's address, or to the requesting party's lawyer's email address, as specified in that notice.
  1. The stay on the notice of non-party disclosure, directed to Dr Sam Hariri of The Health Hub Doctors Morayfield, 19-31 Dickson Road, Morayfield, Queensland, 4506 ('Dr Hariri'), issued on 31 March 2025 and served on 2 April 2025 is:
  1. pursuant to r 64G(2)(a) of the Rules, lifted; and
  1. pursuant to r 64G(2)(b) of the Rules, varied as follows:

Party

Date

Description

Dr Hariri

Various from 2016 onwards

From January 2016, all records in the nominated party's possession or control, excluding records regarding any surgeries and/or physical procedures, which do not contain any deleted or redacted information relating to the treatment, assessment or any consultations with SILVANA CLEMENT (DOB: 09/06/1973) including but not limited to,  admission and claim forms, statements, correspondence, notes, reports, memoranda, medical certificates, medical reports and charts and test results in other documents regarding:

  1. the treatment of Ms Clement for any reason at any time;
  2. all records relating to any diagnosis or suspected medical condition suffered by Ms Clement at any time; and
  3. Ms Clement's claim(s) for workers' compensation.
  1. Pursuant to r 64G(2) of the Rules, Dr Hariri is to forthwith produce the documents specified in the notice of non-party disclosure directed to Dr Hariri, as issued on 31 March 2025 and served on 2 April 2025, and as varied by Order 5 hereof, to the requesting party's lawyer at the requesting party's lawyer's address, or to the requesting party's lawyer's email address, as specified in that notice.
  1. The stay on the notice of non-party disclosure, directed to the Nominated Officer, Medicare at GPO Box 9822, Brisbane, Queensland 4001, Email [email protected] ('the Nominated Officer, Medicare'), issued on 31 March 2025 and served on 2 April 2025 is:
  1. pursuant to r 64G(2)(a) of the Rules, lifted; and
  1. pursuant to r 64G(2)(b) of the Rules, varied as follows:

Party

Date

Description

Medicare

Various from 2016 onwards

From January 2016, all records in the nominated party's possession or control, excluding records regarding any surgeries and/or physical procedures, which do not contain any deleted or redacted information relating to SILVANA CLEMENT (DOB:09/06/1973) including but not limited to Medicare Benefits Scheme Summary, Medicare and PBS records/claims history statements and PBS medication reports.

  1. Pursuant to r 64G(2) of the Rules, the Nominated Officer, Medicare is to forthwith produce the documents specified in the notice of           non-party disclosure directed to the Nominated Officer, Medicare, as issued on 31 March 2025 and served on 2 April 2025, and as varied by Order 7 hereof, to the requesting party's lawyer at the requesting party's lawyer's address, or to the requesting party's lawyer's email address, as specified in that notice.

I certify that the preceding [95] paragraphs are a true copy of the Reasons for Decision of Deputy President Merrell.

J.W. Merrell

Deputy President:     ………………………………

(Signature)

Dated: 11 July 2025

Footnotes

[1] Formerly, the Department of Child Safety, Seniors and Disability Services and Multicultural Affairs.

[2] The affidavit of Ms Jelena Versteeg, A/Senior Lawyer, Crown Law sworn on 12 May 2025 ('Ms Versteeg's second affidavit'), exhibit 'JV-07', page 42.

[3] Ms Versteeg's second affidavit, exhibit 'JV-11', page 75.

[4] The affidavit of Ms Jelena Versteeg, A/Senior Lawyer, Crown Law sworn on 10 April 2025 ('Ms Versteeg's first affidavit'), paras. 4-5.

[5] Ms Versteeg's first affidavit, para. 7.

[6] Ms Versteeg's first affidavit, para. 8.

[7] The reply submissions of the State of Queensland, through the Department of Department of Families, Seniors, Disability Services and Child Safety, filed on 26 June 2025 ('the Department's reply submissions'), para. 10.

[8] Church v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 031; (2015) 252 IR 461 ('Church'), [24]-[27] (Martin J, President).

[9] Ibid [37]-[39].

[10] State of Queensland (Queensland Health) v Q-Comp and Beverley Coyne [2003] ICQ 9; (2003) 172 QGIG 1447, 1448 (President Hall).

[11] Ms Versteeg's first affidavit, Exhibit 'JV-01', pages 11, 20, 29 and 37.

[12] Ms Versteeg's first affidavit, Exhibit 'JV-01', pages 12, 21 and 38.

[13] Ms Versteeg's first affidavit, Exhibit 'JV-01', page 30.

[14] Ms Versteeg's first affidavit, Exhibit 'JV-02', pages 45-46.

[15] Ms Versteeg's first affidavit, Exhibit 'JV-03', page 49.

[16] The submissions of the State of Queensland through the of Department of Families, Seniors, Disability Services and Child Safety filed on 15 May 2025 ('the Department's submissions'), para. 8.

[17] The Department's submissions, para. 9.

[18] The Department's submissions, para. 14.

[19] The written submissions of Ms Silvana Clement filed on 12 June 2025 ('Ms Clement's submissions'), paras. 21-22. Paragraphs 14 and 16 of the Department's submissions state (footnotes omitted):

  1. Firstly, the information sought in the NNPDs ought to be disclosed because it is medical information directly informing the question of whether Ms Clement: suffered any psychological injury; the nature of any injury; the date of the injury; and the cause of the injury. It ought to provide documentary, contemporaneous, and historical evidence about Ms Clement's medical history, from which conclusions can be drawn about the question posed by s 32 of the WCR Act.
  2. …
  1. The information sought will shed light on Ms Clement's circumstances and any other factors that ought to be known in understanding Ms Clement's psychological health and factors impacting her health. The material is reasonably expected to include a mix of objective third party information, and previous reporting by Ms Clement of matters related to her psychological health. Evidence of such a character is important to 'the rational resolution of an issue involving the credibility of witnesses' and it is likely the Commission will be faced with resolving disputed facts in the appeal.

[20] Ms Clement's submissions, paras. 27-28.

[21] Ms Clement's submissions, para. 30.

[22] Ms Clement's submissions, para. 31.

[23] The submissions of Dr Carolyn Perry filed on 28 May 2025 ('Dr Perry's submissions'), para. 1.

[24] Dr Perry's submissions, para. 2.

[25] Dr Perry's submissions, para. 1b).

[26] Dr Perry's submissions, para. 7.

[27] Dr Perry's submissions, para. 9.

[28] Dr Perry's submissions, para. 10.

[29] Dr Perry's submissions, para. 11.

[30] Dr Perry's submissions, para. 12.

[31] This is reference to the Australian Association of Social Workers Code of Ethics 2020 ('the Code'). This submission is not meritorious because, as submitted by the Department in para. 18 of its reply submissions, sub-cl 5.4.5 of the Code provides:

  1. 5.4.5Social workers will only reveal confidential information in the circumstances outlined above or in any one or more of the following situations, provided it is permitted by law:
  2. …
• where disclosure is required by law (e.g. court subpoena or statutory requirement).

[32] The Department's reply submissions, para. 5. Rule 6 of the Industrial Relations (Tribunals) Rules 2011 provides:

6 Purpose of rules

The purpose of these rules is to provide for the just and expeditious disposition of the business of the court, the commission, a magistrate and the registrar at a minimum of expense.

[33] The Department's reply submissions, paras. 6-7.

[34] [2023] QIRC 170, [40].

[35] The Department's reply submissions, para. 10.

[36] The Department's reply submissions, para. 14.

[37] The Department's reply submissions, paras. 15 and 16.

[38] See Adani Mining Pty Ltd & Anor v Pennings [2025] QSC 157 ('Adani'), [18] (Freeburn J).

[39] Ibid [19] (Freeburn J). This is because the obligation to respond to a notice of non-party disclosure is not an ongoing duty: Rule 64B(4) of the Industrial Relations (Tribunals) Rules 2011.

[40] Ibid [19].

[41] See Niceforo v Berkshire Hathaway Speciality Insurance Company & Ors [2023] QSC 282 ('Niceforo'), [22] (Burns J).

[42] Ibid [18].  See also Xstrata Queensland Ltd v Santos Ltd & Ors; Santos Ltd & Ors v Xstrata Queensland Ltd [2005] QSC 323, [45] (McMurdo J) and Mohr-Edgar v Legal Aid Queensland [2023] ICQ 025, [42] (Davis J, President).

[43] Niceforo (n 41), [18].

[44] Chenoweth v ING Australia Ltd [2004] QSC 143, [7] (Mackenzie J).

[45] Mohr-Edgar v Legal Aid Queensland [2023] ICQ 025, [42] (Davis J, President).

[46] Niceforo (n 41).

[47] [2020] QSC 358.

[48] Westsand Pty Ltd v Johnson [1999] QSC 337,  [14] (Wilson J) and Murphy Operator & Ors v Gladstone Ports & Anor (No 5) [2020] OSC 36, [39] (Crow J).

[49] Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24, 39-40 (Mason J).

[50] Ibid 40.

[51] Elias v Commissioner of Taxation [2002] FCA 845; (2002) 123 FCR 499, [57] (Hely J).

[52] Church (n 8).

[53] Church (n 8), [31].

[54] Section 32 of the Workers' Compensation and Rehabilitation Act 2003 relevantly provides:

32  Meaning of injury

  1. An injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury.
…
  1. Despite subsections (1) and (3), injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances–
  1. reasonable management action taken in a reasonable way by the employer in connection with the worker’s employment;
  1. the worker’s expectation or perception of reasonable management action being taken against the worker

[55] Kavanagh v Commonwealth [1960] HCA 25; (1960) 103 CLR 547, 558-559 (Fullagar J).

[56] Avis v WorkCover Queensland [2000] QIC 67; (2000) 165 QGIG 788, 788 (President Hall).

[57] Theiss Pty Ltd v Q-Comp [2010] ICQ 27, [3] (President Hall).

[58] Newberry v Suncorp Metway Insurance Ltd [2006] QCA 48; (2006) 1 Qd R 519, [27] (Keane JA, de Jersey CJ at [1] and Muir J at [49] agreeing).

[59] [2020] QIRC 113.

[60] Namely, in respect of Dr Hariri's NNPP and the Medicare NNPP, to exclude any documents regarding '…any surgeries and/or physical procedures'. 

[61] The Department's submissions, para. 17.

[62] [2001] NSWCA 305; (2001) 52 NSWLR 705.

[63] Emphasis added.

[64] Ms Clement's submissions, para. 25.

[65] Dr Perry's submissions, para. 12.

[66] Being a report annexed to her submissions.

[67] Ms Clement's submissions, para. 30.

[68] The Department's reply submissions, para. 13.

[69] Dr Perry's submissions, para. 7.

[70] Dr Perry's submissions, para. 9.

[71] Dr Perry's submissions, para. 10

[72] Dr Perry's submissions, para. 11.

[73] As explained to Dr Perry by the Department's lawyer on 3 April 2025: see Ms Versteeg's first affidavit, para. 6.

[74] Being the date Ms Clement consulted Dr Hariri and '… had a psychological breakdown': see Ms Clement's submissions, para. 3.

[75] Dr Perry's submissions, para. 4.

[76] Dr Perry's submissions, para. 9.

[77] See the Department's submissions, para. 32.

[78] The Department's submissions, paras. 32-33.

[79] [2021] VSCA 358; (2021) 67 VR 301 ('Minogue').

[80] Section 13 of the Charter of Human Rights and Responsibilities Act 2006 provides:

13 Privacy and reputation

A person has the right–

  1. not to have that person's privacy, family, home or correspondence unlawfully or arbitrarily interfered with; and
  1. not to have that person's reputation unlawfully attacked.

[81] Minogue (n 79), [49] (Kyrou, McLeish and Niall JJA).

[82] Ibid, [55].

[83] Ibid, [56].

[84] Ibid, [56] and Johnston v Carroll [2024] QSC 2; (2024) 329 IR 365, [367](f) (Martin SJA). Section 13 of the Human Rights Act 2019 provides:

13  Human rights may be limited

  1. A human right may be subject under law only to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom.
  1. In deciding whether a limit on a human right is reasonable and justifiable as mentioned in subsection (1), the following factors may be relevant –
  1. the nature of the human right;
  1. the nature of the purpose of the limitation, including whether it is consistent with a free and democratic society based on human dignity, equality and freedom;
  1. the relationship between the limitation and its purpose, including whether the limitation helps to achieve the purpose;
  1. whether there are any less restrictive and reasonably available ways to achieve the purpose;
  1. the importance of the purpose of the limitation;
  1. the importance of preserving the human right, taking into account the nature and extent of the limitation on the human right;
  1. the balance between the matters mentioned in paragraphs (e) and (f).

[85] The Department's submissions, para. 34.

[86] The Department's submissions, para. 35.

[87] See CSR Ltd v Casaron Pty Ltd [2003] QSC 126 (Mackenzie J), 3.

[88] As the Department submits in paragraph 10 of its reply submissions, there is no indication how long Ms Clement had been a patient at Dr Hariri's practice.

[89] See Murphy Operator & Ors v Gladstone Ports Corporation & Anor (No 5) [2020] QSC 36, [14] (Crow J).

[90] See Corney v Workers' Compensation Regulator [2023] QIRC 170, [40] (Deputy President Hartigan).

[91] The Department's reply submissions, para. 10.

[92] Ms Versteeg's second affidavit, Exhibit 'JV01', page 8.

[93] The further written submissions of Ms Clement filed on 7 July 2025.

[94] Ms Versteeg's second affidavit, Exhibit 'JV01', page 8.

[95] The Department's reply submissions, para. 10.

Close

Editorial Notes

  • Published Case Name:

    State of Queensland (Department of Families, Seniors, Disability Services and Child Safety) v Workers' Compensation Regulator

  • Shortened Case Name:

    State of Queensland (Department of Families, Seniors, Disability Services and Child Safety) v Workers' Compensation Regulator

  • MNC:

    [2025] QIRC 179

  • Court:

    QIRC

  • Judge(s):

    Merrell DP

  • Date:

    11 Jul 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
Adani Mining Pty Ltd v Pennings [2025] QSC 157
2 citations
Jump To
Cite 1 - [2025] QSC 157
Cite 2 - [2025] QSC 157
Air Canada v Secretary of State for Trade (1983) 2 AC 394
1 citation
Jump To
Cite 1 - (1983) 2 AC 394
Avis v WorkCover Queensland (2000) 165 QGIG 788
2 citations
Jump To
Cite 1 - (2000) 165 QGIG 788
Cite 2 - (2000) 165 QGIG 788
Avis v WorkCover Queensland [2000] QIC 67
2 citations
Jump To
Cite 1 - [2000] QIC 67
Cite 2 - [2000] QIC 67
Chenoweth v ING Australia Limited [2004] QSC 143
2 citations
Jump To
Cite 1 - [2004] QSC 143
Cite 2 - [2004] QSC 143
Church v Simon Blackwood (Workers' Compensation Regulator) (2015) 252 IR 461
2 citations
Jump To
Cite 1 - (2015) 252 IR 461
Cite 2 - (2015) 252 IR 461
Church v Workers' Compensation Regulator [2015] ICQ 31
2 citations
Jump To
Cite 1 - [2015] ICQ 31
Cite 2 - [2015] ICQ 31
Corney v Workers' Compensation Regulator [2023] QIRC 170
3 citations
Jump To
Cite 1 - [2023] QIRC 170
Cite 2 - [2023] QIRC 170
Cite 3 - [2023] QIRC 170
CSR Limited v Casaron Pty Ltd [2003] QSC 126
2 citations
Jump To
Cite 1 - [2003] QSC 126
Cite 2 - [2003] QSC 126
Elias v Commissioner of Taxation (2002) 123 FCR 499
2 citations
Jump To
Cite 1 - (2002) 123 FCR 499
Cite 2 - (2002) 123 FCR 499
Elias v Commissioner of Taxation [2002] FCA 845
2 citations
Jump To
Cite 1 - [2002] FCA 845
Cite 2 - [2002] FCA 845
Goldenwater LDL Pty Ltd v Kin Sun Chan [2020] QSC 358
2 citations
Jump To
Cite 1 - [2020] QSC 358
Cite 2 - [2020] QSC 358
Johnston v Carroll (2024) 329 IR 365
2 citations
Jump To
Cite 1 - (2024) 329 IR 365
Cite 2 - (2024) 329 IR 365
Johnston v Commissioner of Police [2024] QSC 2
2 citations
Jump To
Cite 1 - [2024] QSC 2
Cite 2 - [2024] QSC 2
Kavanagh v The Commonwealth (1960) 103 CLR 547
2 citations
Jump To
Cite 1 - (1960) 103 CLR 547
Cite 2 - (1960) 103 CLR 547
Kavanagh v The Commonwealth [1960] HCA 25
2 citations
Jump To
Cite 1 - [1960] HCA 25
Cite 2 - [1960] HCA 25
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
2 citations
Jump To
Cite 1 - (2001) 52 NSWLR 705
Cite 2 - (2001) 52 NSWLR 705
Makita (Australia) Pty Ltd v Sprowles (2001) NSWCA 305
2 citations
Jump To
Cite 1 - (2001) NSWCA 305
Cite 2 - (2001) NSWCA 305
Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24
2 citations
Jump To
Cite 1 - (1986) 162 CLR 24
Cite 2 - (1986) 162 CLR 24
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40
2 citations
Jump To
Cite 1 - [1986] HCA 40
Cite 2 - [1986] HCA 40
Mohr-Edgar v Legal Aid Queensland [2023] ICQ 25
3 citations
Jump To
Cite 1 - [2023] ICQ 25
Cite 2 - [2023] ICQ 25
Cite 3 - [2023] ICQ 25
Murphy Operator v Gladstone Ports Corporation (No 5) [2020] QSC 36
2 citations
Jump To
Cite 1 - [2020] QSC 36
Cite 2 - [2020] QSC 36
Newberry v Suncorp Metway Insurance Ltd[2006] 1 Qd R 519; [2006] QCA 48
4 citations
Jump To
Cite 1 - [2006] QCA 48
Cite 2 - [2006] QCA 48
Cite 3 - [2006] 1 Qd R 519
Cite 4 - [2006] 1 Qd R 519
Niceforo v Berkshire Hathaway Specialty Insurance Company [2023] QSC 282
2 citations
Jump To
Cite 1 - [2023] QSC 282
Cite 2 - [2023] QSC 282
Queensland v WorkCover Queensland [2020] QIRC 113
2 citations
Jump To
Cite 1 - [2020] QIRC 113
Cite 2 - [2020] QIRC 113
State of Queensland (Queensland Health) v Q-Comp & Coyne [2003] ICQ 9
2 citations
Jump To
Cite 1 - [2003] ICQ 9
Cite 2 - [2003] ICQ 9
State of Queensland v Q-COMP and Beverley Coyne (2003) 172 QGIG 1447
2 citations
Jump To
Cite 1 - (2003) 172 QGIG 1447
Cite 2 - (2003) 172 QGIG 1447
Theiss Pty Ltd v Q-COMP [2010] ICQ 27
2 citations
Jump To
Cite 1 - [2010] ICQ 27
Cite 2 - [2010] ICQ 27
Thompson v Minogue [2021] VSCA 358
2 citations
Jump To
Cite 1 - [2021] VSCA 358
Cite 2 - [2021] VSCA 358
Thomson v Minogue (2021) 67 VR 301
2 citations
Jump To
Cite 1 - (2021) 67 VR 301
Cite 2 - (2021) 67 VR 301
Westsand Pty Ltd v Trevor William Johnson [1999] QSC 337
2 citations
Jump To
Cite 1 - [1999] QSC 337
Cite 2 - [1999] QSC 337
Xstrata Queensland Ltd v Santos Ltd [2005] QSC 323
2 citations
Jump To
Cite 1 - [2005] QSC 323
Cite 2 - [2005] QSC 323

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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