Black v Stone

[2024] QMC 6

MAGISTRATES COURTS OF QUEENSLAND

CITATION:	Black v Stone [2024] QMC 6
PARTIES:	Dennis Black
(Applicant)
v
Mark Douglas Stone
(Respondent)
FILE NO/S:	MAG-
DIVISION:	Industrial Appeal
PROCEEDING:	Interlocutory Application
ORIGINATING  COURT:	Industrial Magistrates Court
DELIVERED ON:	08/05/2024
DELIVERED AT:	Brisbane
HEARING DATE:
MAGISTRATE:	Pinder
ORDER:	Applying the relevant provisions of s 58 (sub-s 2). I refuse to issue an attendance notice to produce directed to the non- party.
CATCHWORDS:	ATTENDANCE NOTICE TO PRODUCE – NOTICE OF NON-PARTY PRODUCTION
Coal Mining Safety and Health Act 1999 (Qld)
Industrial Tribunal Rules 2011 (Qld), r 59, r 60, r 60A, r 61, r
64A, r 64G
COUNSEL:	Mr C.A Massy for the appellant
SOLICITORS:	McGinnes & Associates for the appellant
Ms N. Morrison for the respondent
RSHQ Legal for the respondent

INTRODUCTION

1. The applicant Black was the holder of a First-Class Mine Manager Certificate of Competency and a Second-Class Mine Manager Certificate of Competency (the applicant’s certificates) which were cancelled by the respondent, the Chief Executive Officer (CEO) of Resources Safety and Health Queensland (RSHQ), the regulator responsible for administrating the Coal Mining Safety and Health Act 1999 (Qld) (the Act). The applicant Black has appealed against that decision to the Industrial Magistrates Court pursuant to section 236(A) of the Act and that proceeding has been on foot for some time.

2. These reasons are to determine a notice of objection to the inspection of documents produced under an attendance notice pursuant to s 60(A) of the Industrial Relations

(Tribunal) Rules 2011 (Qld) (the Rules).

1. The attendance notice to produce, the notice of objection and the applicant’s submissions in response were all filed some time ago. However, in the course of many mentions and hearings, dealing with the now numerous interlocutory applications in the proceeding, this issue has sat dormant, with the hope and expectation based on indications by the parties, that it may be resolved without the requirement for adjudication. -

2. It has now become apparent that that is not so, and these reasons deal with the issue and the application to set aside the attendance notice.

THE PARTIES’ MATERIAL

The Applicant Black

1. The applicant Black relies on the following:

- Attendance notice to produce – filed 7 March 2023

- Applicant’s submissions on the objection to the attendance notice – filed 26
March 2023.

The Respondent Stone

1. The respondent Stone relies on the following:

- List of documents produced in compliance of the attendance notice (and the
documents produced in a sealed envelope) – filed 17 March 2023.

- Notice of objection to inspection of documents (upon behalf of the respondent) –
filed 17 March 2023.

- Notice of objection to inspection of documents (on behalf of the Secretary of the
Board of Examiners) – filed 17 March 2023.

THE RELEVANT STATUTORY PROVISIONS

1. The substantive appeal against a decision of the CEO is pursuant to s 236(A) of the Act to the Industrial Magistrates Court.

2. The parties’ correctly both contend that in relation to these proceedings, the Industrial

Relations (Tribunal) Rules apply.

1. The Industrial Relations (Tribunal) Rules (the Rules) apply to these proceedings by virtue of rule 5.

2. In respect to attendance notices provided under the rules (rightly characterised in the party submissions as akin to subpoenas), the rules relevantly provide as follows:

-  The registrar or court may issue an attendance notice to a person on the request
of a party – rule 58(1).

-  The attendance notice must be in the approved form and compliant – rule 58(4).

-  If the attendance notice is an attendance notice to produce a document or thing, it
must adequately describe the document and similarly be compliant – rule 59.

-  Where documents are produced under an attendance notice to the court the registrar may allow a party to the proceedings to inspect the documents unless one or more of the following persons objects to inspection:

(a) The person who produced the document or,

(b) Another party to the proceeding.

- The registrar may refuse a request of a party to issue an attendance notice requiring a non-party to a proceeding to produce a stated document – rule 58(2).

1. The attendance notice to produce filed by the applicant is directed to Helena Langton the Secretary to the Board of Examiners, a non-party to the proceeding.

2. That issue and the registrar’s power to refuse requests to issue an attendance notice to a non-party does not appear to have been considered or dealt with by the parties, noting the requirements of rule 58 (2) and subdivision 7, and part 2 sub-div 7A (which deals with notices of non-party production).

THE DOCUMENTS SOUGHT TO BE PRODUCED

1. The appellant Black seeks production from Ms Helena Langton (Secretary to the Board of Examiners) of the following:

1) The names of any Certificate of Competency holders who have had their Certificates of Competency suspended or cancelled under the Coal Mining Safety

and Health Act 1999 (Qld).

2)   The details of the reason for suspension or cancellation of the Certificate of Competency holders’ certificates.

1. As is observed in the outlines filed by the appellant and respondent the appellant seeks the production of those documents to address the “penalty phase” in respect of the hearing of the appeal, in the event that the respondent proves the alleged grounds for

suspension or cancellation pursuant to s 197A of the Coal Mining Safety and Health

Act 1999 (Qld).

1. The appellant contends that the documents are relevant to the question of whether if a ground for suspension or cancellation is established that power should be exercised.

2. The attendance notice to produce documents therefore directly seeks copies of documents relating to a person, other than a party and a non-party, in this case those persons whos’ Certificates of Competency have been suspended or cancelled.

IS THE ATTENDANCE NOTICE TO PRODUCE TO A NON-PARTY

1. The attendance notice to produce issued by the registrar at the request of the applicant Black is directed to Helena Langton (Secretary to the Board of Examiners). The Act at part 10 creates the establishment of a Board of Examiners.

2. Section 187 provides the Board of Examiners must appoint a person to be secretary to the board. It would appear uncontroversially the respondent to the attendance notice to produce (Ms Langton) is for present purposes the Secretary to the Board of Examiners under part 10 of the Act.

3. As noted, the substantive appeal against the cancellation of the Certificate of Competency is pursuant to s 236(a) of the Act and the respondent to the appeal is the CEO of Resources Safety and Health Queensland.

4. Relevantly, schedule 3 dictionary provides:

- CEO means the Chief Executive of RSHQ

- RSHQ means the statutory body called Resources Safety and Health Queensland
established under the Resources Safety and Health Queensland Act 2020 (Qld).

- Part 2 div 1 of the Resources Safety and Health Queensland Act provides for a Chief Executive Officer (CEO) who’s appointment is made pursuant to s 14 of that Act.

1. The respondent to the substantive appeal (and one of the objectors to the attendance notice to produce) is Mark Douglas Stone (as CEO).

2. The recipient of the attendance notice to produce, Ms Langton, is therefore a non-

party to the proceedings (see s 64A and s 64B(1) of the Act).

[23]  

ISSUE OF ATTENDANCE NOTICE TO PRODUCE – NON-PARTY

1. The attendance notice to produce (Form 32B) filed by the appellant with the registry has not been “issued” by the registrar or the court.

2. Annexed and marked A is a copy of the notice which whilst completed and filed by the appellant, does not bear the signature of the registrar indicating that the attendance notice to produce has been “issued.”

3. In exercising discretion to issue an attendance notice to produce the court or registrar has additional legislative considerations.

4. Section 58(2) of the Act provides relevantly as follows:

   “2) A member of the commission (court) or the registrar may refuse a request of a party to issue an attendance notice requiring a person, who is a non- party to the proceedings, to produce a stated document if satisfied:

(a)	The party could require production of the document under sub- division 7A and,
(b)	The party has not made reasonable attempts under sub-div 7A to obtain the document.”

1. Sub-division 7A – notices of non-party production provides a different regime and additional requirements in respect of notices of production to a non-party to the proceeding.

2. The attendance notice to produce filed with the registry of the court does not on the copy retained on the court file indicate that it was issued by the registrar and is not endorsed as being issued.

3. The parties’ submissions appear premised on the attendance notice to produce having been issued by the registrar. The respondent and the recipient of the notice (Ms Langton) have both objected to the production of documents under the attendance notice pursuant to s 60A.

A PRELIMINARY ISSUE – THE ISSUE OF AN ATTENDANCE NOTICE TO
PRODUCE

1. The attendance notice to produce not having been issued by the registrar pursuant to s 58(1) the issue for determination is, the matter now being referred to the court, whether to refuse to issue the attendance notice to produce to a non-party.

2. That discretion is informed by the requirements of s 58(2) where the court may refuse a request of a party to issue an attendance notice to produce to a non-party if satisfied:

- The party could require the production of documents under sub-div 7A and,

- The party has not made reasonable attempts under sub-div 7A to obtain the
documents.

1. I am satisfied that the party (the applicant) could require production of the documents from a non-party under sub-div 7A.

2. I am not satisfied that the party (the applicant) has made reasonable attempts under sub-div 7A to obtain the documents.

3. The provisions in relation to notices of non-party production prescribe the manner in which the notice of production of documents occurs with a non-party to the proceedings and:

- Provides for service of a copy of the notice on a person other than a party and a
non-party about whom information is sought by the notice – s 64D(1)(a).

- Provides for both the non-party and the person who is being served with a copy
of the notice under s 64D to object to the production.

- Provides reasons for objection to the production by both the non-party and a person about whom information is sought by the notice including but not limited to those in s 64E(4).

1. Obviously, none of those provisions had been engaged by the proposed manner of production of documents under the attendance notice to produce.

2. Those safeguards contained within sub-div 7A affect the rights of both a non-party to the proceedings (here Ms Langton as Secretary to the Board of Examiners), and a person (other than a party and a non-party) about whom information is sought by the notice. In this case, all of those persons who are sought to be identified in the notice to produce being holders of Certificates of Competency who have had their Certificates of Competency suspended or cancelled.

3. The safeguards provided by sub-div 7A in respect of notices of non-party production ought not be circumvented in those circumstances.

4. Applying the relevant provisions of s 58(sub-s 2), I refuse to issue an attendance notice to produce directed to the non-party.

   Annexure 'A'