DRP v Workers' Compensation Regulator (No. 2) - [2025] QIRC 259

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	DRP v Workers' Compensation Regulator (No. 2) [2025] QIRC 259
PARTIES:	DRP (Appellant) v Workers' Compensation Regulator (Respondent)
CASE NO:	WC/2025/61
PROCEEDING:	Application in existing proceedings filed 18 June 2025 Application in existing proceedings filed 19 June 2025
DELIVERED ON:	30 September 2025
MEMBER:	Caddie IC
HEARD AT:	On the papers
ORDERS:	The orders contained in paragraph [155] of these Reasons for Decision.
CATCHWORDS:	INDUSTRIAL LAW – APPLICATION WITHIN EXISTING PROCEEDINGS – where there is an objection to a notice of non-party disclosure – where the Appellant in substantive proceedings caused two notices of non-party disclosure to be issued – where two objections were received from the non-party – consideration of arguments that the objections were received out of time – consideration of the relevance of documents – first notice set aside in its entirety – second notice varied.
LEGISLATION AND INSTRUMENTS:	Acts Interpretation Act 1954 s 39A, Dictionary Fair Work Act 2009 (Cth) s 15AA Industrial Relations Act 2016 (Qld) ss 536, 567 Industrial Relations (Tribunals) Rules 2011 rr 28, 64B, 64C, 64D, 64E, 64F, 64G Information Privacy Act 2009 (Qld) ss 12, 40 Workers' Compensation and Rehabilitation Act 2003 (Qld) ss 11, 30, 32, 34, 558, Sch 3 Work Health and Safety Act 2011 (Qld) s 7
CASES:	DP World Brisbane Pty Ltd v Rogers & Anor [2014] ICQ 10 Mohr-Edgar v Legal Aid Queensland [2023] ICQ 25 Smith v Workers' Compensation Regulator [2025] QIRC 105 State of Queensland (Department of Families, Seniors, Disability Services and Child Safety) v Workers' Compensation Regulator [2025] QIRC 179 Weston and Parer v State of Queensland (Department of Justice and Attorney-General) (No. 4) [2016] QIRC 75 Reasons for Decision

The Appellant in the substantive proceedings, by way of two Notices of Non-Party Disclosure ('NNPD's') sought production of documents by Energy Queensland Ltd ('Energy Queensland'), a non-party to the proceedings.[1]
[1] The name of the Appellant in substantive proceedings is subject to a de-identification order and is de-identified accordingly.
The substantive matter is an appeal against a decision of the Workers' Compensation Regulator relating to an alleged psychological injury. The appeal is conducted by the Commission as a hearing de novo.[2] The substantive matter will be heard and determined by a different member of the Commission.
[2] Workers Compensation and Rehabilitation Act 2003 (Qld) s 558; Industrial Relations Act 2016 (Qld) s 567.
Energy Queensland objected to the disclosure of all documents sought by both NNPD's issued by the Appellant.
The Appellant filed two applications within existing proceedings seeking that the Commission issue decisions regarding the objections.[3]
[3] Pursuant to rule 64G of the Industrial Relations (Tribunals) Rules 2011.
This Decision relates to whether Energy Queensland is required to produce any or all the documents identified in the NNPD's. In accordance with the power conferred by s 536 of the Industrial Relations Act 2016 (Qld) ('the IR Act') I have determined to consider and decide both applications together.[4]
[4] Section 536 provides that the Commission may make orders…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DRP v Workers' Compensation Regulator (No. 2)

Details

AGLC: DRP v Workers' Compensation Regulator (No. 2) [2025] QIRC 259
Case: [2025] QIRC 259
Decision Date: 30 September 2025

CaseChat Overview and Summary

The case of DRP v Workers' Compensation Regulator (No. 2) involved a dispute between the Appellant, who was an employee on placement with Energy Queensland, and the Respondent, Energy Queensland, regarding the production of documents under two Notices of Non-Party Disclosure (NNPD). The Appellant sought documents that were alleged to be relevant to establishing whether any management action was undertaken in a reasonable manner and identifying any instances of workplace conduct that may have contributed to the alleged injury. Energy Queensland objected to the NNPDs on the basis of relevance, confidentiality, and time. The matter was brought before the Court, which had to determine whether the objections were justified and if the NNPDs should be set aside or varied.

The primary legal issues the Court had to decide were whether the objections to the NNPDs were received out of time, the relevance of the documents sought, and whether the documents were confidential. The Court also had to consider the principles governing the issue of NNPDs, including the requirement for documents to be directly relevant to a matter in issue in the proceeding and the prohibition against requiring production of a document if there is another reasonably simple and inexpensive way of proving the matter sought to be proved by the document. Additionally, the Court had to consider the obligations under the Information Privacy Act 2009 (Qld) and the Right to Information Act 2009 (Qld).

The Court found that the objections were not received out of time and proceeded to consider the relevance and confidentiality of the documents. The Court noted that the Appellant's requests were not overly broad and had a legitimate basis, as they related to management actions that should have the same organisational meaning as intended by Energy Queensland. The Court also found that the Appellant's arguments regarding statutory rights to access documents under the Information Privacy Act 2009 (Qld) had merit, and that Energy Queensland's objections were practically unjustifiable and undermined procedural fairness and access to justice. The Court set aside the first NNPD in its entirety and varied the second NNPD to address the issues of relevance and confidentiality.

The Court's final orders were that the first NNPD was set aside in its entirety, and the second NNPD was varied to address the issues of relevance and confidentiality, ensuring that the Appellant's statutory rights to access relevant documents were upheld, while also considering Energy Queensland's obligations under the Information Privacy Act 2009 (Qld) and the Right to Information Act 2009 (Qld).

Orders

Orders of the court

The orders contained in paragraph [155] of these Reasons for Decision.

Background

Background to the litigation

Energy Queensland seek that both notices be set aside, or that appropriate orders be made to vary the notices as required. Background At all times relevant to the substantive matter, the Appellant was employed by Peoplebank and was on placement with Energy Queensland as part of a labour hire arrangement, working as a Project Manager. The injury is said to have been sustained during this placement and arose from alleged bullying by a co-worker on the Integrated Grid Planning Project. On 30 May 2025, the Appellant filed a NNPD directed to Energy Queensland seeking that Energy Queensland provide documents said to be relevant to establishing whether any management action was undertaken in a reasonable manner and identifying any instances of workplace conduct that may have contributed to the alleged injury.[5] [5] NNPD filed 30 May 2025, 2. The Appellant filed a second NNPD on 2 June 2025 seeking that Energy Queensland also provide documents comprising lists or summaries or otherwise relating to 'management decisions.' [6] [6] NNPD filed 2 June 2025, 3. Energy Queensland, by letter from Herbert Smith Freehills Kramer on 11 June 2025, objected to the NNPD filed by the Appellant on 2 June 2025 ('the first objection'). On 13 June 2025 Herbert Smith Freehills Kramer sent a second objection to the NNPD filed by the Appellant on 30 May 2025 ('the second objection'). The Appellant filed two applications in existing proceedings, one on 18 June 2025 relevant to the first objection and one on 19 June 2025 related to the second objection. The Appellant and Energy Queensland filed written submissions pursuant to two Directions Orders issued on 20 June 2025. The Respondent in substantive proceedings declined to make submissions, as was the case with three individually named affected parties.[7] [7] Relevant to the notice subject to the second objection.Relevant Principles NNPD's allow a party engaged in litigation to obtain documents that are directly relevant to a matter in issue in the proceeding, that is in the possession or under the control of a non-party, and is a document the non-party could be required to produce at hearing for the proceeding.[8][8] State of Queensland (Department of Families, Seniors, Disability Services and Child Safety) v Workers' Compensation Regulator [2025] QIRC 179, [44] (Merrell DP). The requirements for issue of NNPD's are set out by the Industrial Relations (Tribunal) Rules 2011 ('the Rules'): 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—(a) directly relevant to a matter in issue in the proceeding; and(b) in the possession or under the control of the non-party; and(c)that is a document the non-party could be required to produce at the hearing for the proceeding.(2)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.(3)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.(4)The requirement, under this rule, for a non-party to produce a document is not an ongoing duty.64C Form and service of notice(1) A notice must—(a)state the matter in issue in the proceeding about which the document sought is directly relevant; and(b) be in the approved form; and(c) be served on the non-party.(2)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. 64D Others affected by notice(1) The party must serve a copy of the notice on—(a)a person, other than a party and the non-party, about whom information is sought by the notice; and(b)if the party knows the non-party does not own a document required to be produced—the owner of the document.(2) Subrule (1) does not apply if the party's lawyer—(a)believes, on reasonable grounds, that a person who would otherwise be required to be served under subrule (1) is likely to fabricate evidence or perpetrate fraud if the person becomes aware of the notice; and(b)has completed a certificate in the approved form stating that the lawyer has that belief and that the interests of justice are likely to be jeopardised if the person were served with the notice.(3)A certificate by the party's lawyer under subrule (2) must be tendered to the industrial tribunal at the hearing for the proceeding.(4)Further, subrule (1)(b) does not apply if, after reasonable inquiries, the party can not identify the owner of the document.(5)The party must write the name and address of anyone who must be served under this rule on the notice and on all copies of the notice.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The Appellant seeks the Commission issue a decision pursuant to rule 64G which relevantly 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. (2)The industrial tribunal may make any order it considers appropriate, including but not limited to, an order – (a)lifting the stay; or (b)varying the notice; or (c)setting aside the notice. (3)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. Davis J, President, when examining the relevance of documents, has stated as follows (citations omitted):[11][42] To be relevant, a document does not have to in itself prove the case of the party seeking production of it. It is sufficient if the document tends to prove or disprove an allegation in issue in the proceedings. [43] Here, a fact in issue between the parties is the content of the conversation of 9 May 2018. Ms Mohr-Edgar asserts that the subject of the conversation was her being moved. Legal Aid says the subject of the conversation was client files. Evidence which tends to disprove the position of one party does, in fact, assist the proof by the other party of its contrary position. That is because, logically, in proving a particular position, a party disproves a contrary position. Put another way, if there are two competing positions and one is disproved, the likelihood of the other being found to be correct is enhanced.[11] Mohr-Edgar v Legal Aid Queensland [2023] ICQ 25. Merrell DP's consideration of what will be 'directly relevant to a matter in issue in the proceeding' is also useful (citations omitted):[12]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. 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. 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. Furthermore, the document does not have to in itself prove the case of the party seeking production of it. [12] State of Queensland (Department of Families, Seniors, Disability Services and Child Safety) v Workers' Compensation Regulator [2025] QIRC 179, [46]. Key principles arising out of the caselaw were summarised by Fisher IC (citations omitted):[13] [4] The case law relating to disclosure establishes a number of principles including the following which are relevant to the task confronting the Commission:·A decision of the Commission to order disclosure is a quintessential exercise of discretion. ·To be discoverable a document must relate to the question or issues to be decided by the proceedings.·A document is relevant if it contains information which enables the party calling for production of the document to advance its own case or damage the case of their adversary or it is a document which may fairly lead to a train of enquiry which may have either of those consequences. ·A party will not be required to produce documents where to do so would be oppressive. ·A request for disclosure must not be in the nature of a fishing expedition in the sense that it is an endeavour not to obtain evidence to support a case but to discover whether there is a case at all. ·Orders for disclosure should not be made for the purpose of enabling a party to attack credibility. [13] Weston and Parer v State of Queensland (Department of Justice and Attorney-General) (No. 4) [2016] QIRC 75.Preliminary Issue: Were the objections served out of time?

Ratio Decidendi

Legal Principle Established

The Appellant re-emphasises that the category of documents sought has been particularised as far as possible, given the nature of the claim and the vague responses received.[44][44] Ibid. Consideration I agree with Energy Queensland there is a general issue regarding particularity in relation to the details of some of the disclosure requests and this is a feature of both notices. These matters will be dealt with in more detail when I consider the specific issues with each of the categories of document later in this Decision. That does not mean I consider both notices should be dismissed on this ground. As outlined above, I consider there is a legitimate basis for the Appellant to be seeking disclosure of documents from Energy Queensland that relate to the management response that should, as a matter of common sense, have the same organisational meaning as intended by EQL when advising that Energy Queensland "is satisfied that reasonable management action was conducted in a reasonable manner".[45] Lack of particularity is capable of being addressed by varying the notices as appropriate and to the extent the category of documents sought otherwise complies with disclosure requirements. [45] Affidavit of DRP, filed 19 June 2025, Email to WorkCover from Ms Dandeker dated 12 September 2024.(3) Confidentiality Energy Queensland asserts in their objection of 11 June 2025 that the requested documents are confidential in nature, stating: The disclosure of documents by a non-party should not go beyond what is strictly necessary in the circumstances. In this regard, to the extent the Notice requires production of documents relating to internal decisions about your engagement with Energy Queensland (and it seems…that it does) such records are confidential in nature and their relevance to the Proceeding has not been adequately articulated so as to inform any relevant basis for production. The Appellant argues that several legislative provisions of the Information Privacy Act 2009 (Qld) enshrine statutory rights for individuals to access documents held by government entities:[46] ·section 12, which defines personal information as information or opinions, including information or opinions in a database, whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent or can be reasonably ascertained from the information or opinion; and ·section 40, which the Appellant says confers on individuals the right to access documents of an agency to the extent they contain personal information of the individual, and which the Appellant says 'applies fully' to government owned corporations such as Energy Queensland.[46] Affidavit of DRP, filed 18 June 2025, Schedule, 6. It is further argued by the Appellant that: ·unless there exists some specific exemption, Energy Queensland is obliged to provide 'my own personal records'; ·assertions that documents are 'confidential' is not sufficient to bar access to them, with the Office of the Information Commissioner noting that agencies must demonstrate the documents meet 'the stringent criteria for exemption' before disclosure will be barred;·providing the Appellant with access to his own documents is not breaching confidentiality obligations because these are directed at preventing third party disclosures, not to the individual about whom the disclosure relates; ·there is an expectation of transparency on public entities; ·the Right to Information Act 2009 (Qld) features a pro-disclosure bias, which the Appellant says means that in the absence of clearly identified exemptions, it is in the public interest that disclosure of the documents be made; ·concerns Energy Queensland may have can be addressed by 'controlled disclosure' methods such as redaction of certain parts of documents·Energy Queensland's objection is practically unjustifiable and undermines procedural fairness and access to justice, particularly when one considers the Appellant is self-represented.